
    R.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2420.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    
      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

R.R. appeals the order adjudicating him guilty of resisting an officer without violence, contending that his motion for judgment of dismissal at trial should have been granted because the arresting officer was not performing a legal duty when R.R. continued to run, even after the officer commanded him to stop. We affirm the adjudication of delinquency.

On December 29, 2011 around 3:00 p.m., a Miami police officer on “Grinch patrol” (working to deter crime around the holidays) observed R.R. walking with another juvenile male in a parking lot between a McDonald’s and a Payless Shoe Store. The officer saw R.R. and his companion look into one vehicle, then into a second vehicle. The officer began to drive toward the two juveniles and intercepted them as they were walking toward his vehicle. In anticipation that the juveniles were going to commit or attempt to commit a burglary-on one of the vehicles, the officer turned on his lights, exited his vehicle, made eye contact, and identified himself by stating, “police, I need you guys to come over here.” Instead, R.R. and his companion ran away. The officer yelled “stop, police” and chased the juveniles in his vehicle. Eventually, the two juveniles split up, and the officer followed R.R. until he was able to apprehend R.R.

R.R. was charged with resisting an officer without violence, pursuant to section 843.02, Florida Statutes (2011). An adjudicatory hearing was conducted by the circuit court in Miami-Dade County. At the close of the State’s case, R.R. moved for a judgment of dismissal. Defense counsel argued that walking through a parking lot and simply looking into two car windows, without touching the car doors, did not give rise to a reasonable suspicion that R.R. had committed a crime. Without reasonable suspicion, the officer was therefore not engaged in the lawful execution of a legal duty when he ordered R.R. to stop. Defense counsel also argued that flight alone is insufficient to form the basis for resisting an officer without violence.

The circuit court reserved ruling on the motion for judgment of dismissal, but implicitly denied the motion when it subsequently adjudicated R.R. delinquent as charged. Jurisdiction over the case was then transferred to Palm Beach County, where R.R. resided, for disposition. Subsequently, the circuit court withheld adjudication of delinquency and placed R.R. on probation.

R.R. argues on appeal that his motion for judgment of dismissal should have been granted. The standard of review is de novo. R.H. v. State, 56 So.3d 156, 157 (Fla. 4th DCA 2011).

To prove the crime of resisting an officer without violence, “the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla.2009). “An officer’s command to stop is a lawful execution of a legal duty if there is reasonable suspicion to support the stop.” Palmer v. State, 112 So.3d 606, 607 (Fla. 4th DCA 2013) (citing C.E.L., 24 So.3d at 1186). “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.” State v. Gonzalez, 840 So.2d 401, 403 (Fla. 4th DCA 2003) (quoting Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001)). “For reasonable suspicion justifying a detention to exist, ‘the detaining officer[ ] must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’” Tillman v. State, 934 So.2d 1263, 1273 (Fla.2006) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). The officer “must be able to articulate something more than an ‘inchoate and unpartic-ularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581,104 L.Ed.2d 1 (1989).

Here, R.R. fled before the officer commanded him to stop, but after the officer initially drove toward the juveniles to intercept them, stopped his patrol car, turned on his overhead lights, stepped out of his vehicle, made eye contact, and identified himself by stating, “police, I need you guys to come over here.” We are satisfied that prior to issuing the command to stop, the officer engaged in an investigatory stop, rather than a consensual encounter. See Errickson v. State, 855 So.2d 700, 702 (Fla. 4th DCA 2003) (“Courts have routinely held that an officer’s use of emergency lights ‘evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave.’ ”) (quoting Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002)); Houston v. State, 925 So.2d 404, 407 (Fla. 5th DCA 2006); cf. G.M. v. State, 19 So.3d 973, 979 (Fla.2009) (rejecting a per se rule that use of emergency lights constitutes a seizure under the Fourth Amendment, but holding instead that the use of emergency lights is one factor to consider). However, the real issue in this case is whether the officer had a reasonable suspicion necessary to justify a stop when the command to stop was given. Mosley v. State, 739 So.2d 672, 675 (holding that an initial invalid pursuit ripened into probable cause to arrest for resisting arrest without violence based on the defendant’s observed discard of cocaine pipe during chase).

The only reasons articulated by the officer for initially detaining R.R. were his observations, around 3:00 p.m., four days after Christmas, that R.R. and his companion were walking around vehicles in a parking lot and looking into one vehicle and then a second vehicle. The officer did not testify that he saw the juveniles attempting to enter any vehicle, or that the location was a “high crime” area. Based on the facts articulated by the officer, there was no reasonable suspicion of criminal activity to initially justify an investigatory stop.

