Navigating the Boundaries of Private Citizen’s Arrests in Florida: Analyzing Search and Seizure Law

As a board-certified criminal trial lawyer, I closely monitor appellate decisions that shape the contours of search and seizure law, police authority, and individual constitutional rights in Florida. The Fifth District Court of Appeal’s recent ruling in Christien Ryan Jeffries v. State, Case No. 5D2024-1721 (July 31, 2026), serves as a critical reminder of the strict limitations placed on off-duty law enforcement officers acting outside their territorial jurisdiction.

When an officer steps outside their geographic boundaries, their arrest powers are generally coextensive with those of a private citizen. Understanding the exact legal thresholds required for a citizen’s arrest—and the strict rules governing the abandonment of evidence—is vital for anyone navigating the criminal justice system.

Understanding the Legal Framework: Jurisdiction and Citizen’s Arrests

Under Florida law, a law enforcement officer acting outside of their geographic jurisdiction generally possesses only the same arrest powers as a private citizen. For a private citizen’s arrest to be lawful, the arresting individual must observe the commission of a felony or a breach of the peace committed in their presence.

In Jeffries, the State conceded that there was no evidence of a felony observed by the off-duty officer, Larry Sapp, who was a school district police officer residing in a different county. Instead, the State hinged its argument on the contention that the appellant’s actions constituted a “breach of the peace” under section 877.03, Florida Statutes.

Defining “Breach of the Peace” Under Florida Law

Section 877.03, Florida Statutes, defines disorderly conduct and breaches of the peace narrowly. Florida courts have consistently held that the statute targets conduct that goes far beyond a mere annoyance or unusual behavior. Acts constituting a breach of the peace typically involve brawling, fighting, or conduct that clearly and significantly endangers public safety—such as erratic driving indicative of driving under the influence.

In Jeffries, the appellate court evaluated the series of actions cited by the State to justify the citizen’s arrest:

• Patrol Car Marks: Fingerprints and smudges found on the officer’s patrol car could not justify the arrest because they were photographed after the arrest, and the officer did not observe the appellant touching the vehicle.
• Leaving the Property: The appellant walking away from the officer’s yard, even if appearing “delirious,” did not amount to a breach of the peace.
• Entering a Neighbor’s Yard: Passing through an open gate into a neighbor’s backyard failed to meet the high threshold required to establish a breach of the peace.
• Public Intoxication: Mere apparent intoxication in public, absent dangerous actions endangering the public (such as operating a motor vehicle while intoxicated), does not constitute a breach of the peace.
• Approaching an Elderly Resident: An off-hand report that the appellant approached an elderly woman in an apartment complex common area without making any threats or raising his voice did not constitute disorderly conduct or a breach of the peace.

Because none of the observed conduct met the strict statutory definition of a breach of the peace, the Fifth District Court of Appeal concluded that the citizen’s arrest lacked any lawful basis.

Voluntary Versus Involuntary Abandonment of Evidence

A secondary, yet equally significant, issue in Jeffries involved whether the seizure of an electric stun gun from the appellant’s person was lawful as a search incident to arrest. The trial court had upheld the search based on the discovery of a discarded pill bottle containing narcotics in the area where the officer claimed the appellant threw an object.

Under Fourth Amendment jurisprudence, whether contraband discarded during an encounter with law enforcement can be used by police depends entirely on whether the abandonment was voluntary or involuntary.

• Voluntary Abandonment: Occurs when a person abandons property before being seized or while fleeing from a show of authority without submitting.
• Involuntary Abandonment: Occurs when a person discards items after they have been unlawfully stopped or after they have yielded and submitted to a show of authority.

In Jeffries, the court noted that the appellant had stopped and turned toward the officer upon command, thereby submitting to authority before discarding the pill bottle. Aligning with precedent such as Lang v. State, the appellate court ruled that the abandonment of the pill bottle was involuntary because the appellant had already complied with the officer’s directive to stop. Consequently, the subsequent search of the appellant’s person yielding the stun gun was tainted, leading the court to vacate the conviction for possession of an electric weapon by a convicted felon.

Comparative Overview of Search and Seizure Issues

To better understand how appellate courts evaluate these encounters, consider the following structural breakdown of legal standards applied in citizen’s arrest and abandonment cases:

Frequently Asked Questions

Conclusion and Next Steps

The decision in Jeffries reinforces the principle that constitutional protections against unreasonable searches and seizures remain robust, even when encounters involve off-duty personnel. If you or a loved one are facing criminal charges in Florida and need experienced trial or appellate guidance, visit my contact page at Central Law Contact or learn more about my background on my bio page at W.F. “Casey” Ebsary Jr. Bio. You can also explore additional legal resources directly at Central Law.

