You Can't Be Convicted of Resisting an Unlawful Arrest. Here's Why.
Resisting an Officer Without Violence is one of the most common "add-on" charges in Florida. Police often tack it onto arrests when someone doesn't immediately comply. But here's what many people don't realize: if the underlying arrest was unlawful, you cannot be convicted of resisting it.
The Statute: F.S. 843.02
Florida's resisting without violence statute requires that the officer be acting in the "lawful execution of any legal duty":
"Whoever shall resist, obstruct, or oppose any officer... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree."
This means the State must prove three things:
- The officer was engaged in a legal duty
- The officer was executing that duty lawfully
- The defendant resisted, obstructed, or opposed that lawful execution
If the arrest itself was unlawful, element #2 fails - and so does the entire case.
The Key Cases
C.E.L. v. State (Florida Supreme Court)
In C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), the Florida Supreme Court confirmed:
"One of the elements of Resisting an Officer Without Violence is that the officer whose order was not heeded was acting in the lawful performance of his duties."
Phillips v. State - Unlawful Arrest Defense
Phillips v. State, 314 So. 2d 619 (Fla. 4th DCA 1975), established:
"A defense to the charge of resisting arrest, when the accusation is that the defendant was resisting a warrantless arrest, is that the arrest was not lawful."
Royster v. State - No Good Faith Exception
This is the critical case. In Royster v. State, 643 So. 2d 61 (Fla. 1st DCA 1994), the court held:
"There is no 'good faith' exception - a police officer's opinion regarding the propriety of the arrest is irrelevant in a prosecution for resisting arrest without violence."
This prevents police from bootstrapping unlawful arrests. Even if the officer genuinely believed the arrest was lawful, if it wasn't, the resisting charge fails.
What Makes an Arrest Unlawful?
For a warrantless arrest to be lawful, the officer generally must have:
| Requirement | Description |
|---|---|
| Probable Cause | Reasonable belief that a crime was committed and this person committed it |
| Presence Requirement | For misdemeanors, offense must occur in officer's presence (with exceptions) |
| Exigent Circumstances | If applicable, genuine emergency justifying warrantless action |
Common Unlawful Arrest Scenarios
- Arrest for "attitude" - Being disrespectful to police is not a crime
- No probable cause - Mere suspicion is insufficient
- Misdemeanor not in presence - Officer didn't witness the offense
- Arrest after illegal stop - Fruit of the poisonous tree
- Arrest for protected speech - First Amendment activity is not criminal
- Contempt of cop - Filming police or asserting rights is not resistance
Why "No Good Faith Exception" Matters
Without Royster's rule, police could create a catch-22:
- Officer makes unlawful arrest (no probable cause)
- Defendant objects or pulls away
- Officer charges resisting arrest
- State argues "officer thought it was lawful"
- Defendant convicted despite police misconduct
The no-good-faith rule prevents this circular logic. The test is objective - was there actual legal authority? - not subjective - did the officer think there was?
What Constitutes "Resisting"?
Even when an arrest IS lawful, not every response constitutes resistance:
IS Resisting
- Running away from officer
- Pulling arm away during arrest
- Physical obstruction
Is NOT Resisting
- Verbal objection only
- Asking questions
- Asserting your rights
- Requesting a supervisor
- Stating you don't consent
Defense Strategy
If you're charged with resisting arrest, here's how to challenge it:
- Challenge the underlying arrest. File a motion examining whether there was probable cause. No lawful arrest = no resisting charge.
- File motion to dismiss. Cite C.E.L. (element requirement), Phillips (unlawful arrest defense), and Royster (no good faith exception).
- Cross-examine on basis for arrest. What was the probable cause? What crime did the officer believe was committed?
- Request proper jury instruction. Jury must be instructed that "lawful execution of duty" is an element.
The Constitutional Dimension
The unlawful arrest defense ties into Fourth Amendment protections. If police seized you without probable cause, that's an unconstitutional seizure. Evidence from that seizure can be suppressed, and you cannot be convicted of resisting an unconstitutional act.
This is especially relevant when:
- Arrest was based on protected speech
- Arrest was based on filming police
- Arrest was retaliation for asserting rights
Charged with Resisting Arrest?
The charge may fail if the arrest itself was unlawful. The officer's "good faith" belief is not a defense. Call now for a case evaluation on whether your resisting charge can be dismissed.
Sources
- C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009)
- Phillips v. State, 314 So. 2d 619 (Fla. 4th DCA 1975)
- Royster v. State, 643 So. 2d 61 (Fla. 1st DCA 1994)
- F.S. 843.02 - Resisting Officer Without Violence
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Need Legal Help?
If you're facing criminal charges in Central Florida, an experienced defense attorney can make the difference. Get a free consultation to discuss your case.
Contact Lotter Law at 407-500-7000 for a free consultation.
Jeff Lotter
Criminal Defense Attorney | Former State Trooper
Jeff Lotter is an Orlando criminal defense attorney and former Florida Highway Patrol trooper. He uses his law enforcement background to build stronger defenses for clients facing criminal charges.