A Loitering and Prowling Primer
It has been this writer’s experience that a clear understanding of Florida’s loitering
and prowling statute, F.S. §856.021,1 is difficult to attain for prosecutors, defense attorneys, and police alike. I believe this is due at least partly to the fact that the language in the statute is vague (perhaps inevitably so), and that it establishes a reliance upon someone else’s subjective judgment (an “alarm” or “concern”) as to whether the crime has been committed. The loitering and prowling statute was held to be constitutional only through a somewhat tortuous reading of the statute by the Florida Supreme Court in State v. Ecker, 311 So. 2d 104 (Fla. 1975).
Thus, it is difficult to determine what constitutes a prosecutable loitering and prowling charge solely from the four corners of the statute. This article reviews the statute and the case law interpreting it and suggests a framework on which a set of facts can be analyzed to determine whether a loitering and prowling charge can be prosecuted.
Loitering and Prowling
The elements in the framework for analyzing a loitering and prowling factual scenario are as follows:
1) A law enforcement officer sees or is told by a reliable hearsay source of. . .
2) Incipient criminal behavior by a subject. . .
3) Whereupon the officer gives the subject a Miranda warning and asks the subject to explain his or her behavior, and then arrests the subject.
If you are familiar with the loitering and prowling statute, you now may be thinking that this analysis has left out nearly everything in the loitering and prowling statutory language, things like “time, place and manner” and “law-abiding individuals” and “justifiable concern for persons and property” and the like.2 I believe the three elements listed above retain that which is essential and delete that which is extraneous to determining if a set of facts is prosecutable as a loitering and prowling charge.
Let’s look at the first element of this analysis:
A law enforcement officer sees or is told by a reliable hearsay source. . .
The general rule in criminal cases is that a police officer cannot make a warrantless arrest for a misdemeanor offense that did not occur in the officer’s presence; rather, the officer must go before a judge and obtain an arrest warrant.3 Several appellate cases state that this rule applies in loitering and prowling cases.4 An examination of the statutes and case law shows that the application of the general rule to loitering and prowling cases is an incorrect application for the following reasons.
F.S. §856.031, the statute appearing immediately after the loitering and prowling statute, provides an exception permitting an officer to “arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable such suspected loiterer or prowler to escape arrest.” If the suspect’s conduct occurred in the officer’s presence, this statute would not apply, because the officer would not need a warrant to arrest the suspect. Therefore, it would be illogical to conclude that the legislature enacted this statute and then did not intend it to apply to the situation when the conduct did not occur in the officer’s presence. If this were true, then F.S. §856.031 would be a nullity, i.e., of no legal effect at all. Those cases that hold that an officer may not make a warrantless loitering and prowling arrest where the defendant’s conduct occurred outside of the officer’s presence make no mention of F.S. §856.031 in discussing this issue.
This same line of cases consistently cites the Ecker case, the seminal case on loitering and prowling, as authority for the proposition that an officer may not make a warrantless arrest for a loitering and prowling that occurred outside of the officer’s presence. However, a plain reading of Ecker shows that it stands for exactly the opposite. On page 111 of the Ecker opinion, referring to one of the cases (Worth v. State) consolidated for appeal with Ecker, it states:
[T]he record reflects that the defendant was in a warehouse at 9:30 p.m. He was stopped by three lay citizens, who called the police. The testimony at the trial relates primarily to statements made by the defendant after Miranda warnings had been given to him. The citizens who called the police and who were concerned about his presence in the area did not testify in the cause. There is a clear inference from this record that the defendant was in the area for the purpose of stripping an automobile located near one of the warehouses. The circumstances surrounding this incident should have been testified to by the individual citizens who observed the defendant’s conduct. The elements of this offense were not properly established by the sole testimony of arresting officers who did not observe the circumstances that justified the concern for the safety of property by the lay citizens who made the call. The admissions and explanation of the defendant are not in and of themselves sufficient for conviction on this record. We must reverse the conviction, but in doing so stress that the circumstances inferred from this record would establish a violation of Section 856.021, Florida Statutes, if properly established.5 (Emphasis added.)