Full Text of Opinion: Christien Ryan Jeffries v. State

FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA

Case No. 5D2024-1721

LT Case No. 2023-CF-000516

CHRISTIEN RYAN JEFFRIES, Appellant,

v.

STATE OF FLORIDA, Appellee.

On appeal from the Circuit Court for Putnam County.

Alicia R. Washington, Judge.

Matthew J. Metz, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Tabitha Mills, Assistant Attorney General, Daytona Beach, for Appellee.

July 31, 2026

WALLIS, J.

In this direct appeal, Appellant challenges the denial of his motion to suppress evidence obtained as a result of a citizen’s arrest. Appellant properly reserved the right to seek review of the denial of the trial court’s dispositive order on the motion. Because we find that the citizen’s arrest was without lawful basis, we reverse the trial court’s order denying the motion to suppress,

vacate Appellant’s judgment and sentence as to the count of possession of an electric weapon by a convicted felon, and remand the case to the trial court for further proceedings in accordance with this opinion.

Facts and procedural history

Larry Sapp, an off-duty police officer residing in a county outside his jurisdiction, performed a private citizen’s arrest on Appellant, leading to the discovery of an electric stun gun on Appellant’s person, among other items seized by responding police. Appellant’s counsel filed a motion to suppress this evidence but at the outset of the motion hearing, chose to limit the motion to the charge involving the stun gun only. At the hearing, Sapp, a Clay County School District police officer, testified that he was at his residence in Putnam County when his daughter came in and stated, without providing specific details, that someone had been trying to break into his patrol car. Sapp went outside and saw Appellant already exiting Sapp’s property. Sapp pursued Appellant, identifying himself as law enforcement and ordering Appellant to stop, but Appellant did not do so. Sapp testified that Appellant appeared “delirious” and “like he didn’t know whose house he was at.” Appellant proceeded into Sapp’s neighbor’s yard, through the open privacy gate, and into the neighbor’s backyard. Sapp did not follow Appellant into the backyard but instead rang the neighbor’s doorbell, but no one was at home. Sapp testified that he believed the neighbor had a fence in the backyard of perhaps four feet in height, and he was not aware of any gates back there. Sapp got in his personal vehicle along with another individual and drove down the road behind the neighbor’s house. He spotted Appellant near an apartment complex. Sapp got out of the truck, again identified himself as a law enforcement officer, and ordered Appellant to stop. Sapp testified that even though he was acting outside his jurisdiction, he did not identify himself as a private citizen, as most people would not stop if ordered to do so by a private citizen.

Appellant stopped this time and turned towards Sapp. As Sapp approached Appellant, he saw Appellant reach down in his pockets and make a “throwing motion,” and something came out of Appellant’s hand. Sapp physically restrained Appellant and effected an arrest. Sapp said that at the apartment complex, Appellant was breathing “a little bit rapid” and was sweating, so Sapp believed Appellant was under the influence of something. Sapp said that Appellant kept telling him that he was trying to visit someone at the apartment complex, but a lady who lived there informed him that no such person resided there.

Officer Felbinger responded to the call to police and arrested Appellant based on a discussion with Sapp and the fact that Sapp was a law enforcement officer. Felbinger then found a discarded pill bottle containing various narcotics in the area where Sapp reported the object was thrown. Felbinger searched Appellant’s person and found the stun gun. Appellant was charged with multiple counts of possession of controlled substances and one count of possession of an electric weapon or device by a convicted felon. Felbinger explained that he did not arrest Appellant for trespassing as there was no existing trespass warning for Sapp’s property; however, Felbinger issued a trespass warning to Appellant that day.

At the motion hearing, Felbinger testified that Sapp also told him at the time that he had seen Appellant approaching an elderly woman at the apartment complex, and the woman insisted she did not know Appellant. Felbinger testified that there was no indication of verbal or physical threats made to this woman by Appellant, but rather Sapp was concerned about her because she was elderly and less able to defend herself if need be. Felbinger included this information from Sapp in his police report.

