K.H., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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K.H., a fourteen-year-old, was found to have committed battery on a law enforcement officer after pushing a plainclothes officer who stopped him without lawful justification. The appellate court reversed the battery conviction, finding the officer lacked probable cause or reasonable suspicion to stop K.H., but remanded for conviction on the lesser included offense of simple battery.
The evidence was legally insufficient to support battery on a law enforcement officer because the officer lacked probable cause or reasonable suspicion to stop K.H., and therefore was not engaged in lawful performance of his duties. However, the evidence is sufficient to support conviction for the lesser included offense of simple battery, to which the case is remanded.
[1] An officer's duties are not lawful when the officer lacks probable cause or a founded suspicion to believe a person is committing an offense.
[2] Looking inside the windows of a parked vehicle, without more, is insufficient to establish the offense of loitering and prowling.
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Join FLexlaw to unlock all legal intelligence“One of the elements of battery on a law enforcement officer is that the officer "is engaged in the lawful performance of his or her duties...."”
Establishes the critical statutory element that the officer's lawfulness is essential to the battery charge
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Join FLexlaw to unlock all legal intelligenceTwo plainclothes police officers conducting drug surveillance in an unmarked pickup observed K.H. and a friend looking through the truck's windows lat…
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K.H. appeals an order finding that he committed the offense of battery on a law enforcement officer. We conclude that the evidence was legally insufficient and reverse.
*1156At about 11:00 P.M., two police officers were conducting drug surveillance in a residential neighborhood. The officers were parked in an unmarked Ford F150 pickup with dark tinted windows. K.H., a fourteen-year-old male, and his friend were walking home when they noticed the pickup parked on the swale with the engine running. K.H. and his friend walked around the pickup, placed their hands on the windows, and looked inside. They did not try the door handles, did not try to break into the vehicle, and did not have anything in their hands.
After a few minutes, one of the officers started to exit the vehicle. K.H. started walking rapidly away on the sidewalk and his friend jumped a nearby fence and ran away. The officer turned the truck around to go after K.H.’s friend but was unable to find him. When the officer spotted K.H. again, who was still walking rapidly, he got out of the truck and yelled for him to stop. K.H. tried to walk around the officer, who was in plain clothes. The officer tried to grab K.H., who pushed the officer in the chest and ran home. The officer chased him, took custody of him on the front porch of KH.’s house, and arrested him for loitering and prowling in violation of section 856.021, Florida Statutes (2007).1
At the adjudicatory hearing, K.H. was found to have committed battery on a law enforcement officer because he pushed the officer.2 One of the elements of battery on a law enforcement officer is that the officer “is engaged in the lawful performance of his or her duties.... ” § 784.07(2), Fla. Stat. (2007).
K.H. argues that the officer was not engaged in the lawful execution of a legal duty when K.H. allegedly pushed him. The State concedes that the act of looking inside the windows of the pickup, without more, is insufficient to establish the offense of loitering and prowling. See Addis v. State, 557 So.2d 84, 85 (Fla. 3d DCA 1990); Bowser v. State, 937 So.2d 1270, 1271 (Fla. 2d DCA 2006). However, the State argues that the totality of the circumstances gave rise to a reasonable suspicion of criminal activity when the conduct of K.H. and his friend is considered along with the fact that the officer was conducting drug surveillance. The State’s argument fails because there is nothing in the record to establish any connection between K.H. and any criminal activity.
We conclude that the evidence was legally insufficient to support a determination that K.H. committed battery on a law enforcement officer. There was neither probable cause, nor a founded suspicion, that K.H. was committing the offense of loitering and prowling. That being so, the officer was not engaged in the lawful performance of his duties when he stopped K.H. See Tillman v. State, 934 So.2d 1263, 1273 (Fla.2006).
However, the evidence is sufficient to find that K.H. committed the necessarily lesser included offense of misdemeanor battery under paragraph 784.03(l)(a)l, Florida Statutes (2007). See State v. Sigler, 967 So.2d 835, 844 (Fla.2007). Accordingly, we remand with instructions for the trial court to reduce the offense to simple battery.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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R.R. v. State, 137 So. 3d 535 (Fla. 4th DCA 2014)…two apartment buildings pulling themselves up to look into windows at 7:15 p.m. in December was insufficient to establish that the individuals were loitering at a time, in a place, or in a manner unusual for law-abiding individuals); K.H. v. State, 8 So. 3d 1155, 1156 (Fla. 3d DCA 2009) (finding that two individuals walking around a parked running pickup truck at 11:00 p.m., putting their hands on the windows, peering in, and walking rapidly away upon observing an officer exiting his vehicle was not a found…
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A.L. v. State, 84 So. 3d 1272 (Fla. 3d DCA 2012)…open any of the windows. Looking through windows, at this time of day and in this location, without more, is not sufficient to establish that A.L. loitered at a time, in a place, or in a manner unusual for law-abiding individuals. See K.H. v. State, 8 So. 3d 1155 (Fla. 3d DCA 2009) (concluding evidence insufficient to establish loitering and prowling when, at 11:00 p.m., juvenile and his companion were looking into the windows of a parked pickup truck in a high crime area, but did not try the door handles, d…
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T.B. v. State, 145 So. 3d 147 (Fla. 4th DCA 2014)…in the early evening hours in the alleyway between two apartment buildings looking into windows but were not observed carrying tools or attempting to pry open windows, and where the juvenile briefly concealed himself in a staircase); K.H. v. State, 8 So. 3d 1155, 1156 (Fla. 3d DCA 2009) (finding officer had no probable cause of loitering and prowling where juveniles were observed peering into a vehicle at 11:00 p.m. but they did not try the door handles and had nothing in their hands); G.G., 903 So. 2d at 1…
Authorities Cited
- Tillman v. State, 934 So. 2d 1263 (Fla. 2006)
- State v. Sigler, 967 So. 2d 835 (Fla. 2007)
- Dajuan Donya Bowser v. State, 937 So. 2d 1270 (Fla. 2d DCA 2006)
- Addis v. State, 557 So. 2d 84 (Fla. 3d DCA 1990)