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Wednesday, May 12, 2010

3rd DCA ROUNDUP-ITS ONLY A MISDEMEANOR EDITION

Judge Areces takes the first hit in our 3rd DCA roundup in State v. Brown, in which the good judge granted a motion to suppress finding that the criminal conduct the police officers observed was "only a misdemeanor" which didn't warrant hot pursuit into a home. Au contraire sayeth the 3rd and Judge Schwartz: Hot pursuit of a fleeing misdemeanant is permissible where the misdemeanor is punishable by a jail sentence.
Citing Ulysse v. State, 899 So. 2d 1233, 1234 (Fla. 3d DCA 2005)

Nice try Judge Areces. Warrantless police entry into private homes deserve the highest form of judicial scrutiny. We appreciate the effort.

Not so with Judge Cynamon who rightfully gets reversed (shout out to PD legal interns Jessica del Valle and Aileen PeƱate for a great job) in OB v. State, and in this case "OB" should stand for Judge Cynamon saying "Oh Boy did I screw up."

Basically a couple of kids take shelter under a carport when walking home and it starts to rain. The cops pull up and confront the kids with guns drawn. The kids are scared so they run. The cops chase them. When they catch OB they kick him in the face and throw him over the fence- just who are the good guys here again?
Anyway, OB gets adjudicated for resisting without violence (having already been arrested with extreme violence.) The 3rd Reverses and Remands (total victory for the defense for you robed readers confused by the legalese.)

First some good old fashion American "don't tread on me" case law:

First, “the [S]tate must establish that the officer was engaged in the lawful scope of his or her duties.” M.M.H. v. State, 929 So. 2d 628, 629 (Fla. 3d DCA 2006) (citing B.D.H. v. State, 903 So. 2d 390 (Fla. 3d DCA 2005)). “The element of lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrantless arrest.” E.A.B. v. State, 851 So. 2d 308, 311 (Fla. 2d DCA 2003). Otherwise, “the individual has a right to ignore the police and go about his business.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000).


(Someday we'd love to see some case law that tells us we have to right to ignore a judge and go about our business.)


Now we get to Cynamon's folly: The trial court, on the basis of Billips v. State, 777 So. 2d 1094 (Fla. 3d DCA 2001), and E.A.B., determined that, as a matter of law, simply responding to a BOLO constitutes the lawful execution of a legal duty. However, both of these cases support the opposite determination: that police officers seeking to detain an individual in response to a BOLO are not lawfully executing a legal duty unless they have the requisite reasonable suspicion.


Query: So is it a crime to run from the fuzz? Nope:


“[A]s a general rule, flight, standing alone, is insufficient to form the basis of a resisting without violence charge.” C.E.L., 24 So. 3d at 1186 (citing Mosley v. State, 739 So. 2d 672, 675 (Fla. 4th DCA 1999)); see D.T.B., 892 So. 2d at 525. Even “a suspect’s mere presence at the scene of a crime and flight therefrom is insufficient . . . .” F.B. v. State, 605 So. 2d 578, 578 (Fla. 3d DCA 1992) (citing M.F. v. State, 549 So. 2d 225 (Fla. 3d DCA 1989)).

However, “[f]light can support a resisting charge if the state proves that (1) the officer had an articulable well-founded suspicion of criminal activity that justifies the officer’s detention of the defendant, and (2) the defendant fled with knowledge that the officer intended to detain him or her.” V.L., 790 So. 2d at 1143. As this Court observed, “Wardlow did not criminalize running from the police. Wardlow only held that running from the police in a high crime area gave the police reasonable suspicion to allow ‘officers confronted with such flight to stop the fugitive and investigate further.’” D.T.B., 892 So. 2d at 524


So OB gets the adjudication off of his record. A couple of interns are on their way to a great career in criminal law. And the cop who kicked OB in the face? Nothing happens to him- this is Miami.


See You In Court, trying to ignore Judges. They just get in the way.



19 comments:

Anonymous said...

It's interesting that almost every juvenile arrested in Miami-Dade is beaten and/or tortured by officers. I had a case where the kid told me officers took turns kicking and punching him while they held a bar-b-que at the rear of the station. He described black eyes, a bloody nose, and lacerations to his lips and forehead. Small problem, showed him the JAC booking photo, nothing there. He told me the swelling had gone down by then and that all the blood was on the shirt below chest level and off camera. His parents gave me the same story. Either way, good opinion on the resisting, but not so confident on the kick to the face and throwing over the fence.