The trial court denied the motion to suppress. The court indicated orally at the motion hearing that it believed that Sapp conducted a lawful citizens’ arrest and also that it believed that the stun gun was lawfully seized as part of a search incident to arrest on the possession charges. However, the trial court’s written ruling on the motion to suppress only explicitly stated that the motion was denied because the stun gun was seized as part of a lawful search incident to arrest. Appellant properly reserved the right to seek review of this issue on appeal, and the trial court found the issue dispositive.

Analysis

Review of a trial court’s ruling on a motion to suppress follows a mixed standard, with findings of fact being reviewed for competent, substantial evidence and conclusions of law being reviewed de novo. Ross v. State, 45 So. 3d 403, 414 (Fla. 2010).

A law enforcement officer acting outside of his geographic limits generally has the same arrest powers as a private citizen. State v. Torres, 350 So. 3d 421, 424 (Fla. 5th DCA 2022) (citing Phoenix v. State, 455 So. 2d 1024, 1025 (Fla. 1984)). A private citizen may perform an arrest if an individual has committed a felony or a breach of the peace in the private citizen’s presence. Johnson v. Barnes & Noble Booksellers, Inc., 437 F.3d 1112, 1116 (11th Cir. 2006) (citing Steiner v. State, 690 So. 2d 706, 708 (Fla. 4th DCA 1997)); Torres, 350 So. 3d at 424.

The State acknowledges in its answer brief that there was no evidence that Sapp observed a felony that day. The State argues instead that Appellant’s actions constituted a breach of the peace.

Section 877.03, Florida Statutes, defines breach of the peace as follows:

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(emphasis added). The definition in this statute is to be interpreted narrowly. Johnson, 437 F.3d at 1116 (citing State v. Saunders, 339 So. 2d 641, 643 (Fla. 1976)). Conduct that does not amount to more than a creation of a mere annoyance does not constitute a breach of the peace. See Saunders, 339 So. 2d at 642 (affirming trial court’s dismissal of charges after finding no probable cause to arrest for breach of the peace where defendant was selling newspapers on a street corner, confronting people, and appearing to hassle them); Gonzales v. City of Belle Glade, 287 So. 2d 669, 670 (Fla. 1973) (reversing convictions under section 877.03, Florida Statutes, where the defendants participated in a protest march, made threatening comments to officers but did not touch them, and expressed vocal dissatisfaction with restaurant service).

The State relied below and also relies on appeal on a series of actions attributed to Appellant to argue that he committed breach of the peace justifying a citizen’s arrest: 1) fingerprints and smudges on Sapp’s patrol car; 2) Appellant exiting Sapp’s property as Sapp came out of his house; 3) Appellant entering the neighbor’s property and backyard through the gate; 4) Appellant appearing to be under the influence of a substance when he was found near the apartment complex; and 5) Appellant having approached an elderly woman at the apartment complex while indicating that he was there to see someone.

First, the fingerprints and smudges that Sapp later photographed on his patrol car cannot be relied upon to justify the citizen’s arrest. At the motion hearing, Sapp identified these marks that he photographed on the front end and passenger side mirror of his patrol car. However, these photographs were taken after Appellant’s arrest, and it is clear from Sapp’s testimony that he did not examine his patrol car before pursuing Appellant. In any event, Sapp did not personally observe Appellant trying to break into his patrol car, and therefore there was no justification here for the citizen’s arrest. Likewise, his daughter’s informing him that someone had been trying to break into the car was not personal observation to support the citizen’s arrest.

Second, Sapp testified that when he exited his home, he saw Appellant already leaving his yard to enter his neighbor’s yard. Sapp testified that Appellant seemed “delirious.” However, Appellant made no difficulty about leaving, and in fact, was already leaving when Sapp saw him. Felbinger testified that this conduct could have resulted in no more than the trespass warning which Felbinger later delivered to Appellant.

