Lead Opinion
C.E.L. seeks review of the decision of the Second District Court of Appeal in C.E.L. v. State,
FACTS AND PROCEDURAL BACKGROUND
C.E.L., a fifteen-year-old African-American male, was convicted of resisting a law enforcement officer without violence under section 843.02 aftеr he ran from two ap
On appeal to the Second District, C.E.L. argued that the circuit court’s denial of his motion for judgment of dismissal was erroneous because he did not commit the crime of resisting without violence. Specifically, C.E.L. alleged that because the two officers lacked reasonable suspicion to detain him before he took flight, any action he took after flight could not constitute the offense of resisting without violence. The Second District agreed that the officers did not initially possess reasonable suspicion to detain C.E.L. before his initial flight from them. C.E.L.,
The Third District in D.T.B. reached the opposite conclusion under similar facts.
ANALYSIS
In resolving the conflict issue presented, we emphasize that C.E.L. does not contest the fact that his actions constituted “unprovoked flight” under Wardlow or the State’s position that the apartment complex was known for drug activity in a “high-crime area.” Further, there has been no suggestion that the officers’ order to stop was unlawful or that C.E.L. did not act in knowing defiance of that order. In fact, he has conceded before this Court that “flight provided the deputies with reasonable suspicion to conduct an investigatory stop.” Essentially, C.E.L. argues that the sole act of flight cannot be used as the basis for reasonable suspicion necessary to support a conviction for resisting arrest and that whether C.E.L. unlawfully resisted the police officers’ order must be evaluated from the point at which he commenced running, before any lawful command to stop occurred. Thus, the issue in this case is whether there should be a specific rule of law interpreting section 843.02 to require that reasonable suspicion of criminal activity exist before an individual flees.
Applying the United States Supreme Court precedent in Wardlow and adhering to the plain language of section 843.02, we conclude that the plain language of section 843.02 does not support the distinction set forth by the Third District in D.T.B. that would require reasonable suspicion to arise before the flight begins. In reaching this conclusion, we first explain the reasоning of Wardlow and the elements of section 843.02. Next, we explore the divergent conclusions reached by the Second District in the instant case and the Third District in D.T.B. Finally, we explain why we are compelled to approve the reasoning of the Second District.
A. Wardlow
Because Wardlow changed the legal landscape for establishing reasonable suspicion, we begin with an analysis of the United States Supreme Court’s decision. In Wardlow, the Supreme Court held that an individual’s unprovoked, “headlong” flight from the police in a high-crime area can create sufficient reasonable suspicion to warrant an investigative Terry
The defendant then challenged his conviction on the ground that the police lacked reasonable suspicion sufficient to justify an investigative stop pursuant to Terry. Wardlow,
In elaborating on the defendant’s actions, the Court emphasized that its decision was consistent with its prior decision in Florida v. Royer,
In reaching the conclusion that flight from a police officer was more than a refusal to cooperate, the Court analogized to cases where it had recognized “nervous, evasive behavior” as a “pertinent factor in determining reasonable suspicion.” Id. at 124,
Whether or not the Supreme Court, in deciding Wardlow, considered that one possible effect would be to further criminalize otherwise innocent behavior is not for us to decide. Rather, we must decide whether the inevitable result of Wardlow leads to a conclusion in this case that unprovoked, continued flight, in a high-crime area, and in defiance of a police officer’s verbal command to stop, gives rise to a criminal charge of resisting an officer, even if no other independent ground for detention or arrest exists.
B. The Elements of Section 834.02
Our analysis of whether C.E.L. committed a criminal offense of resisting without violence focuses on the plain language of section 843.02. See Koile v. State,
To determine whether the State established the first element, whether the officer was engaged in a lawfully executed legal duty, the court must first look to the legal standard that governs his or her actions. See Tillman v. State,
Turning to the legal standards implicated here, we note that as a general rule, flight, standing alone, is insufficient to form the basis of a resisting without violence charge. See Mosley v. State,
C. The Reasoning of the Second District in C.E.L.
Framing the issue as whether an exception should be made from the general rule that knowing defiance of a lawful order to stop constitutes a violation of section 843.02, the Second District concluded that no exception existed and affirmed C.E.L.’s adjudication. C.E.L.,
In finding the officers’ order to stop lawful, the Second District relied on the holding in Wardlow that a defendant’s unprovoked flight upon noticing the police in a high-crime area is suggestive of wrongdoing and provides reasonable suspicion to justify an investigatory detention under Terry. C.E.L.,
