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A Resisting an Officer Arrest That Never Should Have Happened

don-julios-e1598486690892-300x124This may come as a shock to some of you, or sound like a bit of shameless self-promotion–but as a criminal defense attorney, I solve problems. Dig deeper into most legal problems, and you’ll find a few addiction issues and mental health issues.

The question that keeps coming up is: do you want to get better, or do you want to feel better?

When it comes to solving addition problems or mental health problems, feeling better is always a good thing.  It doesn’t last. The hard work comes in trying to get better, and this takes time. Unfortunately, I’ve had clients in counseling hoping to fix their underlying issues, only to discover that these counselors are more interested in making my clients feel better than they are in making them get better.

Anyway, most of our resisting an officer charges, and most of our domestic violence cases begin with a somewhat vague call to 911.  The 911 caller has no idea what’s going on, except that they can see and hear a “disturbance.”  And, that’s what happened in our real-life case for today.   In Brown v. Statethe police were called to a motel due to a disturbance.  2020 Fla.App. LEXIS 9420 (Fla. 2d DCA 2020).

A description of the man causing a disturbance was given to the police, and as they arrived at the motel they noticed the disturbance “suspect” walking away from the motel.  Yes, suspect needs to be in air quotes here.

The police follow the ‘suspect’, Brown, and eventually, he is arrested for resisting an officer without violence and battery on a law enforcement officer.  The battery consisted of an elbow that landed on an officer after a struggle to put handcuffs on the ‘suspect.’

He was sentenced to five (5) years in prison, followed by five (5) years of probation for this incident.

By now, maybe you can see what went wrong here, and why the appeals court overturned some convictions and reduced others.

To understand why these convictions didn’t hold up, let us review some basic legal principles.  By law, I may walk up to you on the street and ask you a question.  Law enforcement can do the same.  We call this a consensual encounter.  The problem is when a cop has a shiny uniform and guns, it is hard to believe that we are free to ignore an officer’s questioning.

But this is America.  The land of the free.  You are free to walk away.  You are free to ignore a cop’s questions.

And, that’s exactly what Brown did.  Multiple times, Brown walked away from the cops.  As usual, the cops didn’t like this, they ordered him to stop, eventually, Brown was tased, eventually, they put him in cuffs, and eventually Brown got five (5) years prison.

The problem is that the officers here were not investigating a crime.  They were investigating a disturbance.  That’s not a crime.  Obviously, the job of the police far exceeds just racking up more arrests.  Cops are community caretakers of sorts, and part of the job requires investigating disturbances.  That being said, disturbances are not criminal investigations — so the police have no power to stop and detain folks on such things.

Technically speaking, the court held that to convict Brown of resisting an officer without violence, the State “had to show that the deputies had a reasonable suspicion of criminal activity–‘a reasonable suspicion that Brown had committed, was committing or was about to commit a crime.” id. at 6.

In throwing out Brown’s resisting an officer conviction, the court held that “the evidence did not establish any basis for the deputies to reasonably suspect Brown of any criminal activity.  Initially, the dispatch call that sent the deputies to the motel was based on information that a ‘disturbance’ had occurred at the motel and that a man matching Brown’s description had been involved.  Standing alone, the information the deputies learned from the call did not provide them with reasonable suspicion to detain Brown because the call did not indicate that the ‘disturbance’ had involved any criminal activity.” id. at 7.

After defending criminal cases for over 27 years, it isn’t difficult to see patterns emerge on resisting an officer without violence cases.  This case fits the pattern in that when the police demanded that Brown stop, “Brown became increasingly irate, yelled profanities, and refused to cooperate.  He clenched his fists, swayed back and forth, and, ultimately, attempted to walk away.  But although he was clearly upset, nothing about Brown’s behavior during that encounter suggested that he had just committed, was committing, or was about to commit a crime.”  id. at 11.  

In the end, the resisting an officer conviction was completely thrown out.  The two felony battery on a law enforcement charges were reduced to misdemeanor battery charges.  And the appellate court was right on this one, getting a little irate isn’t cause for criminal suspicion–but time after time after time–getting irate with the cops will get you arrested.  Just saying.