In the context of loitering and prowling prosecutions, our sister courts have held that looking into windows, without more, is insufficient to raise a reasonable suspicion of criminal activity. See A.L. v. State, 84 So.3d 1272, 1273-74 (Fla. 3d DCA 2012) (holding that two individuals between two apartment buildings pulling themselves up to look into windows at 7:15 p.m. in December was insufficient to establish that the individuals were loitering at a time, in a place, or in a manner unusual for law-abiding individuals); K.H. v. State, 8 So.3d 1155, 1156 (Fla. 3d DCA 2009) (finding that two individuals walking around a parked running pickup truck at 11:00 p.m., putting their hands on the windows, peering in, and walking rapidly away upon observing an officer exiting his vehicle was not a founded suspicion for loitering and prowling); Bowser v. State, 937 So.2d 1270, 1271 (Fla. 2d DCA 2006) (holding that four individuals observed for twenty minutes walking the street at 2:00 a.m. looking into unoccupied vehicles in a very dark area was not sufficient to raise justifiable alarm of an immediate threat); Addis v. State, 557 So.2d 84, 84 (Fla. 3d DCA 1990) (determining that defendant, who looked like a drifter, observed by an officer walking down an alley at 2:40 a.m., looking into parked vehicles, did not justify an arrest for loitering and prowling). If looking into windows in the dark of night, standing alone, is insufficient to establish that a suspect is engaged in behavior unusual for law-abiding citizens and insufficient to raise a justifiable alarm of an immediate threat, it is difficult to discern how such behavior in a parking lot, in the middle of the afternoon, even during the holiday season, can raise a reasonable suspicion justifying an investigatory stop.

The State argues, however, that flight from the police after an officer observes activity consistent with potential auto burglary is, by itself, sufficient to establish reasonable suspicion to conduct a stop, based on C.E.L. In C.E.L., the defendant was arrested after fleeing from officers in a high-crime area and failing to obey their commands to stop. The defendant engaged in no suspicious behavior prior to fleeing from the officer. Concluding it was bound by the U.S. Supreme Court’s opinion in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), which held an individual's unprovoked, headlong flight from the police in a high-crime area can create sufficient reasonable suspicion to warrant an investigative stop, our supreme court held that the defendant’s continued flight in knowing defiance of the officer’s lawful order to stop constituted resisting an officer. C.E.L., 24 So.3d at 1189. While C.E.L. is distinguishable from the facts of this case, where the officer gave no testimony that the area in which R.R. was observed looking into cars was a “high crime” area, there are legal principles discussed by our supreme court in C.E.L. which are applicable to the resolution of this case.

The court noted that in Wardlow, the U.S. Supreme Court observed that “ ‘[h]eadlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.’ ” Id. at 1185 (quoting Wardlow, 528 U.S. at 124, 120 S.Ct. 673). The court went on to state that the U.S. Supreme Court “concluded that flight from police could be one relevant factor in determining reasonable suspicion.” Id.

More important to our decision is the supreme court’s resolution of a conflict between the Second District’s en banc decision in C.E.L. v. State, 995 So.2d 558 (Fla. 2d DCA 2008), and the decision of the Third District in D.T.B. v. State, 892 So.2d 522 (Fla. 3d DCA 2004), on the issue. of whether section 843.02 requires a reasonable suspicion of criminal activity to exist before an individual flees, when officers first approach a suspect. The supreme court agreed with the Second District that “section 843.02 provides no basis for the interpretation that reasonable suspicion must arise before the flight begins.” C.E.L., 24 So.3d at 1188. More specifically, the court held:

Under the statute’s plain language, it is of no consequence whether the obstructing conduct is initiated before the officer has any legal duty to act. The essential inquiry should instead focus on whether the officer was lawfully executing a legal duty when the obstructing conduct occurred.

Id. at 1188-89.

Although the officer in this case may not initially have had sufficient grounds for an investigatory stop when he exited his vehicle and instructed R.R. and his companion to come to him, once R.R. engaged in an unprovoked, headlong flight from the officer, that behavior, coupled with the officer’s prior observations of R.R. looking into the windows of two parked cars in a parking lot during the holiday season, supplied the officer with sufficient reason to conduct an investigatory stop. When the officer then commanded R.R. to stop, and the flight continued, R.R. committed the offense of resisting an officer without violence.

Having determined that the officer had grounds for an investigatory stop at the time he commanded R.R. to stop, and that the officer was performing a legal duty when the command was given, the circuit court properly denied R.R.’s motion for judgment of dismissal.

Affirmed.

TAYLOR, J., concurs.

KLINGENSMITH, J., concurs in part and dissents in part with opinion.

KLINGENSMITH, J.,

concurring in part and dissenting in part.

While I concur with the majority’s decision to affirm R.R.’s adjudication for resisting an officer without violence, I write to express my dissent from the portion of the opinion stating that there was no reasonable suspicion of criminal activity that would have justified an investigatory stop by the officer for loitering and prowling. Under the facts, I believe there would have been a sufficient basis for the officer to detain R.R. based on his observation of R.R.’s actions and the totality of the circumstances prior to ordering him to stop.

