Court: CRIMINAL LAW --- Search and Seizure --- Stop --- Where there was evidence that the officer was
investigating a report of a battery with two specifically identified people at
a specific location, and the officer approached two people who matched the
description near the location and saw evidence that corroborated the tip, one
of the people’s motion for JOA on a resisting arrest charge was properly denied
when he refused to obey the officer’s commands to stay so an investigation
could be completed. Judgment and sentence affirmed. Lopez v. State, No.
CRC 06-72 APANO (
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
DEREK DANIEL LOPEZ
v. Appeal No. CRC 06-72 APANO
Opinion filed __________________.
Appeal from a decision of the
County Judge John Carassas
Frank D.L. Winstead, Esquire
Attorney for appellant
C. Marie King, Esquire
Assistant State Attorney
ORDER AND OPINION
THIS MATTER is before the Court on
the defendant, Derek Lopez’s, appeal from a judgment and sentence entered by
A police officer received a dispatch that a battery had taken place at a particular Kentucky Fried Chicken restaurant. The dispatch was based upon an anonymous tip, apparently given by a passing citizen who had seen the alleged battery.  The description of the perpetrator and the victim was two black people, one male and one female, in their 20’s. The male was wearing a white t-shirt and blue jeans, and the female was wearing a Winn Dixie uniform. When the officer arrived at the Kentucky Fried Chicken restaurant, he did not see anyone matching that description, but soon located two individuals matching the description outside a Bealls Outlet store. This was approximately 200 feet from the Kentucky Fried Chicken restaurant. The female was crying and the two were arguing. The officer testified it appeared that tempers were high. The officer approached the two and explained that he was investigating an alleged battery and needed to speak to them. The male, the defendant, declined to talk to the officer and started to walk away. The officer twice asked him to stay to answer questions about the alleged battery, but the defendant ran from the scene. He was later apprehended and charged with resisting an officer without violence. The defendant claims that his motion for judgment of acquittal should have been granted because there was no justification for the officer to detain him.
Was there sufficient evidence for the court to allow the jury to determine if the officer was performing her legal duty in trying to detain the defendant?
One element of the crime of resisting an officer without
violence is that the officer was engaged in the lawful execution of a legal
duty. See §843.02,
A reasonable suspicion is "a suspicion which has
some factual foundation in the circumstances observed by the officer, when
those circumstances are interpreted in the light of the officer's
knowledge." McMaster v. State,
780 So2d 1026, 1030 (
If, as in the case at bar, the police
officer's information is not personally observed, but received from an
informant, the informant's veracity, reliability, and basis of knowledge are
critical in establishing the reasonable suspicion required for a stop. An anonymous tip
may give rise to reasonable suspicion to stop or probable cause to search,
where the tip is deemed reliable.
The defendant’s contention in this appeal is that the trial
court erred in failing to grant his motion for judgment of acquittal because
the State failed to present sufficient evidence that the police officer was
performing her legal duty in detaining the defendant at the time he resisted. A
motion for judgment of acquittal should not be granted by the trial court
unless there is no view of the evidence which the jury might take favorable to
the opposite party that can be sustained under the law. See Pearce v. State,
880 So.2d 561, 571 (
This Court concludes that the State presented sufficient evidence to survive the motion for judgment of acquittal. The corroboration of the anonymous tip was sufficient to justify an investigative detention in this case. The tip was not of the type that said criminal activity was occurring or was about to occur. So, it was not as though the police could observe continuing criminal activity or wait to see the suspect advance toward committing criminal activity. Instead, the tip said that criminal activity --- a battery --- had taken place. The tip said the crime occurred at a specific location and two people, one wearing a distinctive uniform, were involved. When the police acted promptly on that information and observed two people, who were obviously the two described by the tip, near where the battery was said to have taken place, it was proper that the officer approached the individuals. When the officer further observed that the woman was crying, appeared upset, and the two were arguing, that was sufficient corroboration of the substance of the tip because it was reasonable for the officer to conclude that in the course of this ongoing argument a battery might have taken place as reported by the tipster. Since the police officer had a reasonable suspicion that a battery had taken place, she was justified in trying to detain the defendant to further investigate. At least the evidence was sufficient so that a jury might determine that the police officer was properly performing her legal duty to investigate the report of a battery when the defendant resisted. Accordingly, the trial court was correct to deny the defendant’s motion for judgment of acquittal.
IT IS THEREFORE ORDERED that this Court affirms the judgment and sentence.
DONE AND ORDERED in
Judge Michael A. Andrews
Circuit Court Judge
Judge Raymond O. Gross Circuit Court Judge
Judge R. Timothy Peters
Circuit Court Judge
cc: Office of the State Attorney
Frank D.L. Winstead, Esquire
Honorable John Carassas
 The State claims that the tipster was not anonymous because that person left a phone number. The investigating officer testified, however, that he had called the number but received no return call. Both the investigating officer and the trial court considered the tipster anonymous. This Court agrees.
recognize that the police generally do not have the authority to arrest a
person for a misdemeanor that occurs outside the officer’s presence, but they
do have broader authority to temporarily detain a person to investigate a
reported misdemeanor and to determine if a notice to appear should be issued.