        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          PATRICK JACKSON,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-972

                             [May 11, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case No. 12-5789
CF10A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   The issue presented is whether appellant can be convicted of resisting
arrest without violence when he refused to leave his home after the police,
without a warrant or exigent circumstances, ordered him to come outside
and submit to police custody. Because we find that ordering appellant to
leave his home was unlawful, we reverse appellant’s conviction for
resisting arrest without violence. However, we find the remaining issues
appellant raises to be without merit and affirm without comment.

   The victim—a resident and maintenance worker in an apartment
complex—had been working in another resident’s apartment when
appellant entered the apartment and attacked him. Subsequently, the
police were called.

   When the police arrived, they spoke to the victim and other witnesses
to assess what had happened. The police could see appellant standing in
his own apartment, near an open window, speaking on his cell phone.
While the police attempted to interview the victim and the other witnesses,
appellant began yelling at them, saying he was the real victim and that he
had also called the police.

   Officer Graul approached the window to speak with appellant, but
appellant refused to talk to anyone other than the chief of police. Graul
asked appellant to speak with him at appellant’s front door. After
appellant refused to voluntarily go to his front door, Graul ordered
appellant to leave his apartment so that he could be arrested for battery.
Appellant again refused. Graul then reached through the open window
and attempted to grab appellant. Appellant was able to evade Graul and
started barricading his apartment. Although there is some dispute in the
record as to what transpired next, the police were eventually able to get
into appellant’s apartment to arrest him.

   Appellant was charged with battery on a law enforcement officer,
resisting arrest without violence, and battery of the neighbor. At trial,
appellant moved for judgment of acquittal on the resisting arrest without
violence count because he was arrested within his home without a
warrant. The court denied appellant’s motion.

    The jury found appellant not guilty of battery on a law enforcement
officer, but found appellant guilty of both resisting arrest without violence
and battery of the neighbor.

   Appellant now argues the lower court should have entered judgment of
acquittal on the resisting arrest without violence count because his arrest
was unlawful. We agree.

   “In reviewing a motion for judgment of acquittal, a de novo standard of
review applies.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

    The crime of resisting an officer without violence requires the state to
prove 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.” A.W. v. State, 82 So. 3d
1136, 1138 (Fla. 4th DCA 2012) (citation omitted). Proof of the first
element requires the court to “examin[e] the applicable legal standard” that
“govern[s] [the officer’s] actions.” C.E.L. v. State, 24 So. 3d 1181, 1186
(Fla. 2009). The court must then determine “whether the officer complied
with that legal standard at the point where the act of resistance occurred.”
Id. If an arrest is unlawful, “a defendant cannot be guilty of resisting it”
without violence. Jay v. State, 731 So. 2d 774, 775 (Fla. 4th DCA 1999)
(citation omitted).


                                     2
    In this case, Payton v. New York, 445 U.S. 573 (1980), supplies the
applicable legal standard. In Payton, the United States Supreme Court
stated that the police may not intrude into the sanctity of the home to
execute an arrest absent consent, exigent circumstances, or a warrant. Id.
at 583, 587. See also Saavedra v. State, 622 So. 2d 952, 956 (Fla. 1993).
Furthermore, “law enforcement cannot avoid the dictates of Payton
and Saavedra by ordering suspects out of their homes, then arresting or
detaining them as if they had been encountered ‘abroad.’” Davis v. State,
744 So. 2d 586, 588 (Fla. 2d DCA 1999); see also M.J.R. v. State, 715 So.
2d 1103, 1104 (Fla. 5th DCA 1998) (holding the police had no authority to
demand the defendant leave a door open to the defendant’s residence
because the police did not have a warrant and did not have the authority
to “invade the sanctity of the home”); United States v. Maez, 872 F.2d 1444,
1451 (10th Cir. 1989) (“[T]he important point is that in cases of physical
intrusion, or coercion to leave the home, . . . the privacy of the home is
effectively invaded.”).

   The police failed to comply with the requirements of Payton. Although
appellant was fully within his home, the police did not acquire an arrest
warrant, and there was no evidence of exigent circumstances. Although
the state argues the crime of resisting arrest without violence was complete
before the police actually entered appellant’s apartment because appellant
refused to exit his apartment and submit to an arrest, the police could not
circumvent Payton’s dictates by ordering appellant out of his home to be
arrested. See Davis, 744 So. 2d at 588. Consequently, appellant was
within his right to refuse the police’s unlawful order and to stay within his
home. Jay, 731 So. 2d at 775.

   As Judge Jerome Frank noted many years ago,

      A man can still control a small part of his environment, his
      house; he can retreat thence from outsiders, secure in the
      knowledge that they cannot get at him without disobeying the
      Constitution. That is still a sizable hunk of liberty—worth
      protecting from encroachment. A sane, decent, civilized
      society must provide some such oasis, some shelter from
      public scrutiny, some insulated enclosure, some enclave,
      some inviolate place—which is a man’s castle.

United States v. On Lee, 193 F.2d 306, 315-16 (2d Cir. 1951) (Frank, J.,
dissenting). Appellant in the present case had a right to stay within his
home, secure in the knowledge that the constitution protects his right, in
these circumstances, to be secure from “encroachment.” We therefore
reverse appellant’s conviction for resisting arrest without violence.

                                     3
   In summary, we vacate appellant’s conviction for resisting arrest
without violence as the arrest was unlawful.     However, we affirm
appellant’s conviction and sentence for battery.

  Affirmed in part; reversed in part.

STEVENSON and GERBER, JJ., concur.

                           *            *   *

  Not final until disposition of timely filed motion for rehearing.




                                        4