Receding from its prior precedent in J.D.H. v. State,
D. The Reasoning of the Third District in D.T.B.
When faced with a factually similar situation, the Third District reached the opposite conclusion. See D.T.B.,
In reversing the trial court’s holding, the Third District found that “it was improper for flight to be used as the vehicle for charging D.T.B. with ... obstruction.” Id. at 524. The court explained that when an individual flees from police in a high-crime area, Wardlow’s holding only provides a justification for the police to conduct nothing more than a Terry stop, or a “minimal intrusion, simply allowing the officer to briefly investigate further.” Id. (quoting Wardlow,
E. Our Conclusion Approving the Second District’s Opinion in C.E.L.
C.E.L. concedes that Wardlow provided the officers with reasonable suspicion to conduct an investigatory stop, but argues that reasonable suspicion must have existed before he took flight. With this concession, C.E.L. asks us to adopt a general rule that section 843.02 requires reasonable suspicion of criminal activity to exist before an individual flees, when officers first approach a suspect. In this case, the Second District declined to adopt such an interpretation of the statute. See C.E.L.,
The plain language of section 843.02 makes it a punishable offense for an individual to resist without violence an officer engaged in the lawful execution of a legal duty. We acknowledge that when flight is the act of resistance, an individual who flees must know of the officer’s intent to detain him, and the officer must be justified in making the stop at the point when the act of resistance occurs. See Tillman,
An obstruction without violence charge is supported if an individual obstructs an officer in the lawful performance of his or her legal duty. § 843.02, Fla. Stat. (2007). Under the statute’s plain
CONCLUSION
The plain language of section 843.02 makes it an offense fоr any person to resist, without violence, a law enforcement officer when the officer is engaged in a lawfully executed legal duty. Under Wardlow, the moment C.E.L. took flight in a high-crime area, the officers were provided with reasonable suspicion to warrant an investigatory stop. Therefore, the officers were engaged in the lawful execution of a legal duty. Thus, C.E.L.’s continued flight in defiance of the officers’ lawful command constituted the offense of resisting an officer without violence under section 843.02.
Based on the foregoing reasoning, we approve the Second District’s holding in C.E.L. and disapprove of the Third District’s opinion in D.T.B.
It is so ordered.
PARIENTE, J., specially concurs with an opinion, in which LABARGA and PERRY, JJ., concur.
Notes
. See art. V, § 12, Fla. Const.
. The apartment complex is located in a neighborhood that “is sometimes referred to as a ‘suitcase city' and is locally regarded by law enforcement as a ‘high-crime neighborhood.’ " C.E.L.,
. After C.E.L. was apprehended and arrested on the obstruction charge, the officers also determined that he had an outstanding arrest warrant. However, the officers’ discovery of the existence of the outstanding arrest warrant after he was stopped has no effect on our analysis of the section 843.02 violation.
.In 'Wardlow, the United States Supreme Court held that a defendant's “unprovoked flight upon noticing the police” in a high-crime area was suggestive of wrongdoing and therefore provided reasonable suspicion justifying an investigatory detention. See Wardlow,
. Terry v. Ohio,
. This is entirely consistent with Florida v. Royer,
. In J.D.H., the Second District recognized that "an individual is guilty of resisting or obstructing an officer by flight only if he flees while knowing of the officer's intent to detain him and if the officer is justified in detaining the individual before he flees." Id. at 1130 (second emphasis added). In J.D.H., the juvenile defendant fled from the pоlice, who were conducting a trespass investigation at a basketball court in a public housing project late in the evening. Id. at 1129-30. The defendant initially ignored the officers’ verbal commands to stop; when the defendant finally stopped, the officers arrested him and found cocaine on his person. Id. at 1130.
At issue in J.D.H. was whether contraband found in the search should have been suppressed because the arrest was unlawful. Id. at 1129. The arresting officer testified that the defendant was arrested for not obeying the police order to stop, which was issued after he initially fled from the police. Id. at 1130. To resolve the issue, the Second District concluded that "because [the defendant] fled from officers who had no legal right to detain him, he could not have been lawfully arrested for resisting an officer without violence." Id. Notably, the Second District rejected the State's argument that the defendant’s flight created both the reasonable suspicion to stop him under Ward-low and the probable cause to arrest him for resisting an officer without violence because it "would imрroperly criminalize the simple act of fleeing from an officer and expand the holding of Wardlow beyond its plain language." Id. at 1132.