There are two elements to a loitering and prowling charge: (1) that the defendant loitered or prowled “in a place, at a time or in a manner not usual for law-abiding individuals” and (2) such loitering took place under “circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021(1), Fla. Stat. (2012). See also C.H.S. v. State, 795 So.2d 1087, 1090 (Fla. 2d DCA 2001); Jaudon v. State, 749 So.2d 548, 549 (Fla. 2d DCA 2000). Alarm is presumed under the statute if the defendant flees, conceals himself or any object, or refuses to identify himself when law enforcement appears. See C.H.S., 795 So.2d at 1090.

“Whether the inference drawn by police was objectively reasonable involves the application of logic and judicial experience and is reviewable de novo.” Wallace v. State, 8 So.3d 492, 494 (Fla. 5th DCA 2009). “[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). If the totality of circumstances is ambiguous, involving conduct that can be interpreted as lawful or as criminal activity, police may detain an individual to resolve the ambiguity. Rhoden v. State, 941 So.2d 5, 9 (Fla. 2d DCA 2006) (citing Wardlow, 528 U.S. at 125, 120 S.Ct. 673).

In support of its decision, the majority relies in part on several cases, including Addis v. State, 557 So.2d 84 (Fla. 3d DCA 1990). I do not find the facts as presented in those cases to be controlling here. In Addis, the defendant was observed by a police officer at 2:40 a.m. walking down an alley looking into parked vehicles. Id. The officer was not responding to any call about suspicious persons when he first saw the defendant. Although the defendant never tried any of the car door handles, the officer, believing that Addis was thinking of breaking into a ear, drove into the alley shining his high beam headlights on him. The defendant, who was dressed like a “drifter,” looked back at the police car and started walking in another direction. The officer then stopped him and asked what he was doing in the alley. The defendant did not have identification and did not give the officer straightforward answers regarding his purpose in the alley. Id. at 85. When he could not allay the officer’s suspicions and could not answer questions posed to him, defendant was arrested for loitering and prowling. A search incident to his arrest revealed drug paraphernalia and cocaine in defendant’s possession.

There, the Third District found that the facts articulated did not meet the probable cause requirements of the statute where the defendant was arrested because: (a) the defendant “had looked into two parked cars,” (b) “had no identification, (c) the officer did not believe that the defendant had a particular destination, and (d) the officer did not consider the defendant’s answers to be straightforward.” Id. As such, the Third District ruled that this behavior was not criminal and did not support an arrest for loitering and prowling. In so holding, the court stated:

Something more than the above is needed before such an arrest can be considered legally justified. Additional facts and circumstances would be needed to tip the balance in favor of upholding the arrest and resulting search. Here, for example, no door handles were tried and no cars were repeatedly circled by the appellant. Therefore, with the arrest being unlawful, it was error for the trial court to deny the defendant’s motion to suppress the evidence gathered therefrom.

Id. (emphasis added).

Various facts in combination with others may lead an officer to have reasonable suspicion. The reasonable suspicion standard requires courts to examine the totality of circumstances, or “whole picture,” to determine whether the detaining officers had a “particularized and objective basis” for suspecting the person stopped of criminal activity. Price v. State, 120 So.3d 198, 200 (Fla. 5th DCA 2013). Factors commonly considered among the totality of circumstances in determining reasonable suspicion are “the time and day, the location, the physical appearance of the suspect, the suspect’s behavior, the appearance and manner of ... [movement], and anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.” Id. at 202 (quoting State v. K.N., 66 So.3d 380 (Fla. 5th DCA 2011)).

In this case, the arresting officer was on “Grinch patrol” in Miami in order to deter crime around the holidays. While on patrol on December 29, 2011, the officer observed R.R. and another male juvenile in an area of parked cars by a fast food restaurant and a shoe store. R.R. was seen walking around the vehicles and looking inside of them. Believing that the juveniles were going to commit or attempt a burglary on one of the vehicles, the officer turned on his lights, exited his vehicle, made eye contact, and identified himself by stating “Police, I need you guys to come over here.” R.R. then took flight but was soon apprehended.

The majority overlooks the fact that R.R. was seen repeatedly circling more than one vehicle while also looking into the cars through their windows — a critical fact cited by the Addis court as missing from their factual scenario. Addis, 557 So.2d at 85. Coupled with the additional fact that these vehicles were parked in a commercial area at a time of year when police (and criminals) know that cars are more likely to contain holiday shopping merchandise (hence the activity’s nickname the “Grinch patrol”), R.R.’s actions were sufficient to raise alarm with the officer and justify an investigation.

"While I would agree that the “mere act” of looking into windows, without more, has been established by case law to be insufficient to raise reasonable suspicion, I believe under the specific circumstances of this case there were sufficient additional facts to satisfy the requirements for a valid investigatory stop relating to a possible loitering and prowling charge. 
      
      . Because unprovoked, headlong flight can be one factor establishing a reasonable suspicion of criminal activity, C.E.L., 24 So.3d at 1185, the cases cited above regarding loitering and prowling are distinguishable. None of the cases involving loitering and prowling prosecutions contained facts of an unprovoked, headlong flight.
     