Third, Sapp testified that Appellant entered the neighbor’s yard and went into the backyard through the open privacy gate as Sapp was pursuing him. While Appellant appeared intoxicated to Sapp at this time, this too did not rise to the level of breach of the peace. Florida case law finding that behavior surrounding intoxication constituted breach of the peace has consistently included conduct that clearly and significantly endangers the public, particularly conduct involving the apparent use of a motor vehicle while intoxicated. See, e.g., Mattos v. State, 199 So. 3d 416, 418, 420 (Fla. 4th DCA 2016) (finding that conduct constituted breach of the peace where defendant was found passed out and appearing intoxicated in the driver’s seat of a vehicle smelling of alcohol and idling in the middle lane of three lanes of traffic); State v. Price, 74 So. 3d 528, 529-531 (Fla. 2d DCA 2011) (finding that conduct constituted breach of the peace where defendant’s car made a wide turn, drifted off the white line, sped up and slowed down repeatedly, drifted between lanes, and caused the driver of a semi-truck to take evasive actions and blow his horn); State v. Furr, 723 So. 2d 842, 843-845 (Fla. 1st DCA 1998) (finding that conduct constituted breach of the peace where defendant’s truck crossed the center dividing line four or five times and where defendant’s “behavior and demeanor immediately signaled his state of intoxication”); Edwards v. State, 462 So. 2d 581, 582-83 (Fla. 4th DCA 1985) (finding that conduct constituted breach of the peace where defendant’s truck was observed crossing the center line multiple times over several miles, causing other drivers to run onto the berm, and where defendant’s truck came close to hitting a bridge abutment). Appellant’s conduct is distinguishable from this case precedent in that his behavior is devoid of actions that amount to an alleged offense of driving under the influence or other actions endangering the public.

Fourth, Sapp testified that Appellant appeared to be under the influence of a substance when Sapp found him again near the apartment complex. For the same reasons as above, mere apparent intoxication in public does not constitute a breach of the peace.

Fifth, Felbinger testified that Sapp told him that Appellant had approached an elderly woman in the apartment complex common area and that the woman insisted that she did not know Appellant. Felbinger testified that Sapp did not report any threats made to the woman but that Sapp seemed concerned about the woman because of her decreased physical capacity to defend herself should she be threatened. We need not reach the issue of whether Sapp’s failure to testify about these observations himself is legally significant, as Appellant’s conduct here as reported second-hand also does not constitute breach of the peace. This case is distinguishable, for example, from Oxyde v. State, 417 So. 3d 350, 352-55 (Fla. 4th DCA 2025), in which the Fourth District affirmed a conviction for disorderly conduct under section 877.03, Florida Statutes, where the defendant stood outside a locked apartment building late at night where his estranged wife resided yelling profanities at her and other residents, later followed a resident inside, loudly pounded on his wife’s unit door yelling profanities, and refused to leave when residents confronted him. In the instant case, it was the middle of the day, and Felbinger did not report that Appellant threatened the elderly woman or even raised his voice.

For all of the above reasons, the conduct Sapp observed did not constitute breach of the peace.

We also write to address the trial court’s finding that the seizure of the stun gun in a search of Appellant’s person was protected due to a lawful search incident to arrest. We surmise that the trial court based this finding on Felbinger’s discovery of the pill bottle in the area where Sapp told him Appellant had thrown it. Because we find that Appellant’s abandonment of the pill bottle was involuntary, Felbinger’s discovery of the stun gun is not shielded from Fourth Amendment protections as a search incident to arrest.

Whether Fourth Amendment protections extend to contraband thrown during an arrest turns on whether the abandonment was voluntary or involuntary, which in turn depends on whether the arrestee was seized or not at the time of the abandonment. “A person who flees from a show of authority has not been seized, while a person who remains in place and submissive to the show of authority has been seized.” Hollinger v. State, 620 So. 2d 1242, 1243 (Fla. 1993); see also California v. Hodari D., 499 U.S. 621, 626-29 (1991). “An unlawful seizure only takes place if the person either willingly obeys or is physically forced to obey the police request, i.e. there is no unlawful seizure when the person ‘drops then stops,’ even where the drop occurs after an order to stop.” Johnson v. State, 640 So. 2d 136, 138 (Fla. 4th DCA 1994).

In Lang v. State, 671 So. 2d 292, 293 (Fla. 5th DCA 1996), this Court examined a case where Lang was unlawfully stopped by police while on foot. The deputy pulled his patrol car behind Lang and began getting out of it, when Lang put his hand in his pocket. Id. The deputy instructed Lang to step over to his patrol vehicle, and Lang began doing so. Id. The deputy asked Lang to take his hand out of his pocket, and when Lang did so, Lang threw a pill bottle away. Id. This Court held that Lang had “reasonably concluded he was not free to leave” and had commenced complying with the deputy’s instructions when he dropped the pill bottle. Id. at 294. Therefore, the abandonment of the pill bottle was not voluntary. Id. (citing Hodari D., 499 U.S. at 626–29).

