A.W. v. State

Decision Date07 March 2012
Docket NumberNo. 4D10–4923.,4D10–4923.
Citation82 So.3d 1136
PartiesA.W., a child, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HERE

Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, J.

A.W. appeals the disposition order finding him guilty of battery on a law enforcement officer, resisting an officer without violence and criminal mischief. Because the evidence failed to establish that the arresting officers were acting in the lawful execution of a legal duty, we reverse the finding of guilt as to resisting an officer without violence.

During appellant's trial, an officer testified that she responded to an anonymous 911 call reporting a peeping tom/prowler. When she arrived at the community from which the call originated, she was “flagged” down by people sitting in a car. The people indicated that they had made the 911 call. They explained to the officer that, after someone looked into their window, they looked outside and saw two males. The officer followed the 911 callers as they drove to the front of the community where they stopped and pointed out the defendant as one of the males. The officer did not obtain the 911 callers' names or addresses, did not obtain a copy of the 911 call and was not sure whether they lived in the home where the peeping occurred. Wishing to remain anonymous, the 911 callers left the area after identifying the defendant and could not later be located by law enforcement.

Upon the identification, the officer exited her vehicle and approached appellant, along with a second officer who had arrived on the scene. She asked appellant for his name and address, but he refused to answer. The officer explained that she was conducting an investigation and again asked appellant to provide identifying information. Appellant began to make a call on his cell phone and the officer asked him to stop. Appellant ignored this request. The second officer who was also present reached for appellant's arm, which prompted appellant to begin “flailing” and yelling. Appellant was handcuffed and placed in the back of a patrol car. At trial, appellant made a motion for judgment of dismissal as to the resisting without violence charge, arguing that the officers were not in the lawful execution of a legal duty because they lacked reasonable suspicion to detain him. The motion was denied.

A trial court's denial of a motion for judgment of dismissal is reviewed de novo. See M.M. v. State, 72 So.3d 328, 330 (Fla. 4th DCA 2011). “If the evidence, taken in a light most favorable to the state does not support a conviction, the motion must be granted.” T.L.T. v. State, 53 So.3d 1100, 1102 (Fla. 4th DCA 2011). A conviction for resisting an officer without violence requires proof that (1) the officer was engaged in the lawful execution of a legal duty; and, (2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.” O.B. v. State, 36 So.3d 784, 786 (Fla. 3d DCA 2010) (quoting V.L. v. State, 790 So.2d 1140, 1142 (Fla. 5th DCA 2001)).

Though the encounter between appellant and the officers began as consensual, it became an investigatory detention when the second officer grabbed appellant. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (the relevant inquiry, considering the circumstances of the encounter, is whether “the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business') (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)); Caldwell v. State, 985 So.2d 602, 605 (Fla. 2d DCA 2008) (noting that physical touching by officers is a factor indicating that a seizure has occurred), aff'd, 41 So.3d 188 (Fla.2010). However, the officers lacked reasonable suspicion to detain appellant. “In [resisting without violence] cases involving an investigatory detention, it is necessary for the State to prove that the officer had a reasonable suspicion of criminal activity....” Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008). Reasonable suspicion may be based on an anonymous tip, so long as it is corroborated. M.M., 72 So.3d at 330–31. Neither officer testified to observing anything that corroborated the tip from the 911 callers.

Generally, tips provided through face-to-face encounters from anonymous persons, referred to as “citizen informants,” are considered more reliable than anonymous tips offered by telephone. See McKelvin v. State, 53 So.3d 401, 405 (Fla. 4th DCA 2011). Citizen informants are generally more reliable because:

First, a citizen informant may be motivated not by pecuniary gain, but by the desire to further justice. See [ State v. Maynard, 783 So.2d 226, 230 (Fla.2001) ]. Second, unlike an anonymous tipster, a witness who directly approaches a police officer may be held accountable for false statements. See United States v. Christmas, 222 F.3d 141, 144 (4th Cir.2000) (citing [ Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)] ). Third, a face-to-face tip may be viewed as more reliable because the officers who receive the tip have the opportunity to observe the demeanor and evaluate the credibility of the person offering the information. See United States v. Heard, 367 F.3d 1275, 1279 (11th Cir.2004). Fourth, a witness who approaches the police in person may subject himself or herself to potential reprisal from the defendant, thereby rendering the tip more reliable than an anonymous tip. See Christmas, 222 F.3d...

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14 cases
  • Lu Jing v. State
    • United States
    • Florida District Court of Appeals
    • April 28, 2021
    ...execution of a legal duty and (2) that Appellant's actions constituted obstruction or resistance of that duty. See A.W. v. State , 82 So. 3d 1136, 1138 (Fla. 4th DCA 2012) ; Jay v. State , 731 So. 2d 774, 775 (Fla. 4th DCA 1999)."[I]t is important to distinguish between a police officer ‘in......
  • State v. T.S.
    • United States
    • Florida District Court of Appeals
    • May 15, 2013
    ...for further proceedings. 1. In coming to this conclusion, we reject the argument made below that this case is similar to A.W. v. State, 82 So.3d 1136 (Fla. 4th DCA 2012), McKelvin v. State, 53 So.3d 401 (Fla. 4th DCA 2011), and State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998). As the opini......
  • A.R. v. State
    • United States
    • Florida District Court of Appeals
    • November 20, 2013
    ...(2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.” A.W. v. State, 82 So.3d 1136, 1138 (Fla. 4th DCA 2012). Regarding whether the officer was performing a legal duty, there is a valid distinction between a police officer in th......
  • Jackson v. State
    • United States
    • Florida District Court of Appeals
    • May 11, 2016
    ...(2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.” A.W. v. State, 82 So.3d 1136, 1138 (Fla. 4th DCA 2012) (citation omitted). Proof of the first element requires the court to “examin[e] the applicable legal standard” that “go......
  • Request a trial to view additional results
2 books & journal articles
  • Search and seizure
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...insufficient suspicion to stop the defendant. The consensual encounter turned into a seizure when the officer grabbed him. A.W. v. State, 82 So. 3d 1136 (Fla. 4th DCA 2012) LEO got an anonymous tip that suspicious activities were going on at a particular location. The officer went there, sa......
  • Crimes
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...was acting in good faith. A person cannot use force in resisting an arrest when the officer is acting in good faith. A.W. v. State, 82 So. 3d 1136 (Fla. 4th DCA 2012) Defendant was charged with attempted second-degree murder and convicted of aggravated battery. The instruction and informati......

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