Accordingly, in Z.P. v. State, 440 So. 2d 601 (Fla. 3d DCA 1983), the Third District Court of Appeal suggested that if the state had produced at trial the citizen who reported the juvenile’s suspicious conduct to the officer that a prosecution for loitering and prowling may have been successful.6
An example of a wrongly decided case on this issue is Lucien v. State, 557 So. 2d 918 (Fla. 4th DCA 1990), in which the Fourth District Court of Appeal threw out a loitering and prowling arrest on the following facts: At 5:30 a.m. a woman heard a knock on her front door and, not recognizing the person outside, called the police. The officer responding saw the defendant about three houses away walking down the street. Upon questioning, the defendant admitted knocking on the door and did so because he wanted to talk to somebody; when asked to identify himself by the police, he responded, “I’m the police.” The court held that:
The failure to provide identification or a reasonable explanation for the questioned activity are not elements of the crime. The criminal conduct must be completed prior to any attempt to identify or explain.. . . [N]othing appellant did in the presence of the officer justified alarm or immediate concern for the safety of persons or property in the vicinity. The place, time or manner of the appellant walking down the street early in the morning was not unusual for a law-biding [sic] citizen.
The Lucien case is troubling because the Fourth District appears to completely disregard the testimony of the woman at home (it appears from the opinion that she did testify) in determining whether the defendant’s behavior fell within the loitering and prowling statute. The court followed the line of reasoning that all elements of the offense must occur in the officer’s presence and only the officer’s own observations may be considered in determining whether a valid loitering and prowling arrest was made.
. . . incipient criminal conduct by a suspect
The second element of the proffered analysis is the most important one to understand, i.e., what the courts consider to be “incipient criminal conduct.” This encompasses that portion of the loitering and prowling statute prohibiting “any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.”
I believe that one should simply focus on what is “incipient criminal conduct” because a police officer (or anyone else) who witnesses this conduct will automatically have a “justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” This “reasonable alarm or immediate concern” is rarely an issue in the loitering and prowling appellate cases construing the statute, because if you have a suspect loitering or prowling in a way not usual for a law-abiding citizen in time, place, and manner, then the alarm or concern naturally follows.
The D.A. Case
The first case to use the phrase “incipient criminal behavior” was D.A. v. State, 471 So. 2d 147 (Fla. 3d DCA 1985). On page 151 the phrase is defined as “aberrant and suspicious criminal conduct which comes close to, but falls short of, the actual commission of a substantive crime. It does not, however, involve behavior which constitutes no threat of immediate, future criminal activity.”
The D.A. case makes four very important points as to what constitutes “incipient criminal conduct.” These four points are listed below, followed by a discussion of each.
First, the conduct must relate to a present or future crime.7
Second, the defendant’s incipient criminal conduct must immediately threaten the safety of persons or property; mere loitering or other behavior which points toward the commission of a victimless crime will not suffice.8
Third, the level of criminally suspicious conduct of the defendant must be far more than a founded suspicion of criminal activity, i.e., than that needed to justify a stop and detention of an individual.9
There is a middle ground between behavior which gives rise to merely a founded suspicion of criminal activity and incipient criminal behavior sufficient to convict of loitering and prowling beyond a reasonable doubt; that is probable cause to arrest for loitering and prowling.
•Conduct must relate to a present or future crime
“[T]he statute is forward-looking, rather than backward-looking in nature. Its purpose is to punish a certain type of criminal behavior before it ripens into the commission or attempted commission of a substantive crime.”10 The statute “[i]s not directed at suspicious after-the-fact criminal behavior which solely indicates involvement in a prior, already completed substantive criminal act.”11 Further, the D.A. court stated, “It is a sine qua non of the first element of this offense that the defendant’s behavior must point to immediate future criminal activity and not refer exclusively to prior criminal activity.”12
A case that demonstrates the forward-looking element of loitering and prowling is State v. Bell, 311 So. 2d 104 (Fla. 1975). Bell, a companion case of Ecker, involved a defendant hiding in bushes at a private dwelling at 1:20 a.m., who ran at the arrival of a police officer. The Florida Supreme Court found these facts clearly represented the type of conduct that “would cause a reasonable person to be concerned for his safety or the safety of property in the vicinity.”13 Bell probably best represents the conduct that the loitering and prowling statute is intended to address; that is, behavior that has not yet ripened into a substantive crime but still presents a clear threat to the safety of persons or property in the area.14
An example of present criminal activity where a loitering and prowling charge was upheld by the Florida Supreme Court is Hardie v. State, 333 So. 2d 13 (Fla. 1976), in which the defendant was observed at 2:55 a.m. rummaging through two cars at a closed gas station but before he had made any move to remove anything or actually steal the cars. The defendant had clearly committed a burglary to a conveyance at the time of the arrest, yet was prosecuted for the loitering and prowling. This case seems to stand for the proposition that even if the defendant is in the process of committing another substantive crime, it does not rule out an arrest or prosecution for loitering and prowling, if the state would choose to charge it in that manner.