By contrast, in State v. Canada, 715 So. 2d 1164, 1164–1165 (Fla. 5th DCA 1998), this Court found a voluntary abandonment of contraband where Canada was seated holding a concealed object when police approached him, did not yield to the police request to reveal what he had in his hand, and instead abandoned the object and attempted to flee.

Here, Sapp testified that he ordered Appellant to stop when he found Appellant again near the apartment complex as Sapp was exiting his truck. Appellant stopped and turned towards Sapp and threw an object to the ground. Sapp testified that Appellant threw the object as Sapp was going towards him to arrest him. Sapp then physically restrained Appellant.

Applying the above case law, Appellant had already complied with Sapp’s order to stop by stopping and turning towards him. Sapp was in the process of moving to Appellant to arrest him when Appellant threw the pill bottle. It is also noteworthy that Appellant stopped for Sapp for the first time here, whereas he continued to walk away from Sapp earlier when Sapp first saw him in Sapp’s neighborhood. Thus, Appellant had already complied with Sapp’s order to stop when Appellant threw the pill bottle. These facts align with Lang and are distinguishable from Canada. The abandonment of the pill bottle was involuntary. Thus, the discovery of the stun gun on Appellant’s person was not part of a lawful search incident to arrest based on the seizure of the pill bottle.

Therefore, because we find that Sapp did not have authority to conduct a citizen’s arrest of Appellant and because the stun gun was not seized from Appellant’s person as part of a lawful search incident to arrest, we reverse the trial court’s order denying the motion to suppress, vacate Appellant’s conviction for possession of an electric weapon or device by a convicted felon, and remand the case to the trial court for further proceedings in accordance with this opinion.

REVERSED in part, VACATED in part, and REMANDED with instructions.

JAY, C.J., and MAKAR, JJ., concur.

In the state of Florida, Disorderly Conduct, also known as Breach of the Peace, is a criminal offense defined under § 877.03 of the Florida Statutes. To secure a conviction for this offense, the State must establish the following elements beyond a reasonable doubt, which vary based on the specifics of the case: (Defendant) committed an act or acts that (a) was (b) were of a nature that corrupted the public morals; or (c) outraged the sense of public decency; or (d) affected the peace and quiet of persons who witnessed the act or acts; or (e) engaged in brawling or fighting.

Iconic Disorderly Conduct Arrests Video

The flexibility of these elements allows for a broad range of behaviors to be considered Disorderly Conduct, ensuring that the law can be applied in various situations where public order and safety are threatened. It encompasses actions that disturb the peace, challenge public decency, or result in public disturbances through brawling or fighting.

Disorderly Conduct cases in Florida can lead to convictions that carry legal consequences, making it essential for both defendants and legal professionals to understand the intricacies of the law. There are some critical aspects and considerations related to Disorderly Conduct in Florida:

1. Constitutional Concerns:

The Disorderly Conduct statute in Florida can raise constitutional concerns, particularly when individuals claim that their actions constitute protected speech. In such cases, it may be necessary to provide a special instruction to the jury to ensure that individuals are not convicted for exercising their constitutional rights. This ensures that freedom of expression is upheld while still maintaining public order and safety, as established by the law. The case of Chandler v. State in 1999 highlighted the importance of this balance.

2. Self-Defense:

Defendants charged with Disorderly Conduct may have the option to assert self-defense as a legal defense, especially if they did not initiate a fight and acted to protect themselves from an attacker. This legal precedent was established in the case of S.D.G. v. State in 2006, where it was recognized that individuals have a right to defend themselves when facing aggression or harm. This provides a way for individuals to justify their actions in situations where they were forced to defend themselves or others.

3. Lesser Included Offense:

In the legal framework of Disorderly Conduct in Florida, there are no lesser included offenses defined in Category One or Category Two, as indicated by FLA. STAT. INS. NO. None. This means that the charges are relatively straightforward and do not have lesser offenses that can be used as alternatives.

Recent Changes:

It’s important to note that the current instruction for Disorderly Conduct in Florida was adopted in 2018, indicating the relevance and importance of keeping up with legal updates and changes in the law to ensure accurate legal representation.

In summary, Disorderly Conduct in Florida, as defined under § 877.03 of the Florida Statutes, encompasses a wide range of behaviors that disturb public peace, decency, and safety. While constitutional concerns and the potential for self-defense as a defense strategy are notable aspects, it’s crucial for individuals facing these charges and legal professionals to stay informed about any changes in the law to ensure a thorough understanding and effective representation in court.

