J.D.H. v. State, 2D06-3974.
| Decision Date | 16 November 2007 |
| Docket Number | No. 2D06-3974.,2D06-3974. |
| Parties | J.D.H., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
J.D.H. appeals from the withhold of adjudication and the sentence imposed after he pleaded guilty to possession of cocaine following the trial court's denial of his dispositive motion to suppress. Because J.D.H. was arrested without probable cause and because the contraband was found in a search incident to that unlawful arrest, we reverse and remand for discharge.
The facts in this case are essentially undisputed. For reasons not developed in the record, members of the Tampa Police Department decided to conduct a trespass investigation at a basketball court in the Robles Park public housing project at 11 p.m. on the night of February 6, 2006. Officer Nicholas Wilson testified that the basketball court was closed at that time of night, but the court is not fenced and there are no signs indicating the operating hours of the court. Instead, he testified that the operating hours for the basketball court are in the lease agreement signed by residents of Robles Park. The only signs in the area are "No Loitering" signs. Both Officer Wilson and Officer Felicia Pecora testified that Robles Park is known for marijuana sales after dark. Both officers also testified that their reason for going to this basketball court was to conduct trespass investigations which, in their experience, would inevitably lead to drug arrests.
Shortly after 11 p.m., Officer Wilson and Officer Mack Graham drove toward the basketball court in a marked patrol car. Officer Pecora waited a short distance away hidden between two buildings. As Officer Wilson approached the court in his car, he saw a group of teenage boys and young adult men congregating on the court. When someone in the group spotted the officers, the entire group fled, running in different directions.
For reasons also not developed in the record, Officer Graham gave chase to a boy who turned out to be J.D.H. He yelled for J.D.H. to stop, but J.D.H. continued running. When J.D.H. ran between the buildings where Officer Pecora was waiting, she also ordered J.D.H. to stop. J.D.H. did not immediately stop, but ultimately stopped when Officer Pecora pointed her taser at J.D.H. When J.D.H. stopped, Officer Pecora immediately arrested him for "not obeying the order of Officer Graham, and my order, for him to stop." A search incident to the arrest revealed the cocaine.
The trial court found that the officers had a reasonable suspicion to stop J.D.H. due to his flight from the officers in a high-crime area. The court recognized that while the flight would provide reasonable suspicion to stop J.D.H., it would not, standing alone, give the officers probable cause to arrest him for obstructing or opposing an officer without violence. However, despite this finding and the clear testimony of the officers that J.D.H. was immediately arrested rather than simply stopped, the trial court denied J.D.H.'s motion to suppress. This was error.
This court and others have repeatedly held that the simple act of fleeing from officers, without more, does not constitute the offense of resisting or obstructing an officer. See, e.g., Yarusso v. State, 942 So.2d 939, 943 (Fla. 2d DCA 2006); J.J.N. v. State, 696 So.2d 804, 805 (Fla. 2d DCA 1997); M.M.H. v. State, 929 So.2d 628, 629 (Fla. 3d DCA 2006); Baker v. State, 813 So.2d 1044, 1046 (Fla. 4th DCA 2002). Instead, an individual is guilty of resisting or obstructing an officer by flight only if he flees while knowing of the officer's intent to detain him and if the officer is justified in detaining the individual before he flees. Yarusso, 942 So.2d at 943; J.J.N., 696 So.2d at 805; V.L. v. State, 790 So.2d 1140, 1142-43 (Fla. 5th DCA 2001) (). In this case, it appears that J.D.H. did flee while knowing of the officers' intent to detain him. However, neither Officer Wilson nor Officer Pecora testified to any facts that would support a legal basis to detain J.D.H. before he fled. Accordingly, because J.D.H. fled from officers who had no legal right to detain him, he could not have been lawfully arrested for resisting an officer without violence.
The State argued before the trial court that the officers had a reasonable suspicion that J.D.H. was trespassing before he fled. According to the State, because the officers could lawfully detain J.D.H. on suspicion of trespassing, his flight did constitute resisting without violence. However, the facts do not support this argument.
The crime of trespass occurs when an individual, without being authorized, licensed, or invited, willfully enters or remains on property as to which notice against entering or remaining has been given, either by actual communication to the offender or by posting or fencing. See § 810.09(1)(a), Fla. Stat. (2006). Here, there was no evidence that J.D.H. had been given a trespass notice or had other actual notice that the basketball court was closed and thus that his presence there was unlawful. Further, the evidence was undisputed that the basketball court was not posted or fenced. In the absence of such evidence, the officers had nothing other than a hunch that J.D.H. was trespassing at the basketball court. They possessed no articulable facts to reasonably suspect that J.D.H. had unlawfully entered or remained on the basketball court. Thus, they had no reasonable suspicion sufficient to detain J.D.H. for trespassing.
The State suggests that the notice to residents in their leases concerning the opening times of the basketball court was sufficient to constitute actual notice to J.D.H. that he was trespassing. However, the State presented no evidence that J.D.H. was a resident of the Robles Park housing project. Further, J.D.H., as a sixteen-year-old, would not have been a party to the lease agreement. Thus, this lease provision, even assuming that it exists, would not be sufficient to give the officers the reasonable suspicion necessary to support the detention of J.D.H.
The State also suggests that the officers had a reasonable suspicion that J.D.H. was "loitering" and thus could have detained him for that offense. However, the crime of loitering is not committed simply by standing under a "no loitering" s...
To continue reading
Request your trial
- C.E.L. v. State
- Gray v. State
- C.E.L. v. State
- Livingston v. State, No. 5D07-3198.
-
Search and seizure
...warning, and no actual notice that the court was closed. The officer had only a hunch that defendant was trespassing. J.D.H. v. State, 967 So. 2d 1128 (Fla. 2d DCA 2007) LEOs arrested a person on drug charges, and he agreed to assist with arresting his supplier. The informant made calls to ......