Since the Hardie and Bell decisions, the Florida courts have consistently narrowed the application of the loitering and prowling statute to encompass only future criminal activity, and have disapproved loitering and prowling prosecutions for past or completed criminal behavior.15 An example of this is in Patmore v. State, 383 So. 2d 309 (Fla. 2d DCA 1980), in which the defendant was observed running from the police at 9 p.m. in the immediate vicinity of an armed robbery and in the process discarded a bag of marijuana on the street. The Patmore court concluded that the defendant’s activity was sufficient to justify a temporary investigative stop for robbery and to effect an arrest for possession of marijuana—all past and completed crimes—but was insufficient to support a conviction for loitering and prowling because the defendant’s activity in no way pointed to the commission of a future crime.
•The defendant’s incipient criminal conduct must immediately threaten the safety of persons or property; mere loitering or other behavior which points toward the commission of a victimless crime will not suffice.
The D.A. court stated the statute is not “directed at non-aberrant, harmless behavior which, by its very nature, poses no threat of immediate future criminal activity.” Rather, [T]he aberrant or incipient criminal behavior. . . must be alarming in nature; that is, it must threaten the physical safety of persons in the area or the safety of property in the area. It is not enough that the subject criminal behavior points toward the commission or attempted commission of any type of substantive crime; it must point toward the commission or attempted commission of a crime against a person or a crime against certain property in the vicinity. It must, in a word, amount to an imminent breach of the peace or an imminent threat to public safety.16
Despite the title of the statute, it is clear from the case law that loitering alone is insufficient to constitute a criminal offense.17 In fact, in the interest of accuracy the name of the statute should probably be corrected to “criminal prowling” since that is the behavior against which it is directed, not loitering.
Likewise, those suspected of engaging in drug transactions or drug use or engaging in conversations with drug dealers are not susceptible to a loitering and prowling prosecution.18
•The level of criminally suspicious conduct of the defendant must be far more than a founded suspicion of criminal activity, i.e., than that needed to justify a stop and detention of an individual.19
To quote the D.A. case, at 153,
[T]he type of conduct which justifies a temporary detention of a person by the police based on conduct which threatens public safety and amounts to an imminent breach of the peace as authorized by Terry does not justify an arrest because that requires a probable cause showing under the Fourth Amendment; and it does not justify a conviction as that requires proof beyond a reasonable doubt.
The courts not infrequently have difficulty distinguishing between conduct that is sufficient for a Terry stop and detention and that conduct that constitutes loitering and prowling. In G.E.C. v. State, 586 So. 2d 1338 (Fla. 5th DCA 1991), the police received calls in the evening hours of black males lurking on foot behind a store. The police saw a vehicle without its lights on driving on a dirt road behind the store. The car turned onto the highway and turned its lights on. When the police stopped the car, a passenger jumped out and ran, leaving the juvenile respondent driver in the car. There were cassette tapes strewn over the front seat and speakers in the back which were not bolted down. The Fifth District Court of Appeal held that although there may have been a founded suspicion to stop the car and question the occupants, there was insufficient evidence to amount to probable cause to arrest for loitering and prowling.
