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, 
2

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). 
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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. 
4

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.