Perry v. State

• Decision Date: 07 November 2007
• Docket Number: No. 4D01-2049.,4D01-2049.
• Parties: Willie PERRY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

968 So.2d 70

Willie PERRY, Appellant, v. STATE of Florida, Appellee.

No. 4D01-2049.

District Court of Appeal of Florida, Fourth District.

November 7, 2007.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

ON MANDATE FROM THE SUPREME COURT OF FLORIDA

TAYLOR, J.

We reconsider on remand our opinion in Perry v. State, 846 So.2d 584 (Fla. 4th DCA 2003), which was quashed by the Florida Supreme Court following its decision in Tillman v. State, 934 So.2d 1263 (Fla.2006). In Tillman, the supreme court held that section 776.051(1), Florida Statutes, which prohibits the use of force to resist an arrest, regardless of the illegality of a law enforcement officer's actions, applies only to arrest situations. The court further held that to convict a defendant of battery on a law enforcement officer and resisting an officer with violence for acts committed outside arrest scenarios, the state must prove that the officer was lawfully executing a legal duty.¹

The issue which the supreme court directed us to address in light of Tillman is whether a strip search performed by an intake booking deputy at the county jail is a part of the arrest process, such that the prohibition in section 776.051(1) against the use of force to resist an arrest applies in this case. In this case, appellant, who was convicted of resisting an officer with violence during an attempted strip search, argues that he was justified in using force to resist the strip search because it was not being lawfully performed. We agree with appellant that the strip search in this case, which deputies attempted at the jail during booking procedures after appellant's arrest had concluded, was not a part of the arrest process and, further, was not lawfully performed. Because the state failed to prove that the deputies were lawfully executing a legal duty at the time of appellant's forcible resistance to the search, the trial court erred in denying appellant's motion for judgment of acquittal.

On September 17, 1998, Deputy Armando Enrique was working as a booking deputy in the central intake division of the main jail in Broward County. His job entailed screening new inmates and introducing them into the system. As part of the booking process, the deputy was required to search the inmates for weapons and contraband and fingerprint and photograph them. The type of search conducted, whether a pat-down or a strip search, depended upon the crime for which the inmate was arrested. An inmate who was arrested for a violent felony involving weapons or a narcotics offense was subject to a strip search. A strip search required the inmate to squat and pull his buttocks apart for inspection.

Appellant was arrested by a Hallandale Beach police officer for a narcotics offense and brought to the main jail. He was placed in the custody of the Broward Sheriff's office and turned over to Deputy Enrique for the booking process. Pursuant to the Broward Sheriff's general policy requiring a strip search for inmates charged with a felony drug offense, the deputy took appellant into the strip search room and ordered him to disrobe for a strip search. The sheriff was not present at that time and, according to Deputy Enrique, he did not need the authorization of anyone at the jail to perform the strip search on appellant.

Once inside the strip search room, appellant complied with Deputy Enrique's orders to disrobe; but he refused to be searched. Appellant became very loud and verbally abusive, declaring that he would not allow his anal area to be inspected. When Deputy Anton responded to Deputy Enrique's call for assistance, he saw appellant flailing his arms and yelling in a combative manner. Deputy Enrique grabbed appellant's arm and appellant fell to the ground. Appellant became violent and started kicking his feet and throwing his hands up at the officers. He punched Deputy Enrique in the face and kicked Deputy Anton in both legs. Eventually, the officers were able to restrain appellant and place shackles on him.

Appellant was tried by jury for battery on a law enforcement officer and resisting an officer with violence. He was acquitted of the battery charge but convicted of resisting an officer with violence. As to the resisting charge, the information alleged that appellant obstructed or opposed Deputies Enrique and Anton, "in the lawful execution of a legal duty then being performed by the said officers, to wit: the detention of [defendant], by the said [defendant] offering or doing violence to the person of the said officers, to-wit: fighting with and striking [them]. . . ."