In State v. Coron, 411 So. 2d 237 (Fla. 3d DCA 1982), a loitering and prowling conviction was upheld for what was essentially Terry-stop behavior: The defendant was seen in the vicinity of a reported shooting, apparently drunk and with dried grass on his hair and back, yet the defendant’s shoes were wet. The defendant gave conflicting responses for his presence and activities in the area. In this writer’s view, it was quite reasonable for the police to detain the defendant for investigation and questioning about his involvement in the shooting; it was not so reasonable for a court to subsequently find that the defendant had indeed committed the substantive crime of loitering and prowling based on the facts described. The defendant was drunk, disheveled, and in the vicinity of another crime. This behavior (or condition) should not amount to a crime in and of itself.
In Patmore v. State, 383 So. 2d 309 (Fla. 2d DCA 1980), the defendant was seen at 9 p.m. walking down the street. On seeing a passing police car, the defendant turned around and ran away. The police were looking for suspects in an armed robbery and pursued him. The defendant dropped a bag of marijuana and was stopped. The court held that founded suspicion may have existed to suspect him of robbery (and presumably then to detain and question him), but there was insufficient evidence to charge him with loitering and prowling.20
•There is a middle ground between behavior that gives rise to merely a founded suspicion of criminal activity and incipient criminal behavior sufficient to convict of loitering and prowling beyond a reasonable doubt; that middle ground is probable cause to arrest for loitering and prowling.
In Addis v. State, 557 So. 2d 84 (Fla. 3d DCA 1990), the defendant was seen walking down an alley at 2:40 a.m., looking into parked vehicles. The officer shined a light on the defendant, who started walking in another direction. The officer stopped and questioned the defendant, receiving conflicting answers as to his activities.
In Addis, the Third District Court of Appeal wrote:
The facts articulated in this case do not meet the probable cause requirements of the statute. The defendant was arrested because: (a) he had looked into two parked cars, (b) he had no identification, (c) the officer did not believe the defendant had a particular destination, and (d) the officer did not consider the defendant’s answers to be straightforward. This behavior is not criminal and does not support an arrest for loitering and prowling (citations omitted).. . . Something more than the above is needed before such an arrest can be considered legally justified. Additional facts and circumstances would be needed to tip the balance in favor of upholding the arrest and resulting search. Here, for example, no door handles were tried and no cars were repeatedly circled by the appellant.21
Compare Addis to State v. Gibbons, 617 So. 2d 854 (Fla. 2d DCA 1993). In Gibbons, a man was seen by a civilian witness in the early morning hours in a residential area, carrying a large black bag and looking into cars. The police tracked the individual from that scene with a K-9 dog, soon thereafter leading to the defendant, who fit the physical description of the individual seen, including possessing a large black bag. The defendant emerged from a dark alley on a bicycle and stopped to look around as if to see if someone was watching. The defendant initially began to flee upon seeing the police but stopped when the K-9 dog barked. The defendant’s explanation of his actions was filled with falsehoods and inconsistencies. The court held that probable cause existed to effect an arrest for loitering and prowling.22
. . . whereupon the officer gives the subject a Miranda warning and asks the subject to explain his or her conduct, and then arrests the subject.
The loitering and prowling statute does not require that a suspect be advised of Miranda23 rights against self-incrimination before the suspect is requested to “identify himself and explain his presence and conduct.” However, the case law, beginning with Ecker,24 holds that before a suspect can be arrested for loitering and prowling, the police must inform the suspect of his or her Miranda rights before offering the defendant an opportunity to identify himself and explain his presence and conduct.
The loitering and prowling statute also states that this opportunity to explain must be provided “unless flight by the person or other circumstance makes it impracticable.” I am unaware of any case holding that the circumstance in that case made the opportunity to explain “impracticable” and therefore unnecessary. In Z.P. v. State, 440 So. 2d 601 (Fla. 3d DCA 1983), the court held that flight by the suspect alone was not a sufficient circumstance to waive the requirement of providing him with an opportunity to explain his actions. In D.L.B. v. State, 685 So. 2d 1340 (Fla. 2d DCA 1996), the juvenile suspect fled from the investigating police officer under suspicious circumstances and, after apprehension, was not questioned about his actions before being arrested for loitering and prowling. The Second District Court of Appeal rejected the state’s assertion on appeal that the suspect’s flight made it impractical to afford an opportunity to explain his actions: “[T]he opportunity to explain himself arose when the appellant was finally apprehended.”25 isuspect that flight from the scene could be sufficient under circumstances where the suspect completely escapes the police at the time of the incident and is apprehended at a later time and place, say through an arrest warrant.