. Although D.T.B. was charged with resisting arrest without violence, a violation of section 843.02 is not limited to resisting arrest, but rather expansively criminalizes resistance of an officer who is in the performance of a lawful duty without violence. See, e.g., Tillman,
Concurrence Opinion
specially concurring.
I concur in the majority’s approval of the Second District’s opinion in C.E.L. I write separately to address both the public policy concerns raised by this case and to point out additional legal and factual arguments for future cases that are not foreclosed by the majority opinion. While I recognize that this Court is required to follow the plain meaning of the statute, and generally cannot substitute its view of the better public policy choice,
A. Concerns for Future Cases
Succinctly stated, the impact of Ward-low and its application to section 843.02 is
These concerns are compellingly laid out by the Second District in Judge Alten-bernd’s concurring opinion in C.E.L. and Justice Stevens’ concurring-in-part and dissenting-in-part opinion in Wardlow. I share these concerns. In C.E.L., Judge Altenbernd argued that the combination of the Wardlow decision, section 843.02, and the inclinations of the typical teenage mind, “creates a recipе for police tactics that can only exacerbate racial and socioeconomic tensions in the communities of this state.” C.E.L.,
The fact that this case involves juveniles is significant to me. It is arguably suspicious if a thirty-five-year-old woman decides to run when she sees a police officer at 8:50 p.m. in her neighborhood. It is another matter when the runner is a juvenile, especially a juvenile from an ethnic minority in a neighborhood that is poor. The simple truth is that any good police officer with a year’s experience can conduct herself in a manner that causes many typical teenagers to run under these circumstances. The experienced officer can order a teenager to stop in a manner that will not convince many teenagers to stop. In other words, a well-trained law enforcement officer has the ability to arrest many teenagers almost at will during the evening hours in a bad neighborhood.
Id. (emphasis added). Finally, Judge Al-tenbernd conveyed his apprehension regarding the future impact of C.E.L.) specifically, he “fear[ed] there [would be] consequences for our communities if we allow the sale of drugs in poor and ethnic minority neighborhoods to transform those neighborhoods into ‘high-crime neighborhoods’ where the Bill of Rights means something less than what the original framers intended it to mean for all free people.” Id.
In Wardlow, Justice Stevens conveyed similar concerns. He proposed that “[t]he question ... concerns the ‘degree of suspicion that attaches to’ a person’s flight-or, more precisely, what ‘commonsense conclusions’ can be drawn respecting the motives behind that flight.” Wardlow,
Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence. For such a person, unprovoked flight is neither “aberrant” nor “abnormal.” ... [Furthermore,] the evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient.
Id. at 132-34,
The concerns expressed by Judge Alten-bernd and Justice Stevens are founded on two premises. First, an individual’s location within a high-crime area may be outside that individual’s control, i.e., it could be the only place a person can afford to live. And second, an individual’s motivation for flight may be entirely innocent.
As to the first consideration, Judge Al-tenbernd highlighted that in C.E.L.’s case, he was not in the high-crime area by choice, rather, “it was his home.” See C.E.L.,
The second consideration is the disturbing conclusion reached in Wardlow that “headlong flight” in a “high-crime neighborhood” is an act of evasion giving rise to reasonable suspicion. See Wardlow,
As an article cited by Justice Stevens concludes, “Black leaders [have] complained that innocent people [are] picked up in the drug sweeps.... [And] [s]ome teenagers [are] so scared of the [police drug] task force that they run even if they
The bottom line is that I would urge the Legislature to consider whether statutory revisions to section 843.02 are necessary in order to address what is clearly an unintended consequence of the statutory scheme.
B. Arguments That Are Not Foreclosed by This Opinion
Although the majority’s conclusion is limited to the circumstances of this cаse, it is important to discuss several alternative arguments that are not foreclosed by the majority opinion. First, Wardlow does not establish a per se rule regarding the existence of reasonable suspicion; the existence of reasonable suspicion is judged by a totality of circumstances. Second, an individual prosecuted under section 843.02 can challenge whether his or her flight from police was “unprovoked” and “headlong.” Lastly, that individual can challenge whether the area of his or her alleged violation was actually within a “high-crime area.”
