       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                            RICHARD SCOTT,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-4622

                           [November 26, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos S. Rebollo, Judge; L.T. Case No. 11003069CF10A.

  Carey Haughwout, Public Defender, and Narine N. Austin, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, C.J.

   Richard Scott appeals his judgment and sentence for one count of
resisting arrest without violence. He argues that the trial court erred in
denying his motion for judgment of acquittal because the state failed to
establish that the arresting officers were legally performing an
investigatory stop. We agree and reverse.

    At Appellant’s trial, the state presented the following evidence. On the
day of Appellant’s arrest, two officers were conducting surveillance on a
residence for the purpose of executing an arrest warrant on a man by the
name of R.Q. During the course of their surveillance, the officers saw
Appellant exit the house wearing a full-face motorcycle helmet. The
officers approached Appellant to determine whether he was the man they
were looking for, at which point Appellant took off his helmet and gave the
officers his name. The officers were unable to confirm Appellant’s identity
in their system so Appellant invited them inside the residence while he
looked for his driver’s license. Appellant could not find his license, so he
and the officers went back outside. The officers then asked Appellant to
have a seat on the porch while they tried to confirm his identity. A few
minutes later, Appellant walked back into the house and locked the door.

   Fearing that Appellant was trying to run, the officers went around the
house where they saw Appellant exit, jump the fence, and flee. The officers
pursued, caught, and arrested Appellant. The officers later determined
that they were unable to immediately verify Appellant’s identity because
the date of birth Appellant provided was off by one year. After the state
rested, Appellant moved for a judgment of acquittal arguing that Appellant
was in a consensual encounter with the officers and, therefore, had every
right to end the encounter however and whenever he wanted. The court
denied the motion. This appeal follows.

   In moving for a judgment of acquittal, a “defendant . . . admits not only
the facts stated in the evidence adduced, but also admits every conclusion
favorable to the state that a jury might fairly and reasonably infer from the
evidence. We must review the record to determine whether there is
sufficient evidence to support the jury’s verdict.” Blue v. State, 837 So. 2d
541, 547 (Fla. 4th DCA 2003) (internal citations omitted).

   “For a conviction for resisting an officer without violence, the State
must show that: (1) the officer was engaged in the lawful execution of a
legal duty; and (2) the action by the defendant constituted obstruction or
resistance of the lawful duty.” Id. at 547 (citing Slydell v. State, 792 So.
2d 667, 671 (Fla. 4th DCA 2001)). “Examples of the lawful execution of a
legal duty include: 1) serving process; 2) legally detaining a person; or 3)
asking for assistance in an emergency situation.” A.R. v. State, 127 So. 3d
650, 654 (Fla. 4th DCA 2013).

   The State concedes that the officers were performing an investigative
stop of Appellant when he fled and thus this case comes down to whether
the stop was legal. Under Florida’s “Stop and Frisk Law,” a law
enforcement officer may perform an investigative stop “under
circumstances which reasonably indicate that such person has
committed, is committing, or is about to commit a [criminal] violation.”
§ 901.151(2), Fla. Stat. (2010). When considering whether such a stop is
justified, we “must look at the totality of the circumstances of each case to
see whether the detaining officer has a particularized and objective basis
for suspecting legal wrongdoing.” State v. Lewis, 98 So. 3d 89, 92 (Fla.
4th DCA 2012). “‘[T]he likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard.’” Id. (quoting United
States v. Arvizu, 534 U.S. 266, 274 (2002)). “‘[T]he determination of
reasonable suspicion must be based on commonsense judgments and

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inferences about human behavior.’” Id. (quoting Illinois v. Wardlow, 528
U.S. 119, 125 (2000)).

    We rely on the Second District’s decision in Rios v. State, a strikingly
similar factual scenario, in which the court held that the officers did not
have a reasonable suspicion to support their investigatory stop. 975 So.
2d 488, 491 (Fla. 2d DCA 2007). There, two officers went to the address
associated with a man they had a warrant to arrest. Id. at 489. Upon
arriving at the address, they encountered the defendant, who told them
that he was the brother of the man they were looking for. Id. The officers
asked the defendant for identification, which he indicated was with his
wife inside the house. Id. The officers detained the defendant while
waiting for his wife to produce his identification, eventually patting him
down and discovering drugs on his person. Id. Although the defendant
turned out not to be the man the officers were looking for, he was arrested
for possession. Id. The defendant moved to suppress the drugs found on
his person, arguing that they were found as the result of an illegal stop.
Id. In determining that the drugs should have been suppressed, the
Second District reasoned:

      [T]here was no testimony as to present criminal activity in
      which [defendant] might have been engaged or potential
      future criminal activity; indeed, criminal activity during these
      timeframes was not an issue at all. Moreover, the only
      potential source of reasonable suspicion as to past criminal
      acts in which [defendant] might have engaged was the activity
      for which his half-brother [] was to be arrested pursuant to
      the arrest warrant. However, “[t]he existence of an arrest
      warrant is of no moment on the question whether a
      particular person police officers come across is in fact the
      subject of the warrant. The warrant supplies the officers
      with probable cause to arrest the person it names and
      describes, not a license to duck the reasonable suspicion
      requirement and stop someone they only have a subjective
      hunch is that person.”

Id. at 491 (quoting U.S. v. Hudson, 405 F.3d 425, 439 n.9 (6th Cir. 2005))
(emphasis added).

    Here, like in Rios, there was no testimony that the officers suspected
Appellant was engaging in or was going to engage in criminal activity.
There was not even testimony that Appellant looked like R.Q. or that the
officers believed he was R.Q. for any objective reason. Rather, as the State
concedes, the officers’ entire basis for stopping Appellant was that he “was

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walking out of a residence where the person they were seeking to arrest
was known to reside.” As established by Rios, the mere fact that a person
is at the residence associated with a suspect with a pending arrest warrant
does not in itself justify an investigative stop.

   Reversed.

STEVENSON and GROSS, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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