LOOKING AT LU JING v. STATE

Case No. 4D21-147 arrived to the three-judge appellate panel of the Fourth District clothed in spy novel mystique: a female Chinese national resisting arrest after allegedly trespassing onto the grounds of United States President Donald Trump’s private Mar-a-Lago resort in Palm Beach. Defendant was convicted of resisting a police officer without violence contrary to Fla. Stat. § 843.02, a misdemeanor, in the Circuit Court, Palm Beach County, and she appealed.

The majority of the District Court of Appeal panel held, over a dissenting opinion, that the officer’s viewing of surveillance footage and photos of defendant trespassing after-the-fact was not sufficient to meet the statutory requirement that arresting officers observe the commission of a misdemeanor offense to make a warrantless arrest.

See Fla. Stat. § 901.15(1) (“A law enforcement officer may arrest a person without a warrant when … [t]he person has committed a …misdemeanor … in the presence of the officer. An arrest for the commission of a misdemeanor or the violation of a municipal or county ordinance shall be made immediately or in fresh pursuit.”). Ms. Lu Jing did not commit any element of the misdemeanor offense in the physical presence of any law enforcement officer. See Lu Jing v State, 316 So. 3d 724, 730 (Fla. 4th DCA 2021) (“To make a warrantless arrest for a misdemeanor, all elements of the offense must occur in the police officer’s presence or have been personally observed by a fellow law enforcement officer.”) (citations omitted). “When an officer watches a video of a misdemeanor that has been committed earlier, the offense is not “committed … in the presence of the officer” as [§ 901.15(1)] requires.”  Id. at 731 (brackets added).

The Court also held that handcuffing defendant and taking her to a police station exceeded the scope of an investigatory detention.

Id. at 732 (where the “detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest requiring either probable cause or prior judicial authorization.”) (citation omitted); see also M.J. v. State, 121 So. 3d 1151, 1154 (Fla. 4th DCA 2013) (stating that to “transport an individual for additional questioning, a law enforcement officer must have probable cause for an arrest”).

Because officers were not engaged in the lawful execution of a legal duty, either when they attempted to handcuff the defendant, or when they performed the unlawful investigatory stop, defendant was entitled to resist being handcuffed by the non-violent act of crossing her arms over her chest. Id. at 730 (“Importantly, a person retains a right [at common law] to resist an unlawful arrest … without force.”) (brackets in original) (citations and quotation marks omitted).