Jury Instruction for Disorderly Conduct

29.5 [DISORDERLY CONDUCT] [BREACH OF THE PEACE]
§ 877.03, Fla. Stat.

To prove the crime of [Disorderly Conduct] [Breach of the Peace], the State must prove the following element beyond a reasonable doubt:

(Defendant)

Give a–d as applicable.

a) committed an act or acts that [was] [were] of a nature that corrupted the public morals; [or]

b) outraged the sense of public decency; [or].

c) affected the peace and quiet of persons who witnessed the act or acts; [or]

d) engaged in [brawling or fighting].

Comments

The statute often raises constitutional concerns. When a defendant claims that his or her conduct constituted protected speech, a special instruction will likely be necessary to ensure the jury does not convict a person for exercising a constitutional right. See Chandler v. State, 744 So. 2d 1058 (Fla. 4th DCA 1999).

A defendant who does not initiate a fight and acts to protect himself from the attacker may assert self-defense to the charge of Disorderly Conduct. S.D.G. v. State, 919 So. 2d 704, 705 (Fla. 5th DCA 2006).

This instruction was adopted in 2018.

Text of Chandler v State

CHANDLER v. STATE (1999)
District Court of Appeal of Florida,Fourth District.
Donna R. CHANDLER, Appellant, v. STATE of Florida, Appellee.

Nos. 98-3248, 98-3315.
Decided: September 17, 1999

Richard L. Jorandby, Public Defender, and Steven H. Malone, Assistant Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

Donna R. Chandler appeals her conviction for disorderly conduct, challenging the sufficiency of the evidence and the trial court’s refusal to permit defense counsel to question the venire and to instruct the jury regarding the First Amendment protections afforded her speech. We reject Chandler’s contention that she was entitled to a judgment of acquittal with respect to the disorderly conduct charge, but find merit in her other claims and reverse.

During the proceedings below, Donna Chandler was charged with battery of a law enforcement officer and disorderly conduct. These charges stemmed from Chandler’s alleged reaction to the arrest of her sister, Carmen Chandler, on February 26, 1998, at the Government Center in Palm Beach County. Viewing the evidence in the light most favorable to the State, when officers attempted to arrest Carmen Chandler a struggle ensued and both Carmen Chandler and Detective Griffin, the arresting officer, wound up on the floor. According to Griffin, while on the floor struggling with Carmen, he heard a scream and the pounding of feet coming from behind him. He looked up and saw Donna Chandler running toward him. Before Donna Chandler could reach Griffin and her sister, however, another officer, Deputy Samuel, intercepted her. Samuel testified that, although he ordered Donna Chandler to stop, she continued toward him and, ultimately, crashed into him. According to Samuel, he ordered Donna Chandler to back away, but, despite his instructions, she continued flailing, struggling, and kicking in an attempt to get around him. During this physical struggle, Samuel testified that Chandler continued to scream and to shout things like “you’re not taking my sister” and “you don’t have a warrant.” The State also put on evidence that Chandler’s actions created a ruckus which was disruptive to the offices of the clerk of court. A jury found Chandler not guilty of battery of a law enforcement officer, but guilty of disorderly conduct. Chandler appeals that conviction.

Disorderly Conduct & Speech

The verbal conduct which can support a conviction for disorderly conduct pursuant to Florida Statutes section 877.03 has been severely curtailed by the Florida Supreme Court in order to prevent the statute from being found unconstitutionally over broad. In fact, following the supreme court’s opinion in State v. Saunders, 339 So.2d 641, 644 (Fla.1976), there are only two instances where words can amount to disorderly conduct: “fighting words” and “words like shouts of ‘fire’ in a crowded theatre.”

[W]e now limit the application of Section 877.03 so that it shall hereafter only apply either to words which “by their very utterance ․ inflict injury or tend to incite an immediate breach of the peace,” or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others. We construe the statute so that no words except “fighting words” or words like shouts of “fire” in a crowded theatre fall within its proscription, in order to avoid the constitutional problem of overbreadth, and “the danger that a citizen will be punished as a criminal for exercising his right of free speech.” With these two exceptions, Section 877.03 should not be read to proscribe the use of language in any fashion whatsoever. To this extent, we modify our previous decisions construing the statute.

Id. (emphasis added) (citations and footnote omitted).

Requested Jury Instruction

Returning to the case presently before this court, defense counsel sought to have the following special instruction read to the jury:

However, verbal conduct is protected by the First Amendment. Mere words cannot amount to disorderly conduct unless they are fighting words or words, known to be false, reporting some physical hazard where such a report creates a clear and present danger of bodily harm to others, such as shouting “fire” in a crowded theater.