In almost all cases where an arrest is made the defendant either gives no explanation for his or her actions or gives an explanation that is clearly phony or even inculpatory. If the defendant is able to talk his or her way out of the predicament, the officer will not make the arrest and the state attorney and court system will never see the case in the first place. However, where the defendant gives a facially reasonable explanation for his or her conduct, the officer must take steps to verify or disprove the defendant’s story before an arrest can be effected.26 The refusal to identify oneself cannot provide the basis for a loitering and prowling charge.27
If, after the appropriate Miranda warning, defendants refuse to make any statement, can their failure to explain their conduct be used against them at trial? The cases hold that the defendant is not required to explain his or her presence or conduct and the failure to do so cannot be used against the defendant,28 but that the defendant’s refusal to identify himself or herself—although not conclusive in establishing that the officer’s alarm or concern was justifiable—may be used as evidence to help establish this fact.29
The framework presented above is an attempt to make an unwieldy, poorly worded criminal statute and the cases interpreting it somewhat comprehensible. A better solution would be for the legislature to address the problem by drafting a new “criminal prowling” statute, using the case law as a guide in passing constitutional muster and in more tightly defining the behavior at which the statute would be directed.q
1 856.021. LOITERING OR PROWLING; PENALTY
(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances to be considered which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the defendant makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
(3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
A related statute, Fla. Stat. §856.031, provides:
856.031 ARREST WITHOUT WARRANT
Any sheriff, policeman or other law enforcement officer may arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable such suspected loiterer or prowler to escape arrest.
2 See id.
3 Fla. Stat. §901.15(1).
4 Springfield v. State, 481 So. 2d 975 (Fla. 4th D.C.A. 1986); T.L.F. v. State, 536 So. 2d 371 (Fla. 2d D.C.A. 1989).
5 State v, Ecker, 311 So. 2d 104, 111 (Fla. 1975) (emphasis added).
6 Z.P., 440 So. 2d at 601.
7 D.A. v. State, 471 So. 2d at 151.
8 Id. at 152.
9 Id. at 153.
10 Id. at 151.
13 Bell, 311 So. 2d at 110.
14 Interestingly, in Bell there is no indication that the defendant was given an opportunity by the officer to explain his conduct on the scene before Bell was arrested. It appears from the opinion that the defendant testified in court regarding what had occurred; this was apparently deemed to be a sufficient “opportunity to explain his presence and conduct,” Ecker, 311 So. 2d at 111.
15 See D.A v. State, 471 So. 2d at 151 (at 3:15 p.m., a police officer saw the defendant and an adult male by a van parked in an alley in a residential area; they fled through yards at the sight of the officer; the van had a punched ignition. The court held that there was no incipient criminal conduct here, just evidence of an involvement in an already completed crime, i.e., the theft of the van); Robinson v. State, 550 So. 2d 1186, 1188 (Fla. 5th D.C.A. 1989) (the defendant was seen in the area of a police parking lot before and after a bomb threat to the cars was received and the defendant was identified by his voice; the defendant refused to answer questions; the court held that any substantive crime committed had already been completed so there was no loitering and prowling—“nothing pointed to the possibility of future criminal activity”); Springfield, 481 So. 2d at 975 (at 10:40 p.m., the police officer responded to a report of a black male walking from behind the complainant’s house carrying something; the officer saw the defendant carrying a tape recorder in his arms and staggering; the defendant said he found it in garbage, but there was no dew or dirt on it; the defendant had no ID and could not explain his presence in area; the officer knew the defendant as a burglar who gave similar explanation at a previous burglary; the court held there was no probable cause to arrest for loitering and prowling because the crime was not about to happen nor was it ongoing, rather it was completed); V.E. v. State, 539 So. 2d 1171, 1172 (Fla. 3d D.C.A. 1989) (a woman saw the defendant looking in her window and another person trying to open her door; when she called out to them they answered in Spanish, whereupon she said “No” and they left. Police found them walking one and a half blocks away; the defendant said he was looking for a friend’s house, his companion gave a conflicting statement and in fact admitted committing a burglary in the area. The court held that any crime here was already committed. There was insufficient evidence that the defendant was about to attempt to commit a criminal act); T.W. v. State, 676 So. 2d 1013 (Fla. 2d D.C.A. 1996) (the defendant was seen carrying a chain saw, suspected to be stolen, next to a pawn shop at 4:00 a.m.; the court held there was insufficient evidence of a prospective crime).
