County Criminal 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 (Fla. 6th Cir. App. Ct. April 21, 2008).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

DEREK DANIEL LOPEZ

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 06-72 APANO

                                                                       UCN522006AP000072XXXXCR

 

STATE OF FLORIDA

 

            Appellee.

_____________________________/

 

 

Opinion filed __________________.

 

 

Appeal from a decision of the

Pinellas County Court

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 the Pinellas County Court following his conviction by a jury of resisting an officer without violence. The defendant claims his motion for judgment of acquittal should have been granted. After reviewing the briefs and record, this Court affirms the judgment and sentence.       

Facts

            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. [1] 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, Fla. Stat. (2006). In determining if an officer was engaged in the lawful execution of a legal duty, this Court must apply the legal standards governing the officer’s duty at the time the resistance occurred. See Tillman v. State, 934 So.2d 1263, 1271 (Fla. 2006). At the time the resistance occurred, the contact between officer and the defendant was an "investigatory stop" because the defendant was not free to leave.  U.S. v. Mendenhall, 446 U.S. 544 (1980); Popple v. State, 626 So2d 185 (Fla. 1993).  In cases such as the one at bar, where there is an investigatory stop, it is necessary for the State to prove that the officer had a reasonable suspicion of criminal activity that would support the detention. Davis v. State, 973 So.2d 1277 (Fla. 2d DCA 2008).

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 (Fla. 5th DCA 2001). While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. The officer must be able to articulate more than an "inchoate and unparticularized suspicion or 'hunch' " of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). 

              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. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).  If the tip is corroborated by independent police observation of otherwise seemingly innocent acts, then it may exhibit sufficient indicia of reliability depending upon the totality of the circumstances. Id. at 330, 110 S.Ct. 2412; see also Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

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 (Fla. 2004).  In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the State that the fact finder might fairly infer from the evidence. State v. Odom, 862 So.2d 56 (Fla. 2d DCA 2003). Where there is room for a difference of opinion between reasonable people as to the proof or facts from which an ultimate fact is to be established, or where there is room for such differences on the inferences to be drawn from conceded facts, the trial court should submit the case to the jury. Taylor v. State, 583 So.2d 323 (Fla. 1991). 

 

 

Conclusion

 

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.[2] 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 Clearwater, Pinellas County, Florida this _____ day of April, 2008.         

                                                                                    ________________________

                                                                                    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

 


[1] 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.

[2] We 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. See State v. Wise, 603 So.2d 61 (Fla. 2d DCA 1992).