A.T., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the odor of marijuana emanating from a general area was insufficient to establish reasonable suspicion for an investigatory detention, thus the officer was not acting in lawful execution of a legal duty when the defendant resisted.
[1] A conviction for resisting an officer without violence requires proof that the officer was engaged in the lawful execution of a legal duty and that the defendant obstruct…
[2] To support an investigatory detention, an officer must have a reasonable suspicion of criminal activity based on the totality of the circumstances known to the officer be…
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Join FLexlaw to unlock all legal intelligenceAn officer, responding to a suspicious vehicle call, smelled cannabis in the general area of a parked car and three individuals. When asked for identi…
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A.T. appeals the disposition order in which the trial court found him guilty of resisting an officer without violence and withheld adjudication. He argues that the trial court should have granted his motion for judgment of dismissal because the state failed to establish that the officer had reasonable suspicion to justify an investigatory detention when appellant refused the officer’s request for identification and attempted to walk away from the officer. We are compelled to agree and therefore reverse.
During appellant’s trial, an officer from the Davie Police Department testified that on December 17, 2010, he was dispatched to a call “in reference to a suspicious vehicle.” Upon arrival, he exited his marked vehicle and observed three people standing around a parked car. As the officer approached the group, he smelled “a strong odor of cannabis emitting from the area of the vehicle where the subjects were standing.” When asked if he could tell from which individual the odor was emanating, the officer responded, “It was in the general area.”
The officer asked the three individuals for identification. Two of the individuals produced identification, but appellant, who was the third individual, did not. The officer warned appellant that he would be arrested if he did not produce identification. Appellant responded, “I don’t need to give you my ID,” and proceeded to walk away. Thereupon, the officer grabbed appellant by his arm in order to detain him and appellant pulled away. Appellant continued to struggle and pull away from the officer as the officer attempted to put handcuffs on appellant.
After the state rested, defense counsel moved for a judgment of dismissal arguing that this was a consensual encounter in which appellant was free to walk away, and that the police officer who was responding to an anonymous tip regarding a suspicious vehicle did not observe anything that would give rise to a reasonable and well-founded suspicion that appellant was engaged in unlawful activity. The trial court denied the motion. Appellant argues on appeal that the trial court erred in denying his motion.
We review a trial court’s denial of a motion for judgment of dismissal de novo. A.W. v. State, 82 So.3d 1136, 1138 (Fla. 4th DCA 2012). “A conviction for resisting an officer without violence requires proof that (1) the officer was engaged in the lawful execution of a legal duty; and, (2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.” Id. (emphasis added) (citation and quotation marks omitted).
Because the state contended that appellant resisted an officer in the execution of an investigatory detention, the state was required to prove that the officer had a reasonable suspicion of criminal activity that would support the detention. See id. (“In [resisting without violence] cases involving an investigatory detention, it is necessary for the State to prove that the officer had a reasonable suspicion of criminal activity .... ” (quoting Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008))). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Fuentes v. State, 24 So.3d 1231, 1234 (Fla. 4th DCA 2009) (citation and quotation marks omitted).
In this case, the officer testified that his decision to conduct an investigatory detention was based solely on the fact that he could smell an odor of marijuana emanating from the general area where appellant and the two other individuals were standing. The officer acknowledged *1161that he never observed any of the individuals committing a crime nor did he observe them make any furtive movements. Additionally, when the officer approached the group of individuals, none of them tried to run from the location. The fact that appellant “was standing with a group of [individuals] surrounded by the odor of burned marijuana was insufficient to supply more than a ‘mere suspicion’ that [appellant] was in possession of marijuana.” See Robinson v. State, 976 So.2d 1229, 1238 (Fla. 2d DCA 2008).1 However, “[m]ere suspicion is not enough to support a stop.” Popple v. State, 626 So.2d 185, 186 (Fla.1993).
In summary, the odor of marijuana emanating from the general area where appellant and two other individuals were standing did not provide the officer with reasonable suspicion to detain appellant; therefore, the officer was not acting in the lawful execution of a legal duty when appellant refused to present his identification and attempted to walk away. Thus, the finding of guilt as to resisting an officer without violence must be reversed.
Reversed and remanded for entry of judgment of dismissal.
STEVENSON and TAYLOR, JJ., concur.
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D.H. v. State, 121 So. 3d 76 (Fla. 3d DCA 2013)…e directly linking the smell of marijuana to individuals other than Green, and no evidence directly linking Green, the officers lacked probable cause to believe that Green was also in possession of marijuana. Id. at 1245-46; see also A. T. v. State, 93 So. 3d 1159, 1161 n. 1 (Fla. 4th DCA 2012) (“[T]he odor of marijuana emanating from the general area where appellant and two other individuals were standing did not provide the officer with reasonable suspicion to detain appellant.”). Because the only facts ju…
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Sheddrick Jubree Brown, Jr. v. State, 224 So. 3d 806 (Fla. 2d DCA 2017)…la. 3d DCA 2010)). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Id. (quoting A.T. v. State, 93 So. 3d 1159, 1160 (Fla. 4th DCA 2012)). In denying the motion to suppress, the trial court ruled that “[t]he initial detention of Brown was supported by reasonable suspicion that he had committed the crime of trespass, which does not require a prior warning by…
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B.G. v. State, 213 So. 3d 1016 (Fla. 2d DCA 2017)…(internal quotations omitted)). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” A.T. v. State, 93 So. 3d 1159, 1160 (Fla. 4th DCA 2012) (emphasis added) (quoting Fuentes v. State, 24 So. 3d 1231, 1234 (Fla. 4th DCA 2009)). In other words, an officer cannot justify a detention after the fact based on information gathered during the improper detention. Here,…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tedd J. Popple v. State, 626 So. 2d 185 (Fla. 1993)
- Davis v. State, 973 So. 2d 1277 (Fla. 2d DCA 2008)
- A.W. v. State, 82 So. 3d 1136 (Fla. 4th DCA 2012)
- Kirenia Fuentes v. State, 24 So. 3d 1231 (Fla. 4th DCA 2009)
- State v. Lucio Hernandez, 706 So. 2d 66 (Fla. 2d DCA 1998)
- Stevie R. Robinson v. State, 976 So. 2d 1229 (Fla. 2d DCA 2008)
- Green v. State, 831 So. 2d 1243 (Fla. 2d DCA 2002)