RED v. State, 3D04-849.

• Citation: 903 So.2d 206
• Decision Date: 20 October 2004
• Docket Number: No. 3D04-849.,3D04-849.
• Parties: R.E.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

903 So.2d 206

R.E.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.

No. 3D04-849.

District Court of Appeal of Florida, Third District.

October 20, 2004.

Rehearing and Rehearing Denied April 12, 2005.

Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, and Joseph N. De Vera, Certified Legal Intern, for appellee.

Before GREEN, RAMIREZ, and SHEPHERD, JJ.

Rehearing and Rehearing En Banc Denied April 12, 2005.

RAMIREZ, J.

R.E.D. appeals the trial court's adjudication of a delinquency order upon which the court found him guilty of obstruction, as well as the trial court's order of commitment. We reverse because there is no evidence to support the charge of obstruction.

Miami-Dade Police Officer Raymond Robinson, an undercover narcotics team officer, testified that he first saw R.E.D. together with an unnamed male on a street corner located near a target house. Officer Robinson observed R.E.D. and the unnamed male walk over to the target house. He then heard R.E.D. tell two other unnamed males who also approached the target house "99 that's the police there." The unnamed male who was with R.E.D. thereafter told Officer Robinson "hey that's the police, you need to get out of here." R.E.D. and the other unnamed males subsequently fled. The police thereafter arrested R.E.D.

Appellee State of Florida charged R.E.D. with the single offense of unlawfully resisting, obstructing, and opposing, without violence, a law enforcement officer in the lawful execution of a legal duty or process, pursuant to section 843.02, Florida Statutes (2003). The State based its charge on R.E.D.'s obstruction of the police officer's ongoing investigation. The trial court subsequently found R.E.D. guilty of the charged offense of obstruction and adjudicated him delinquent.

R.E.D. argues that he did not resist a police officer or obstruct a police officer engaged in the lawful exercise of a legal duty. We agree and adopt Judge Gunther's analysis in Jay v. State, 731 So.2d 774, 775 (Fla. 4th DCA 1999). "To support a conviction under section 843.02, the state must show: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that lawful duty." See also S.G.K. v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995). In D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995), the court provides three legal duties, when coupled with words alone, which will result in obstruction of justice, (1) serving process; (2) legally detaining a person; or (3) asking for assistance. The State does not argue that Officer Robinson was serving process or asking for assistance. The State contends that Officer Robinson was legally detaining a person. Thus, if the officer could have arrested the two other unnamed males who fled as a result of R.E.D.'s warning, the State would have a valid obstruction prosecution. The problem for the State, however, is that at the point that R.E.D. warned the two unnamed males, the unnamed males had not yet committed any crime. The State argues that an interference with an officer's ongoing sting operation constitutes obstruction. This is an argument that the court in Jay expressly rejected.

In Jay, the officer involved in a sting operation attempted to solicit two females when the defendant instructed the females not to enter a vehicle and identified the officer as a cop. The two females eventually walked away and the police did not arrest them. The court concluded that there was no evidence that the two females had committed any crime upon which the officer could have based an arrest. Thus, the officer was "not legally detaining a person," and therefore he was not engaged in the lawful execution of any legal duty. Jay, 731 So.2d at 777.

We find that Officer Robinson, like the officer in Jay, was not involved in the process of detaining anyone when he encountered R.E.D., and he was thus not engaged in the lawful execution of any legal duty. When R.E.D. warned the two unnamed males of the police's presence, Officer Robinson was not yet prepared to arrest the two unnamed males and had no other basis upon which to prevent the escape of the unnamed males as suspects. The unnamed males had simply approached the target house, were not involved in any criminal activity, and were never arrested. These facts are quite different from the facts in Porter v. State, 582 So.2d 41, 42 (Fla. 4th DCA 1991), where the defendant's words, "28 plain clothes," impeded the officers' attempt to arrest known drug dealers who effectively escaped apprehension. In the case before us, Officer Robinson was thus not involved in the execution of a legal duty when R.E.D. warned the two unnamed males of the police's presence.