At the close of the state's and the defense case, appellant moved for a judgment of acquittal on both charges, asserting that he could not be convicted of the charges because the strip search he allegedly resisted with violence was not performed in compliance with Florida law and thus the deputies were not lawfully executing their duties. The trial court denied his motion for judgment of acquittal. Appellant filed an appeal of his conviction and sentence for resisting an officer with violence.

We affirmed appellant's conviction and sentence for resisting an officer with violence. In so ruling, we relied upon section 776.051(1), Florida Statutes, which prohibits the use of force to resist an unlawful arrest, and disagreed with "appellant's argument that the rule prohibiting the use of force against a known police officer is limited to an arrest situation." Perry v. State, 846 So.2d at 587. We noted that courts have applied the prohibition against the use of violence against officers who conducted illegal stops, searches, and detentions. We cited, along with other cases, the fifth district's decision in Tillman v. State, 807 So.2d 106, 109 (Fla. 5th DCA 2002). There the court held that a defendant was not justified in using violence to resist police officers even though the officers' entry into the defendant's residence and subsequent pat-down and detention of the defendant were unlawful. In this case, where the defendant was "already in custody, undergoing post-arrest procedures," we reasoned that "the prohibition against violently resisting or opposing an officer would apply as well." Perry, 846 So.2d at 588.

The defendant obtained review in the Florida Supreme Court. The issue he presented was whether the statutory prohibition against the use of force to resist an arrest applies apart from arrest scenarios. The supreme court held that it did not and quashed our decision, based upon its decision in Tillman v. State, 934 So.2d 1263 (Fla.2006). The court remanded Perry for reconsideration, stating:

We must quash the Fourth District's decision because it is contrary to our construction of section 776.051(1) in Tillman. The Fourth District relied on the Fifth District's decision in Tillman, which we later quashed, for the proposition that the use of force against a known police officer extends to illegal stops, searches, and detentions. See Perry, 846 So.2d at 587. We expressly rejected this view in Tillman, and cannot permit the same erroneous interpretation of section 776.051(1) to stand here. However, we decline to decide whether an arrest under section 776.051(1) encompasses post-arrest intake procedures such as the strip search in this case. Neither the Fourth District in this case nor this Court in Tillman addressed this issue. This matter, as well as a separate jury instruction issue raised by Perry, are for the Fourth District to address in the first instance under the changed legal landscape of our decision in Tillman.

Perry v. State, 953 So.2d 459, 460 (Fla. 2007).

Having received supplemental briefs from the parties, we now address these issues. First, we must decide whether the strip search performed at the jail during intake booking procedures was a part of the arrest process such that the statutory prohibition against the use of force to resist an illegal arrest applies in this case. If we determine that the strip search was not part of the arrest process, we must then decide whether the state presented sufficient proof to allow the jury to find that the deputies were acting "in the lawful execution of a legal duty" when appellant violently resisted their efforts to strip search him. We did not decide this issue before.

At trial, appellant's defense to the charge of resisting an officer with violence was that he was justified in forcibly opposing the deputies' unlawful attempts to strip search him. The state, relying on section 776.051(1), Florida Statutes, asserted that this was not a viable defense. Section 776.051(1) provides:

A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

Tillman rejected the state's position, holding that section 776.051(1), by its plain language, only forecloses the defense of justifiable use of force to a defendant who resists an illegal arrest by a law enforcement officer. 934 So.2d at 1269. It held that the defense is available to a defendant who forcibly resists illegal acts committed by a law enforcement officer outside an arrest scenario. Appellant contends that the strip search he resisted occurred outside an arrest scenario. According to appellant, the deputies did not commence the strip search until after his arrest had concluded and his pre-trial detention had begun.

As appellant points out in his supplementary brief, when an arrest occurs is well-defined, but "the law has failed to produce a definitive parameter for the moment at which the process of arrest ends and some other form of custody begins." Albritten v. Dougherty County, Ga., 973 F.Supp. 1455, 1459 (M.D.Ga.1997). Tillman did not resolve this issue because the facts in that...