The police have a job to do. Part of their job is to ask questions, to talk with people. That being said, part of our Constitutional rights as Americans is to politely refuse to answer said questions. As a matter of fact, we may simply continue going about our busy lives, even in the face of police questioning.
So, that’s the law. But in reality, the police don’t like it when you refuse to talk with them. Sure, you’ve got a busy life, things to do, places to be. Deciding to continue about your day, rather than answering police questions, can transform an innocent situation into an arrest for Resisting an Officer Without Violence. Let’s take a look at just such a case, and how it turned out on appeal.
Javarous Peterson was convicted of possession of a firearm and resisting an officer without violence. Peterson v. State, 101 So.3d 860 (Fla.App. 2nd DCA 2012). Here’s the facts: police received an urgent anonymous tip in a high-crime area that a person wearing a white shirt and green pants had a gun. An officer was in the area, and Javarous matched the description, so the officer moved towards the young man and asked to speak with him. Mr. Peterson refused, telling the cop “no, I have to go home.” Id. Mr. Peterson was on his bike, so he slowly peddled away from the officer, at which time the officer then ordered him to stop. He did not stop, but he was eventually stopped by another officer. As the old saying goes, you can’t outrun the police radio. Radio waves simply travel too fast. A physics lesson learned many times by those charged with resisting, and fleeing or attempting to elude.
So, Peterson’s attorney filed a Motion to Dismiss the resisting an officer without violence charge. That motion was denied. The defense attorney also filed a Motion to Suppress the stop of Peterson (thus, suppressing the firearm charge), but that motion was denied as well. All of this happen at the trial court level, before the appeal.
Mr. Peterson’s appeal was denied. Both of his convictions were upheld.
Now for the crazy part. The appeals court writes an opinion saying that, basically, had the appellate attorney argued the correct issue, they are “inclined to believe that the charge of resisting should have been dismissed on this basis and the firearm should have been suppressed; but this was not argued by his trial counsel and it has not been raised on appeal by his appellate counsel.” Id. Ouch! Can you imagine being Mr. Peterson, reading this court’s opinion that his charges “should have been” dismissed and suppressed, but the correct issues were “not argued by his trial counsel”? Painful, for sure. You may be asking yourself, what is this “issue” that everybody missed?
Well, let’s review a sort of unfair legal concept to those of you living in “high-crime” areas. If you live in a high-crime area, running from the police constitutes probable cause for them to pick you up. If you’re in a nice neighborhood (not known to be high-crime), you may flee from the police and they have no right to stop you. For more information on this topic, check out my article “Avoiding Police OK, If You Live in a Nice Neighborhood.”
The main issue that everybody missed goes something like this: the anonymous tip did not give the police a basis to stop Mr. Peterson, but everyone in this case agreed that “Mr. Peterson could be stopped only if he was engaging in ‘headlong flight’ in a high-crime area.” Id. What the appeals court pointed out is that Mr. Peterson’s “slowly” pedaling away on his bike is not “headlong flight”. Without “headlong flight” in a high-crime area, the police have no reason to stop Peterson. As such, the court reasoned that “Mr. Peterson was free to disregard the order to stop because he was not resisting a lawful order. The fact that Mr. Peterson eventually pedaled his bicycle at a faster pace after he was improperly ordered to stop should not transform these events into a valid Terry stop.” Id.
Odd outcome, right? The court denies Peterson’s appeal. Let’s the convictions and sentences stand. And then, goes on to explain that–had the defense attorney argued something different–everything would have been thrown out. I suppose Peterson should thank the appeals court for their subtle hint that, maybe, it’s time to get another attorney.