Names have been changed to protect identities
I was contacted by John who was arrested for Resisting an Officer Without Violence. The story goes as follows: John was standing with a group of friends. Some of them were smoking a cannabis “blunt”. John was not smoking it, in fact he never even touched it. A police officer came up to the group, told the entire group not to move. The officer took the blunt away and started asking everyone questions about it, John refused to answer anything and started walking away. The officer told John he was not free to leave and arrested him for Obstructing Without Violence.
Let’s examine this case. What defenses are available for John? To detain a person for a misdemeanor a police officer must believe that a crime has occurred, is about to occur or is occurring in his presence. An officer who has a suspicion of criminal activity must possess more than a mere “hunch” of criminal activity. The officer must provide a particularized suspicion based on facts he/she has observed as it relates to a specific person or persons. The officer in this case would likely testify that based on his/her training and experience, he/she was able to identify the blunt as a cannabis blunt being passed back and forth and may even testify that based on his/her training and experience there was the odor of cannabis in the air. If the officer gives this testimony, at that point, we could conclude that the officer had a reasonable suspicion to approach the group to conduct an investigation. Possession of cannabis is a crime, and the officer has a duty to investigate such an offense if occurred in his/her presence. The argument becomes, if the officer saw the blunt being passed, and was able to identify it as illegal cannabis blunt, which person or persons did the officer see holding the blunt? Who could the officer legally detain?
To be convicted of the crime of Resisting an Officer Without Violence, the state has to prove that the (1) Police officer was in engaged in the lawful execution of a legal duty and (2) That the action of the defendant constituted obstruction or resistance of the lawful duty. We can conclude that the officer was engaged in the legal duty to investigate the possession of cannabis. What if the officer is not able to specifically identify John as a person who passed the blunt at any time? How can the officer order John to stay on scene? Was John legally free to leave?
I would argue that John was unlawfully detained. If the officer was never able to testify that John possessed the cannabis at any time, it is not possible to charge him with possession of cannabis. If John never possessed the cannabis, what specific particularized suspicion of criminal activity could the officer point to as it relates to John? If the officer cannot say that John broke any law, then John was never legally detained for purposes of the officers’ investigation. John should have been free to leave and go about his way without being unnecessarily and unlawfully detained by police officers. click here for a case cite with similar facts.
Always be respectful when approached by a police officer. John could have avoided an arrest altogether if he just stayed put identified himself and said nothing else. Remember, even fish would not get caught if they kept their mouth shut.
If you are facing any criminal charges in Florida or simply have questions regarding any issues in criminal law, please contact Grant Schwarz at 954-620-8320 and speak to an experienced criminal defense attorney today. Grant Schwarz is available 24 hours a day 7 days a week for a free consultation