PAUL RODNEY REED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Reed was stopped without a traffic violation and ordered to submit to a frisk based on a BOLO for a suspect with significantly different physical characteristics. During the frisk, Reed pushed the officer, crack cocaine fell from his pocket, and he was arrested. The court affirmed the denial of his motion to suppress, holding that evidence seized following a lawful arrest for resisting arrest with violence need not be suppressed even if the initial stop was questionable.
The trial court properly denied the motion to suppress because evidence seized as incident to a lawful arrest for resisting arrest with violence is not subject to suppression, even if the initial stop was invalid, since battery upon a law enforcement officer is illegal regardless of whether the arrest being resisted was valid.
[1] Evidence seized incident to a lawful arrest for resisting arrest with violence is not subject to suppression, even if the initial arrest attempt was invalid.
[2] A battery upon a law enforcement officer is illegal, regardless of whether the officer is attempting an invalid arrest.
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Join FLexlaw to unlock all legal intelligence“a battery upon a law enforcement officer, even one attempting an invalid arrest, is illegal”
Establishes that resisting arrest is a separate crime regardless of the validity of the initial stop
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Join FLexlaw to unlock all legal intelligenceA BOLO was issued for a shooting suspect last seen in a green vehicle. Officer Oyster observed a brown van at a residence under surveillance and follo…
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COBB, Judge.
The issue on this appeal deals with the trial court’s denial of the defendant’s mo tion to suppress evidence. The facts indicate that a BOLO had been issued for a shooting suspect who had last been seen in a green colored vehicle. On the afternoon of February 26, 1991, an officer sighted this vehicle parked at a private residence and was ordered to keep the residence under surveillance. While watching, a brown van drove up and two males exited the van and entered the residence. Later, two males came out of the residence and entered the brown van and left. Subsequent to this, two additional males left the residence and departed in the green vehicle. It was determined that the suspect was not in the green vehicle.
Officer Oyster, who had prior knowledge of the BOLO, followed the brown van until it stopped. The officer did not see which male exited the driver’s side of the van, but assumed that the defendant was the driver. Oyster approached both males and asked for identification and driver’s licenses, even though no traffic violation had occurred. The defendant responded that he did not have a driver’s license with him and that he was not the driver of the van.
At trial, the officer testified that he believed the defendant was the subject of the BOLO even though it portrayed the suspect as being 6' tall and weighing 180 pounds. By comparison, the defendant was 5'7" tall and weighed 150 pounds. Oyster related that he had noticed a bulge in the defendant’s pants pocket and had asked him what was there. The defendant apparently turned his body around sideways and pulled out a rag, reporting that nothing else was in his pocket. The defendant was then ordered over to the van so he could be frisked and at that point, he looked to the left and right, which the officer believed was an indication that the defendant was about to flee. Oyster attempted to grab the defendant’s jacket and the defendant subsequently pushed and shoved the officer in an attempt to get away. In the scuffle, a plastic bag containing crack cocaine fell from the defendant’s pocket.
The defendant was charged with unlawful possession of a controlled substance with intent to sell and resisting arrest with violence. A plea of no contest was entered as to both counts, reserving the right to appeal the denial of the defendant’s motion to suppress.
We find that the motion was properly denied by the trial court on the authority of our opinion in Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990). As we pointed out in that case, a battery upon a law enforcement officer, even one attempting an invalid arrest, is illegal. Hence, in this case, evidence seized as incident to the lawful arrest for resisting arrest with violence is not subject to suppression.
AFFIRMED.
COWART and PETERSON, JJ., concur.
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Sherwin James Miller v. State, 636 So. 2d 144 (Fla. 1st DCA 1994)…xample, engaging in a scuffle with an officer during an improper detention constitutes battery upon a law enforcement officer and can itself give rise to a valid arrest and conviction for the offense of resisting arrest with violence. Read v. State, 606 So. 2d 1246 (Fla. 5th DCA 1992); Savage v. State, 494 So. 2d 274 (Fla. 2d DCA 1986), review denied, 506 So. 2d 1043 (Fla.1987). The record in this case established that appellant scuffled with the officers, and indeed appellant has not asserted otherwise. Rath…
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Clauson Conway Taylor v. State, 740 So. 2d 89 (Fla. 1st DCA 1999)…. State, 616 So. 2d 170, 171-172 (Fla. 2d DCA 1993) (holding that the “use of force in resisting arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest”); Reed v. State, 606 So. 2d 1246, 1247 (Fla. 5th DCA 1992) (stating that “a battery upon a law enforcement officer, even one attempting an invalid arrest, is illegal”). Section 776.051(1) does not apply in this case, however, because the statute is limited by its terms to a situat…
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State v. Roux, 702 So. 2d 240 (Fla. 5th DCA 1997)…mmit a battery upon a law enforcement officer. Even if the agent had illegally detained Roux, a battery committed on the agent does not vitiate the illegality of Roux’s behavior. See Lints v. State, 643 So. 2d 689 (Fla. 5th DCA 1994); Reed v. State, 606 So. 2d 1246 (Fla. 5th DCA 1992). Roux could not commit a battery with impunity. Thus, there was probable cause for arrest, not for drug dealing, but for the illegal acts of battery and battery on a law enforcement officer. Since there was probable cause for his…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990)