1. Wardlow Does Not Establish a Per Se Rule That Reasonable Suspicion Exists
The hallmarks of Wardlow’s holding are twofold. First, a suspect must be present in a high-crime location. Wardlow,
In deciding Wardlow, the United States Supreme Court continued to adhere to the totality of circumstances standard to hold that those two factors, if present, add to the total circumstances that might arouse an officer’s suspicion enough to justify a lawful investigatory stop. See Wardlow,
In this case, the majority position does not foreclose future challenges to whether reasonable suspicion of criminal activity exists the moment an order to stop has been given — i.e., whether an officer’s order to stop was even lawful.
2. Defendant Can Challenge Whether There Was Unprovoked Headlong Flight
An individual prosecuted under section 843.02 can also challenge whether his actions constituted the type of “unprovoked” and “headlong” flight from police that Wardlow described. As the majority in the instant case noted, the Wardlow Court found that a defendant’s sudden exodus upon noticing police in the area was unprovoked, headlong flight. See
However, whether an individual’s flight from police fits within the Wardlow framework is an issue that may still be examined. In fact, several of Florida’s district courts have considered such challenges. For example, in Lee v. State,
When faced with a similar question, the Second District, in Cunningham v. State,
As Lee and Cunningham indicate, future challenges may raise the point that a defendant failed to see the officer approach or that his actions in moving away from the officer did not constitute headlong and unprovoked flight.
3. Defendant Can Challenge Whether the Incident Occurred Within a “High Crime Area”
Finally, an individual can challenge whether the area where his or her alleged violation occurred was actually within a “high-crime area.” In Wardlow, the United States Supreme Court held that “officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation ... [under] a Terry analysis.” Wardlow,
Other district courts have also discussed the type of evidence the State must present to prove that flight did, in fact, occur in a high-crime area. For example, in Cunningham, the facts of which are set forth above, the Second District defined a “high-crime area” as one “being riddled with narcotics dealings and drug-related shootings.”
The Second District addressed this issue again in D.R. v. State,
Before reaching a conclusion, the Second District explained that “[o]n cross-examination, the officer provided no details regarding the number of arrests in the neighborhood ... [and] his knowledge of the area was unsupported by any facts shared with the court that would suggest that the suspect’s unprovoked flight occurred in a high crime area.” Id. at 538. Moreover, “there was no testimony about the ‘relevant characteristics’ of the location that would determine ‘whether the circumstances [were] sufficiently suspicious to warrant further investigation.’ ” Id. (quoting Wardlow,
In this case, I agree with the majority that based on Wardlow and C.E.L.’s concession that reasonable suspicion existed at the time the officers ordered him to stop, the Second District properly affirmed C.E.L.’s adjudication under section 848.02. However, I remain troubled by the ultimate impact of this decision and stress that under a different factual scenario Wardlow may not apply and may not support a basis for a conviction for resisting without violence.
. See, e.g., Tillman v. State,
. For example, in D.T.B., it appears the juvenile's motivation for flight was entirely innocent. In that case, the juvenile's sole offense was the obstruction charge. Conversely, in C.E.L., in addition to the obstruction charge, the juvenile also had an outstanding warrant.
. A challenge such as this was raised in C.H.C. v. State,
. In fact, "the Supreme Court left the question open in Wardlow, basing its holding on an assumed but undefined factual issue." Andrew Guthrie Ferguson & Damien Bernache,
Dissenting Opinion
dissenting.
