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 
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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.