Third District Court of Appeal
State of Florida
Opinion filed November 12, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-772
Lower Tribunal No. 14-3559
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W.B., a juvenile,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Maria De Jesus
Santovenia, Judge.
Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for appellee.
Before SHEPHERD, ROTHENBERG and SCALES, JJ.
SCALES, J.
W.B., the defendant below, appeals his conviction for resisting arrest
without violence after fleeing from a traffic stop. The trial court withheld
adjudication and placed W.B., a juvenile, on probation. Because we conclude that
the police officer did not have a lawful basis for the traffic stop that resulted in
W.B.’s conviction, we reverse.
I. Facts
On November 14, 2014, W.B., a minor who had turned sixteen years of age,
was driving a motorized scooter at night in Miami. W.B. was not wearing
protective eyewear; and W.B.’s recently obtained driver’s license was suspended.
A police officer who knew W.B. from previous encounters over a period of
several years, sought to stop W.B., ostensibly because the officer believed W.B.
was not old enough to drive a scooter. Additionally, as the officer would later
testify, the officer believed W.B. was required to wear protective eyewear.
At the police officer’s approach, W. B. jumped off the scooter and fled from
the officer on foot. Eventually, the officer apprehended W.B. at a nearby
intersection.
W.B. was charged with resisting arrest without violence in violation of
section 843.02 of the Florida Statutes. In relevant part, this statute provides:
“Whoever shall resist, obstruct or oppose any officer . . . in the lawful execution of
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any legal duty, without offering or doing violence to the person of the officer, shall
be guilty of a misdemeanor of the first degree . . . .” (emphasis added)
After the State rested its case, W.B. moved for a judgment of dismissal,
arguing that the officer was not executing a legal duty when he tried to stop W.B.
because the officer lacked a reasonable suspicion as a basis to make the stop.
The trial court denied W.B.’s motion and found W.B. guilty of resisting
arrest without violence. W.B. timely appealed.
II. Standard of Review
In a juvenile proceeding, we apply a de novo standard of review to a trial
court’s denial of a motion of dismissal. I.M. v. State,
917 So. 2d 927, 928 (Fla. 1st
DCA 2005).
III. Analysis
W.B. argues that, because the officer lacked reasonable suspicion to stop
W.B., the State failed to establish an essential element of the crime of resisting
arrest without violence; to wit, that the officer was lawfully executing a legal duty.
Jay v. State,
731 So. 2d 774, 775 (Fla. 4th DCA 1999).
The State asserts that the officer was justified in stopping W.B. because the
officer reasonably believed – from his prior encounters with W.B. – that W.B. was
not old enough to operate a scooter (that is, W.B. was not yet sixteen years old).
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The officer had several interactions with W.B. over the years, including a
casual, non-investigatory encounter a few weeks before the date of arrest. In that
recent encounter, the officer did not check W.B.’s status as a licensed driver. The
officer testified that he maintained a general impression that W.B. was too young
to operate a vehicle. There was no evidence that the officer knew W.B.’s birthday.
In fact, on the date of arrest, W.B. was about sixteen years and nine months
old, indicating that the officer’s knowledge about W.B.’s eligibility to hold a
driver’s license was more than nine months old. Therefore, we conclude that the
officer’s knowledge was stale. Moody v. State,
842 So. 2d 754, 758-59 (Fla. 2003)
(holding that a police officer’s information about a suspended license that was as
much as three years old was too stale to justify an investigatory stop); see also
State v. Wade,
673 So. 2d 906, 907 (Fla. 3d DCA 1996) (holding that a police
officer’s information about a suspended license from about eleven days prior to the
arrest was not stale).1
Next, the State asserts that the officer’s attempted stop was justified because
W.B. was not wearing protective eyewear, as required by section 316.211(2) of the
Florida Statutes. This statute requires motorcycle operators to wear an eye-
protective device approved by Florida’s Department of Highway Safety and Motor
Vehicles. Section 316.211(3)(a) exempts from the requirement of protective
1The State concedes that, at the time of the stop, the officer was unaware that
W.B.’s driver’s license was suspended.
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eyewear those operators who are at least sixteen and who are operating
motorcycles either powered by motors smaller than fifty cubic centimeters or rated
not in excess of two brake horsepower. § 316.211(3)(a) (2014). The State failed to
produce any evidence that the scooter W.B. was operating was not covered by the
exemption. Also, just as the stop was not justified based on the officer’s stale belief
that W.B. was not sixteen, the officer’s related belief that W.B. was not exempted
from protective eyewear was stale, as well.
In light of the foregoing, we conclude that the State failed to meet its
evidentiary burden that the officer had a reasonable suspicion to stop W.B.2
Reversed.
2 At oral argument, the State properly conceded that it could not rely on the “good
faith” exception to the exclusionary rule of evidence to justify the stop in this case.
See, e.g., Stone v. State,
856 So. 2d 1109, 1113 (Fla. 4th DCA 2003). Thus, the
State failed to establish an essential element of the crime of resisting arrest without
violence – that the police officer was engaged in the lawful execution of a legal
duty when he attempted to stop W.B.
Jay, 731 So. 2d at 775.
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