While the result reached by the majority seems to be in keeping with a literal reading of the statute, I cannot agree because of the societal implications of such a literal reading. I acknowledge that the United States Supreme Court in Illinois v. Wardlow,
In the Wardlow opinion the Supreme Court gave the police the authority to stop a fleeing citizen, not necessarily a fleeing suspect, if that flight from the poliee takes place in а “high crime area.” If an individual such as C.E.L. or you or I lives in an area that has not been designated by the police as a “high crime area,” that person could run with impunity at the sight of the police, even if he was in fact in the process of committing a crime as long as the police have no reason to believe he was about to commit a crime. Yet given the same set of facts, persons living in a high crime area, including juveniles who have no choice but to live where their parents have a home, become criminals if they run upon the sight of a police officer. "What has become of such concepts as equal protection, innocent until proven guilty, and due process? Like the Third District Court of Appeal in D.T.B. v. State,
The unintended consequences of criminalizing otherwise innocent conduct and people are clearly illustrated in the D.T.B. case. In that case the police wanted to conduct what is termed a “voluntary field interview” with D.T.B. The police acknowledged that these types of interviews are consensual encounters between the police and a citizen, i.e., an encounter where the citizen is free to refuse to speak to the police and can leave at any time. They also acknowledged that D.T.B. was merely standing by a tree, albeit the police had observed drug transactions by that tree in the past. However, on this occasion the police did not observe any drug transactions, and they did not suspect D.T.B. of being involved in any criminal activity. When the officers pulled up to the area, D.T.B. ran away. The police ordered D.T.B. to stop, he continued to run, and the police caught and arrested him. What happened to the consent portion of the consensual encounter that the police acknowledged was their reason for approaching D.T.B.?
From the facts of the case, it appears that nothing was found on D.T.B. and
The Third District made its determination that D.T.B. should not have been adjudicated for resisting or obstructing an officer on two factors. First, the court said that Wardlow did not criminalize running from the police. Instead, the Third District reasoned, the Wardlow court simply gave the police another investigative tool and the ability to detain a person for a brief Terry-type investigation when that person runs at the sight of the police. If the police gain no additional information which would lead to probable cause, then the person should be free to go. Second, the Third District opined that the police had no reasonable suspicion that D.T.B. was engagеd in any criminal activity. In fact, the police said just the opposite. Thus, the district court found that the officers were not executing any legal duty at the time the juvenile D.T.B. fled. Additionally, the Third District cited a number of other district court cases, decided prior to Wardlow, which held that flight alone was insufficient to demonstrate resisting/obstruction. See, e.g., DM. v. State,
Under the majority’s reasoning in this case, the fact that the police said “Stop” turns what was otherwise the free exercise of a citizen’s right to not have an encounter with the police into a misdemeanоr of the first degree, which carries with it a punishment of up to one year in prison. I do not believe that the Wardlow court contemplated such a draconian result.
I am especially concerned because many of the cases we see, like the case before us, involve juveniles, our young people who are our future leaders and voters and workers. I simply cannot condone actions that could result in a large number of young people having criminal records, records that will follow them into the future, because they were uncomfortable with the possibility of having an encounter with the police. I can understand to some extent the police charging a person with obstruction/resisting if in fact the detention that is authorized under Wardlow ripens into something beyond the reasonable suspicion caused by the flight. However, I cannot understand making criminal that which any other citizen would be allowed to do but for the fact that this person lives in a particular neighborhood. I agree with the following statements from Judge Alten-
The fact that this case involves juveniles is significаnt to me. It is arguably suspicious if a thirty-five-year-old woman decides to run when she sees a police officer at 8:50 p.m. in her neighborhood. It is another matter when the runner is a juvenile, especially a juvenile from an ethnic minority in a neighborhood that is poor. The simple truth is that any good police officer with a year’s experience can conduct herself in a manner that causes many typical teenagers to run under these circumstances. The experienced officer can order a teenager to stop in a manner that will not convince many teenagers to stop. In other words, a well-trained law enforcement officer has the ability to arrest many teenagers almost at will during the evening hours in a bad neighborhood.
... I fear there are consequences for our communities if we allow the sale of drugs in poor and ethnic neighborhoods to transform those neighborhoods into “high-crime neighborhoods” where the Bill of Rights means something less than what the original framers intended it to mean for all free people.
Id. at 564 (Altenbernd, J., concurring). And even in situations that involve adults, I have some cause for concern because many adults in these neighborhoods have had less than pleasant encounters with the police.
I urge the Legislature to address this very troubling and dangerous matter. This can be done by making clear that resisting or obstructing an officer must be based on factors other than mere flight from police. We simply cannot allow a generation of young people to be further victimized because of their often justifiable distrust of law enforcement and because they are unfortunate enough to live in a so-called “high-crime neighborhood.”
. We have only to look at any information concerning the relationship of the police with citizens who live in these so-called “high crime areas” to know that the residents of many of these areas are poor or minority or both and that they have a distrust of the police. Often this distrust is based on their personal encounters with the police or their observations of police actions and conduct that may not have even involved them.