Anonymous said...

Wow - Cynamon is given two cases on point and STILL gets it wrong (b/c she interprets them wrong). Sounds like one smart cookie.

Anonymous said...

Judge Abby Cynamon is almost as dumb as her dumb husband, Jeff Cynamon. Talk about a circus with clowns!!!!

Fake Reemberto Diaz said...

I want to express my support for the wise decision of my colleague Judge Areces. Misdemeanors are just that- Misdemeanors. And they belong before County Court Judges where they can click their little computers and threaten ten days jail, and assign community service and nobody really cares what they say.

The 3rd got this one wrong. No one cares about misdemeanors and misdemeanor judges.

Genuine Fake Milt Hirsch said...

Dont you all worry, I'll clean up the Juvenile Court come January. All judges will be up on Wardlow and its progeny.

And any juvenile adjudicated delinquent in my courtroom will be give so many community hours, it will make thier head spin.

Anonymous said...

I agree with the dumb Cynamon comment. The Cynamons should not be allowed to play lawyer or judge in this town. Go to Kansas.

Anonymous said...

Why do we let cops get away with this sort of crap?

Anonymous said...

do i need to go back to crim law 101? I thought all misdemeanors were punishable by a jail sentence.
am i out of it?

Confused but satisified said...

I need some help here- I have the biggest case of my career- 6 figure fee- can't say more about exactly where or the charges. Super and I mean super 10 plus FDLE lead agent. 30 years old. Long blonde hair. Former college athlete. So I bump into her in a bar- I was waiting for some guy friends to grab a steak dinner on a guys night out. Turns out she's alone and just out- and likes to drink. A lot. To make a long story and long night short- she gets trashed- comes home with me- and we have a wild weekend, including consensual taping of various acts in bed. I imagine if this got out it could wreck her career.

Anyway- she calls me to repeat this weekend and mentions that she has some hesitancy on the possible conflict of interest issues, so why doesn't she speak to the prosecutor? Lo and behold the prosecutor calls me and says for one week only a ten year plea offer becomes less than a year, probation and even a very reasonable figure on restitution. No cooperation. Just get it off her plate.
Client is thrilled.
Something is nagging at me, but I can't figure out exactly what is anything I've done wrong. Any ideas?

josh said...

To anon - you can tell by reading the petition if the kid had the shit beaten out of him: a battery on a LEO charge and/or resisting w/ signals a need to justify the bruises, the stitches, the knocked out teeth, the broken thumb/finger/hand/arm, the ECD burns. Some kids lie about it to be certain, but the proof in juvy is right in the back.

Anonymous said...

Looks like the Justice Building Blog is turning into the Penthouse Forum. Boy, do I have some stories to tell.

Anonymous said...

645
u are a total douche bag so the story cant be true. if it is true it is even worse bc u are talking about it.

Anonymous said...

Judge Cynamon is a true fair minded jurist.

She is the product of the Foster Care system of Florida having been raised in the system as a young child.

Lay off!

Anonymous said...

all you ungrateful pinkos, we kick some a--,admisniter curbside justice to some punks, and you all complain. Back in the day, we could beat "hispanics" (spics in the good ole days) and other similair species with impunity, and we all got medals, now with all you mango munchers on the bench, well you know, we be having to be politically correctal. Viva Broward,

Anonymous said...

I love commenters like 8:01 who are too stupid to realize that the FDLE agent story, is a joke.

Also, no need to lay off Judge Cynamon. She may be the product of the foster system and a nice person, but stories are everywhere about her complete lack of knowledge of the law.

Anonymous said...

To 6:45: Wake up! Your dream is over. Its time for breakfast.

Anonymous said...

The 8:01 blogger is Jeff Cynamon, Judge's Cynamon's equally unknowledgeable husband!!!

Anonymous said...

Judge Cynamon is a pleasant person. She is trying her best, but needs more time to adjust. Many of her incorrect decisions were done when she was still in her first year on the bench. She has grown. She really works hard to make the right decision.

Anonymous said...

8:38: her incorrect decisions continue to happen daily. She's been on the bench long enough to have learned a few things - problem is, she hasn't. I will say this: she does try to read the case law you present her and she does (i)try to get it right. Often she'll ask for case law when the statute is dispositive - thereby putting the burden on the movant to support an already crystal clear statute with cases. It's frustrating being in front of her, but unlike the other lady judge in that court house, she does make an effort and I think she'll read your motions. But stupid? Yes.