“Fighting words” are those which are likely to cause the average person to whom they are addressed to fight.

If in your consideration of the issue of protected speech you have a reasonable doubt on the question of whether or not the defendant did nothing more than what is protected by the First Amendment, you must find the defendant not guilty.

However, if from the evidence you are convinced beyond a reasonable doubt that the defendant did more than what is protected by the First Amendment, you should find her guilty if all the elements of the charge have been proved.

The State objected and the trial court refused to read the instruction. “Trial judges have wide discretion in decisions regarding jury instructions, and the appellate courts will not reverse a decision regarding an instruction in the absence of a prejudicial error that would result in a miscarriage of justice.” Lewis v. State, 693 So.2d 1055, 1058 (Fla. 4th DCA), review denied, 700 So.2d 686 (Fla.1997). In the context of criminal cases, appellate courts have reviewed the trial court’s refusal to give a requested jury instruction to determine “whether there was a reasonable possibility that the jury could have been misled by the failure to give that instruction.” Cronin v. State, 470 So.2d 802, 804 (Fla. 4th DCA 1985); see also Bowen v. State, 655 So.2d 1208 (Fla. 4th DCA 1995). We find that such a possibility exists in the instant case.

With respect to the disorderly conduct charge, the jury was instructed only as follows:

Before you can find the defendant guilty of disorderly conduct, the State must prove the following two elements beyond a reasonable [doubt], number one, that Donna R. Chandler committed an act; and two, the nature of that act was to affect the peace and quiet of persons who may witness them, or engaged in brawling or fighting, or engaged in such conduct as to constitute a breach of the peace.

This instruction allows for the possibility that the jury convicted Chandler of disorderly conduct based solely on her screaming and shouting and the disruption which it apparently caused to some workers in the Government Center-a result clearly contrary to the dictates of Saunders, which holds that words can form the basis for a disorderly conduct conviction only where they are “fighting words” or “false [words] reporting some physical hazard.” See Saunders, 339 So.2d at 644. Simply yelling and screaming is insufficient. See, e.g., T.S.S. v. State, 696 So.2d 820, 820 (Fla. 2d DCA 1997)(holding that trial judge erred in failing to grant a m otion for judgment of acquittal on disorderly conduct charge where deputy testified that, although he could not hear what either T.S.S. or T.J. was saying in particular, they were “hoot[ing] and holler[ing] and carry[ing] on and scream[ing] at us” and did not testify that the boys said anything to incite the others at the party, which was being held behind an apartment building); L.A.T. v. State, 650 So.2d 214, 215 (Fla. 3d DCA 1995)(holding that defendant’s shouting in a Publix supermarket “Is everybody watching this, police brutality, ․ Rodney King style” and screaming and cursing at the top of his lungs was insufficient to support a conviction for disorderly conduct).

Voir Dire

Earlier in the trial, during voir dire, defense counsel attempted to question the jury regarding the First Amendment and the charge of disorderly conduct. Specifically, the following colloquy occurred:

Defense: Ms. Casserino, you know that Donna Chandler’s also accused of disorderly conduct. How do you feel about where words are the basis for disorderly conduct, do you-

State: Objection.

Court: Let me hear the question first, please.

Defense: Where words are alleged to be the basis for the disorderly conduct-you know, we all have a First Amendment right to speak. In fact, we can say very disturbing and upsetting things. If you hear that evidence that-what Ms. Chandler said was protected by the First Amendment, is that something that you would take into consideration?

State: Objection.

Court: Sustained. Counsel, move on to another line, please.

Chandler contends that it was error for the trial court to refusal to permit her lawyer to inquire of the jury regarding First Amendment protections. We agree.

[A] meaningful voir dire is critical to effectuating an accused’s constitutionally guaranteed right to a fair and impartial jury․ What is a meaningful voir dire which will satisfy the constitutional imperative of a fair and impartial jury depends on the issues in the case to be tried․ Thus, where a juror’s attitude about a particular legal doctrine (in the words of the trial court, “the law”) is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of the voir dire properly includes questions about and references to that legal doctrine even if stated in the form of hypothetical questions.

