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:
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.
Wow - Cynamon is given two cases on point and STILL gets it wrong (b/c she interprets them wrong). Sounds like one smart cookie.
Judge Abby Cynamon is almost as dumb as her dumb husband, Jeff Cynamon. Talk about a circus with clowns!!!!
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.
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.
I agree with the dumb Cynamon comment. The Cynamons should not be allowed to play lawyer or judge in this town. Go to Kansas.
Why do we let cops get away with this sort of crap?
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?
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?
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.
Looks like the Justice Building Blog is turning into the Penthouse Forum. Boy, do I have some stories to tell.
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.
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!
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,
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.
To 6:45: Wake up! Your dream is over. Its time for breakfast.
The 8:01 blogger is Jeff Cynamon, Judge's Cynamon's equally unknowledgeable husband!!!
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.
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.
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