We therefore reverse R.E.D.'s conviction for obstruction and remand this cause to the trial court.

GREEN, J., concurs.

SHEPHERD, J. dissenting.

I respectfully dissent. No one yells "99 police" to signal that the ice cream truck is coming. Forecasting "99 police" is meant to alert all nearby hearers of police presence, so that any illegal acts can quickly come to a close, evidence can be flushed, and law enforcement can be frustrated.

This case is on all fours with Porter v. State, 582 So.2d 41 (Fla. 4th DCA 1991), where the lookout Porter yelled out certain code words and caused suspected drug dealers to run from the scene. The police had had the area under surveillance and were hoping to have the element of surprise to their advantage until Porter shouting "28 plainclothes" foiled their drug sweep. Porter was arrested and convicted for obstructing and interfering with the officers in performance of their duties. "In short, Porter served as a lookout for drug dealers and because of his warning to them they were able to escape from the police officers." Porter, 582 So.2d at 42.

In Porter, the circuit court in considering the testimony of the police officer noted that it was

well aware of ... lookouts who[se] sole purpose is to aid and assist others engaged in criminal endeavors. And they do so by notifying others [that] the police are in the area so that they may discard their evidence. That is not constitutionally protected speech.... It does constitute in the court's view evidence of the crime of obstruction....

Id.

Similarly here also, on December 12, 2003, Officer Raymond Robinson had been conducting a reverse operation in the subject neighborhood, and a couple of the houses had already been taken down. Detectives were posted both inside and outside the homes under surveillance, so that buyers could be directed in to make the sale. Officer Robinson was meandering outside of the target house on his bicycle, and sometimes on foot, with an ear piece under his hooded street attire to keep in contact with the detectives inside. His official duties in support of the operation were to observe whether persons were selling in the area, to see what people were warning about the police, and to alert the officers in the house of who was coming to purchase drugs. Officer Robinson testified that twelve arrests had already been made that day as a result of the reverse operation in that neighborhood.

On the day in question, while Officer Robinson and his associates inside were engaged in carrying out the sting operation, two individuals were about to enter the gates of the target house when R.E.D. gave them the unmistakable warning to flee — "99 that's the police there." R.E.D.'s companion told Robinson to skedaddle, with a "get out of here, poppy." As a result of the warning, the two unnamed individuals who were approaching the house changed directions and left. R.E.D. was arrested by other officers in the area for obstructing police work.

Undoubtedly, R.E.D.'s speech-conduct obstructed the police officer's ongoing investigation and brought their sting operation to a grinding halt. In my opinion, the lower court was correct in finding that R.E.D. was guilty of violating § 843.02, Fla. Stat. (2003) in "obstruct[ing] ... any officer ... in the execution of any legal duty."

The majority's conclusion, relying on Jay v. State, 731 So.2d 774 (Fla. 4th DCA 1999), that an officer must legally or physically detain a suspect before a lookout can be charged with obstruction, is illogical. In Jay, the undercover officer was engaged in a discussion with two prostitutes when Jay warned them to discontinue association by identifying the officer as a cop.

I believe Jay was wrongly decided. It makes little sense to condition the concept of "execution of legal duty," to mere physical apprehension after the legal elements for a crime are complete. I am confident that the officers in Jay were not talking to the ladies there for their own pleasure in seeking witty banter. The course of conversation engaged in with the prostitutes beforehand in that case was as much the execution of official police duties, as would have been their subsequent detainment and arrest of the ladies, should they have so solicited. A lookout through his words of warning can interfere with the execution of law enforcement during the pre-commission stage of the crime, as well as during the post-commission arrest stage with his actions. See J.V. v. State, 763 So.2d 511, 513 (Fla. 4th DCA 2000) (Polen, J. dissenting) (...