Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 19, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-613 Lower Tribunal No. 18-1491 ________________ N.C., a juvenile, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Dawn Denaro, Judge. Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee. Before SALTER, LINDSEY and HENDON, JJ. SALTER, J. N.C., a juvenile, appeals the trial court’s adjudication of delinquency and commitment order for the misdemeanor charge of resisting arrest without violence, in violation of section 843.02, Florida Statutes (2018). Finding that the State failed to provide evidence that the arresting officers were engaged in a lawful duty when they arrested N.C., or evidence that they had an articulable, well-founded suspicion of criminal activity to justify stopping N.C., we reverse and remand the adjudication and commitment order. Facts and Procedural History On August 1, 2018, while on routine patrol, two Miami-Dade police officers saw a group of juveniles on the street and decided to approach them. In the course of a consensual encounter with the officers, sixteen-year-old N.C. provided his name, address, and telephone number. According to the officers, N.C. also told them he was a member of a gang. One of the officers testified that, following this encounter, he entered the information provided by N.C. into an “interview system so that it would be documented.” According to the officer, this was because of the revelation by N.C. that he belonged to a gang. The following day, that officer “sat down with our gang unit and we were going to enter [N.C.] and document him.” But that same day, the officer saw a “safety bulletin” at the station and noticed N.C.’s photo on it. The bulletin showed 2 N.C. under a different name and with information that did not match what N.C. had told the officers the preceding day. The bulletin, though not offered or admitted into evidence, purportedly advised that “the subjects on the bulletin were know[n] to carry firearms.” The officers concluded that N.C. had provided false information during the consensual encounter. Nevertheless, the officers testified that after learning this on August 2, 2018, they went about their normal day, with normal routine traffic patrol or calls for service. But during a routine patrol that same day, the uniformed officers encountered N.C. again and decided to stop him. The officer driving the marked police car activated the patrol lights, rolled down the window, and commanded N.C. to stop. The second officer exited the vehicle and approached N.C. Upon seeing the patrol car and officers, an officer testified that N.C. “threw his hands in the air like [flailing] like, oh, man.” N.C. turned and “attempted to start running.” The other officer, in closer proximity to N.C., then tackled N.C. to the ground. N.C. struggled as the officer was “trying to get [N.C.’s] hands in proper position to be able to be handcuffed.” Both officers were wearing body cameras during the August 2nd encounter, and pertinent segments of the video were shown at the bench trial. The video and transcript show N.C. saying to the approaching officer, “Watch out. Watch out. Get back. Get back.” In the video, the officer directs N.C. to “Get on the floor. Get 3 down on the mother f***ing floor,” and radios that he has a person in custody. The officer asks to see N.C.’s hands and arms, and then asks, “N.C., why did you lie to us yesterday?” to which N.C. responds, “F*** you all.” Two weeks later, the State filed a petition for delinquency charging N.C. with one count of resisting arrest without violence, in violation of section 843.02, Florida Statutes (2018). At the subsequent adjudicatory hearing, the State argued that N.C. resisted the officers as they attempted to arrest N.C. on August 2 “in connection with their investigation regarding the false information” supplied by N.C. on August 1. The defense argued that the State could not prove the elements of the offense because they were not executing a legal duty when they stopped N.C. on August 2. The defense contended (and contends here) that section 901.36, Florida Statutes (2018), makes it unlawful for a person to give a false name or “otherwise falsely identify himself or herself in any way” to a law enforcement officer (or county jail personnel) only after the person is arrested or lawfully detained. The trial court denied the motions for a judgment of acquittal, but only after pointedly asking the State what criminal activity served as the basis for the officers’ purported reasonable suspicion that N.C. had engaged in such activity. The State answered, “Being possible lying to the police. Possible giving a false name and other crimes that involve lying and providing incorrect information to law enforcement.” 4 The trial court entered an adjudicatory order finding N.C. delinquent for the charged offense, and N.C. was committed to the Department of Juvenile Justice for secure placement. This appeal followed. Analysis We review the denial of N.C.’s motions for a judgment of dismissal de novo. D.V. v. State, 286 So. 3d 796 (Fla. 3d DCA 2018). “While the evidence must be viewed in the light most favorable to the State, if the State fails to present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper.” C.T. v. State, 238 So. 3d 857, 859 (Fla. 3d DCA 2017) (citations omitted). As presently written, section 901.36 “does not make it a crime to give a false name during a ‘consensual field interview’ when there has been neither arrest nor lawful detention.” Bordelon v. State, 908 So. 2d 543, 544 (Fla. 1st DCA 2005); see also K.Q.W. v. State, 951 So. 2d 66, 67 (Fla. 5th DCA 2007) (reversing adjudication of delinquency for violation of section 901.36 for a juvenile who had neither been arrested nor detained when she gave a false name to the officer); Whyte v. State, 940 So. 2d 1174, 1176 (Fla. 2d DCA 2006) (“Absent a reasonable suspicion or probable cause to detain or arrest Mr. Whyte on some other lawful ground, Mr. Whyte’s failure to give his true name could not, alone, provide probable cause for the arrest under section 901.36(1).”). 5 The statute under which N.C. was charged, section 843.02, Florida Statutes (2018), requires proof of the legality of the arrest resisted by the defendant. “Under Section 843.02 it is apparent that the proof of the legality of an arrest is an essential element to be shown by the prosecution.” Lee v. State, 368 So. 2d 395, 396 (Fla. 3d DCA 1979). In N.C.’s case, the absence of such proof is similarly fatal to the State’s prosecution. The State’s reliance on E.W. v. State, 873 So. 2d 485 (Fla. 1st DCA 2004), is misplaced. The officers’ citizen-police interaction with N.C. on August 1 was not an arrest or detention. The false information given by N.C. thus was not after a lawful arrest or detention. The officers’ attempt to arrest or detain N.C. the following day was not based on a founded suspicion that he had committed, or was about to commit, a crime. The unsubstantiated information in the station house bulletin containing N.C.’s photo and correct name was not admitted and cannot be relied upon by the State to link N.C. to his past commission, or any imminent commission, of a crime. When the officers testified, they said that they stopped N.C. on August 2nd because of the incorrect identification he gave them the day before. After they learned that information was incorrect, and even after they saw the officer safety bulletin, the officers did not do anything particular in response to it. They began their daily routine of traffic patrols and responses to service calls. According to the 6 officers, their second encounter with N.C. was by chance, not design, and was not part of a discrete investigation or “be on the lookout” service call. On the record before us, the adjudication and commitment must be reversed. N.C.’s untruthful statements regarding his identity on August 1, when he was neither arrested nor detained, did not provide probable cause for his arrest or detention on August 2. Reversed and remanded for dismissal of the petition for delinquency. 7