16 D.A, 471 So. 2d at 152.
17 Freeman v. State, 542 So. 2d 483 (Fla. 2d D.C.A. 1989) (the defendant was seen hanging around a street corner by a store with a no loitering sign); L.S. v. State, 449 So. 2d 1305 (Fla. 3d D.C.A. 1984) (a 14 year-old and two companions were seen crouching in bushes near an expressway exit, a site of numerous robberies); White v. State, 458 So. 2d 1150 (Fla. 1st D.C.A. 1984) (the defendant was found asleep in his car); Woody v. State, 581 So. 2d 966 (Fla. 2d D.C.A. 1991) (the defendant was with a group of males in a residential area who fled at the sight of police; the defendant explained he was just hanging out); contra, State v. Lookretis, 657 So. 2d 1237 (Fla. 2d D.C.A. 1995) (at 1:05 a.m. the defendant was seen walking from his car between buildings in a public housing project and returning to his car in 15 minutes, and the officer knew defendant did not live there; the court held that this was sufficient to raise an alarm with the officer and when the defendant’s explanation for his actions was inconsistent with his actions, the officer had probable cause for a loitering and prowling arrest); Van Goff v. State, 687 So. 2d 926 (Fla. 2d D.C.A. 1997) (the defendant was sitting at 9:00 p.m. near dumpsters by a convenience store open for business, the store being a site of numerous recent crimes).
18 See B.A.A. v. State, 356 So. 2d 304 (Fla. 1978) (a juvenile was approaching cars stopped at a traffic light and engaging them in conversation); Blanding v. State, 446 So. 2d 1135 (Fla. 3d D.C.A. 1984) (the defendant was seen engaging in two suspected drug transactions and then fleeing during a third); Carroll v. State, 573 So. 2d 148 (Fla. 2d D.C.A. 1991) (the defendant was in a parked truck speaking to someone by his car door, and this other person fled upon sighting the police, and the defendant gave inconsistent answers regarding his presence and conduct); C.V.H. v. State, 557 So. 2d 927 (Fla. 5th D.C.A. 1990) (the defendant was seen in the company of another who sold drugs in a convenience store parking lot); McGee v. State, 673 So. 2d 186 (Fla. 4th D.C.A. 1995) (the defendant was seen engaged in possible drug transaction); Palmer v. State, 543 So. 2d 475 (4th D.C.A. 1989) (the defendant was seen talking to a known drug dealer and walking with him to an unlit area for a brief period).
19 D.A., 471 So. 2d at 153.
20 See also Levin v. State, 449 So. 2d 288 (Fla. 3d D.C.A. 1983), aff’d, 452 So. 2d 562 (Fla. 1984) ( the defendant was walking with a companion along a street at 3:00 a.m. in a residential area where burglaries had occurred, carrying a fishing pole and proceeding toward open water; the court held there was no founded suspicion of a crime). Compare with State v. Spurling, 385 So. 2d 672 (Fla. 2d D.C.A. 1980) (the defendant was urinating on the side of a truck in bowling alley parking lot, the site of loitering and other problems; the court held that founded suspicion for loitering and prowling existed).
