Burgess v. State

• Decision Date: 28 May 1975
• Docket Number: No. 74-816,74-816
• Citation: 313 So.2d 479
• Parties: Leon Norman BURGESS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 479

313 So.2d 479

Leon Norman BURGESS, Appellant, v. STATE of Florida, Appellee.

No. 74-816.

District Court of Appeal of Florida, Second District.

May 28, 1975.

James A. Gardner, Public Defender, Sarasota, and Durand J. Adams, asst. Public Defender, Bradenton, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

The appellant was charged with resisting arrest with violence contrary to Fla.Stat. § 843.01 and was tried by jury. After the state rested its case, appellant moved for a judgment of acquittal under RCrP 3.380. Upon denial, appellant changed his plea to nolo contendere to the lesser offense of resisting arrest without violence proscribed by Fla.Stat. § 843.02. Appellant was placed on probation for three years and now appeals the judgment and sentence of the trial court.

There is no dispute as to the essential facts. Between 9:00 and 10:00 A.M. on August 8, 1973, while on routine patrol, Officer Gary Hitchcox observed two men walking down a street in St. Petersburg. One left the other and cut through a yard, thereby arousing the officer's suspicion. Officer Hitchcox circled the block twice and the second time around came upon the same two men walking together. The smaller of the two men left the other, the appellant, and started to cross a field. The smaller man was walking a dog on a leash across the field and when appellant saw the officer's police cruiser he yelled something to the smaller man who then ran. This action by appellant further aroused the officer's suspicions. Officer Hitchcox left his police cruiser and pursued the running man for about two blocks, but could not catch him. Returning to his cruiser he again came upon the appellant who was now with two other men. He asked appellant if he knew the man who ran but appellant refused to answer. He then asked appellant for some identification but he refused to identify himself. Being unable to learn anything from the appellant, Officer Hitchcox returned to his police cruiser and asked for a backup unit. As additional officers arrived to assist, Officer Hitchcox again stopped the appellant and asked him for some identification. The appellant again refused to identify himself, whereupon the officer told the appellant:

'If you don't give me the information, your name, or give me some identification, I'm going to place you under arrest for obstruction.'

According to the officer, appellant responded by stating:

'Well, you'll have to fight me to take me to jail.' Officer Hitchcox attempted to place the appellant under arrest for obstructing a police officer without violence. By this time with additional police officers on the scene, the appellant fought the police inflicting minor injuries on two of them. Appellant's actions gave rise to the charge of resisting arrest with violence being placed against him.

The appellant pled nolo contendere, reserving the right to appeal the trial court's denial of his motion for judgment of acquittal. State v. Ashby, Fla.1971, 245 So.2d 225; Faction v. State, Fla.App.2d 1974, 290 So.2d 75. Since the evidence did not show any lawful basis for the appellant's arrest, he could not be found guilty of resisting arrest. Therefore, the trial court erred in denying appellant's motion. We reverse.

The evidence revealed a very uncooperative attitude on the part of the appellant. We can well appreciate that the police officer believed the appellant was unreasonable in failing to respond to his requests for identification. Nevertheless, the court's function is to determine whether there was a lawful basis for appellant's arrest.

While it is permissible for a police officer to detain an individual under Florida's Stop and Frisk Law, Fla.Stat. § 901.151, we are unaware of any requirement of law for an individual citizen to disclose his identity under the factual situation Sub judice. In Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court upheld the right to stop and frisk individuals, with Justice White, in his concurring opinion stating:

'There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, The person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.' 392 U.S. at 34, 88 S.Ct. at 1886, 20 L.Ed.2d at 913. (Emphasis supplied)

While it is unnecessary that an arrestee be guilty of the crime for the arrest to be lawful, Canney v. State, Fla.App.2d 1973, 298 So.2d 495, still there must be legal grounds for the arrest for it to be valid. See City of Miami v. Albro, Fla.App.3d 1960, 120 So.2d 23. The arrestee cannot be convicted under either Fla.Stat. §§ 843.01 or 843.02, unless the arrest is lawful. Licata v. State, 1945, 156 Fla. 692, 24 So.2d 98; English v. State, Fla.App.1st 1974, 293 So.2d 105; Kirby v. State, Fla.App.4th 1969, 217 So.2d 619; Roberts v. State, Fla.App.3d 1962, 142 So.2d 152. The Florida view is consistent with the common law rule that one who resists an unlawful arrest may not be found guilty of resisting arrest. Of course, if an arrestee uses excessive force, however, he may be guilty of another offense, such as assault or homicide. 5 Am.Jur.2d, Arrest. § 94.

The right to resist an unlawful arrest has been the subject of much recent discussion. ¹ We support the reasoning and the conclusion so well articulated by the Supreme Court of Alaska in its opinion in Miller v. State, Alaska 1969, 462 P.2d 421, 426-27, wherein that court receded from the common law rule which allows forceful resistance to an unlawful arrest, stating:

The weight of authoritative precedent supports a right to repel an unlawful arrest with force. United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210 (1948); John Bad Elk v. United States, 177 U.S. 529, 537, 20 S.Ct. 729, 44 L.Ed. 874 (1900); United States v. Heliczer, 373 F.2d 241, 248 (2d Cir.1967), cert. den. 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359; 1 Wharton, Criminal Law & Procedure, Sec. 216 (1957). This was the rule at common law. It was based upon the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty.

But certain imperfections in the functioning of the rule have brought about changes in some jurisdictions. A new principle of right conduct his been espoused. It is argued that if a peace officer is making an illegal arrest but is not using force, the remedy of the citizen should be that of suing the officer for false arrest, not resistance with force. The legality of a peaceful arrest may frequently be a close question. It is a question more properly determined by courts than by the participants in what may be a highly emotional situation. Because officers will normally overcome resistance with necessary force, the danger of escalating violence between the officer and the arrestee is great. What begins as an illegal misdemeanor arrest may culminate in serious bodily harm or death.

The control of man's destructive and aggressive impulses is one of the great unsolved problems of our society. Our rules of law should discourage the unnecessary use of physical force between man and man. Any rule which promotes rather than inhibits violence should be re-examined. Along with increased sensitivity to the rights of the criminally accused there should be a corresponding awareness of our need to develop rules which facilitate decent and peaceful behavior by all.

The common law rule was developed in a time when self-help was a more necessary remedy to resist intrusions upon one's freedom.

'(It) was developed largely during a period when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for a...