Lavado v. State, 469 So.2d 917, 919-20 (Fla. 3d DCA 1985) (Pearson, J., dissenting), quashed, 492 So.2d 1322 (Fla.1986)(adopting Judge Pearson’s dissent as the majority opinion of the supreme court). Here, the disorderly conduct charge was founded upon both Chandler’s act of screaming and shouting in a place of government business and her physical contact and struggle with police in a place of government business, and both theories were argued to the jury. Because Chandler’s words formed a basis for the disorderly conduct charge, First Amendment protections and limitations were relevant. Although defense counsel’s questions could have been more artfully crafted to avoid any claim that defense counsel was attempting to “pre-try” the factual issues in the case, defense counsel should have been permitted to inquire of the venire to ascertain whether potential jury members could, and would, apply the law regarding this issue if instructed to do so by the trial judge.

Conclusion

In sum, in light of the fact that defense counsel was denied the opportunity to question the venire regarding the First Amendment protections afforded speech and the possibility that, as instructed, the jury may have convicted Chandler of disorderly conduct based solely on her screaming and shouting, we reverse and remand for a new trial on count II, the disorderly conduct charge.

REVERSED and REMANDED.

STEVENSON, J.

WARNER, C.J., and KREEGER, JUDITH L., Associate Judge, concur.

Full Text of SDG v State

S.D.G. v. State

Opinion
No. 5D05-2156.

February 3, 2006.

Appeal from the Circuit Court, Flagler County, Sharon Atack, J.

James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

S.D.G. timely appeals from an adjudication of delinquency that was withheld for the charge of disorderly conduct. Appellant contends that the trial court erred in rejecting her defense of self-defense. We agree and reverse.

While adjudication of delinquency on the charge of disorderly conduct against Appellant was withheld and while Appellant has most likely already completed her sentence of six months of probation, the order appealed is reviewable pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(B).

At trial, the State called only one witness, Officer John C. Murray, who had responded to a reported fight on January 8, 2005. Upon his arrival, Officer Murray observed a large crowd disbursing from the area where a fight had presumably taken place. When another altercation started outside of his view, Officer Murray moved toward the noise and found Appellant and another juvenile “locked together . . . grabbing hold of each other and fighting.” The officer instructed the two to separate “several times” to no avail. When his partner “tasered” the other juvenile, Appellant then immediately backed away.

The only other witnesses were called by the defense. These two witnesses testified that the other juvenile attacked the Appellant, who only fought back in self-defense. This testimony was uncontroverted. On this record, Appellant was found delinquent for disorderly conduct.

While section 877.03, Florida Statutes (2005), defines “disorderly conduct” to include “brawling or fighting,” self-defense is a defense to the charge “provided that the person charged did not provoke the fight.” D.M.L. v. State, 773 So.2d 1216, 1217 (Fla. 3d DCA 2000). Where a defendant did not initiate the fight, and was acting to protect herself from her attacker, the defense of self-defense applies. Id.

Once Appellant produced evidence supporting her claim of self-defense, the State was required to prove beyond a reasonable doubt that Appellant’s actions were not taken in self-defense to sustain a finding of guilt. See, e.g., Hernandez Ramos v. State, 496 So.2d 837 (Fla. 2d DCA 1986). Because all of the evidence supported Appellant’s self-defense theory, the State’s proof of guilt was clearly insufficient as a matter of law. D.M.L., 773 So.2d at 1217.

The State attempts to distinguish D.M.L. by arguing that because there was evidence that Appellant and her assailant were exchanging “fighting words” during the altercation, the evidence of her verbal conduct should be sufficient to sustain the finding of guilt. A careful review of the record, however, reveals that the State’s sole witness “couldn’t tell . . . exactly who was hollering.” The only defense witness who was asked, testified that it was Appellant’s assailant who was “yelling” and “screaming.” Therefore, there was no evidence that Appellant created a disturbance with her words.

Even if there was record evidence of “yelling” by Appellant, we would be unwilling to hold that an individual must defend herself silently in order to prevail on a theory of self-defense.

The State also argues that the trial court’s finding is supported by Appellant’s failure to immediately withdraw from the altercation upon Officer Murray’s command. However, it is not clear from the evidence that Appellant heard the command or that she could have safely withdrawn prior to the disabling of her assailant. Therefore, even if the failure to respond to an officer’s command to withdraw from a fight undertaken in self-defense could constitute disorderly conduct under some circumstances, the finding of guilt clearly cannot be sustained on this record.

We reverse and remand with directions to discharge Appellant.

REVERSED and REMANDED.

SHARP, W., and TORPY, JJ., concur.