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 Peñate 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.