21 See also Ingram v. State, 502 So. 2d 529 (Fla. 4th D.C.A. 1987) (the police saw the defendant knocking on a window at an apartment complex and later was knocking on an apartment door several blocks away. The defendant said a friend named Jeff lived there and that she was trying to get a ride home. The resident in the adjacent apartment said it had been empty for several months. The police took the defendant to the first apartment; the resident did not know the defendant—at a later hearing he said the defendant was an acquaintance. Police testified the defendant did not hide or make furtive moves and there was nothing to indicate the defendant was about to break into the apartment. The court held that the misinformation given by the defendant did not give rise to probable cause for a loitering and prowling arrest); T.L.F. v. State, 536 So. 2d 371 (Fla. 2d D.C.A. 1988) (a juvenile, shirtless, was seen by the police standing outside the rear of a building talking to an employee of the building and a construction worker. The juvenile refused to identify himself to the officer and would not explain his presence at the rear of the building. The court held that there was no probable cause for loitering and prowling); White v. State, 458 So. 2d 1150 (Fla. 1st D.C.A. 1984) (the defendant was seen sleeping in a car at 1:00 a.m. parked at a hospital adjacent to a school which had been recently burglarized; the court held that there was no probable cause for loitering and prowling); Chamson v. State, 529 So. 2d 1160 (Fla. 3d D.C.A. 1988) (at 10:00 p.m. the defendant entered a hotel and walked towards the stairs; after three requests from the manager to leave, the defendant complied. At 11:30 p.m. the defendant was crouching in an alley next to the hotel. The defendant said he was there to visit a friend at the hotel but could not supply the name or room number. The court held that there was no probable cause for a loitering and prowling arrest); G.E.C. v. State, 586 So. 2d 1338 (Fla. 5th D.C.A. 1991) (in the evening hours, the police received calls of black males lurking on foot behind a store. The police saw a vehicle without its lights on driving on the dirt road behind the store. The car turned onto the highway and then turned its lights on. The officers attempted to stop the car; a passenger jumped out and fled on foot. There were cassette tapes strewn over the front seat and speakers which were not bolted down were in the back. The court held that there was no probable cause for a loitering and prowling arrest.)
22 See also A.L.B. v. State, 399 So. 2d 483 (Fla. 3d D.C.A. 1981) (in midday, the police saw the juvenile crouched down in a yard at the rear of a private residence and, as they approached and exited their car, saw the juvenile walk away from the home and drop a glass piggy bank filled with coins; when their suspicion was not dispelled, police had probable cause to arrest the juvenile); State v. Caballero, 396 So. 2d 1210 (Fla. 3d D.C.A. 1981) (at 1:00 a.m. the police saw the defendant’s car parked at a gas station next to a closing restaurant with its lights out and motor running; someone ran to the defendant’s car and got in. The car proceeded to the highway with lights still off, then made a U-turn and turned its lights on. When stopped, the defendant said he had gone to the gas station to make a U-turn. The court held that probable cause existed for a loitering and prowling arrest); State v. Gibbons, 617 So. 2d 854 (Fla. 2d D.C.A. 1993) (at 1:00 to 2:00 a.m. a neighbor saw a man in the rear of a house in a residential area, carrying a large black bag and looking into cars. The police tracked from that scene with a K-9 dog, soon thereafter leading to the defendant, fitting the physical description of the individual seen, including possessing a large black bag. The defendant emerged from a dark alley on a bicycle and stopped to look around as if to see if someone was watching. The defendant initially began to flee but stopped when the dog barked. The defendant’s explanation of his actions was filled with falsehoods and inconsistencies. The court held that probable cause existed to arrest for loitering and prowling); State v. Jones, 454 So. 2d 774 (Fla. 3d D.C.A. 1984) (the defendant was found at 2:40 a.m. alone outside of a business in a commercial district pushing a shopping cart full of cartons. He disavowed any knowledge or possession of the cart or cartons when questioned by police. He had no ID and gave factually conflicting explanations regarding his intentions. The court held that an arrest for loitering and prowling was proper); State v. Lookretis, 657 So. 2d 1237 (Fla. 2d D.C.A. 1995) (at 1:05 a.m. the police saw the defendant stop his car in front of a duplex in a housing authority, turn off the car lights and quickly back up. The defendant then exited the car and walked out of sight between some duplexes, returning 15 minutes later. The officer knew the residents, who were all black, and did not know the defendant who was white. The officer knew the duplexes were documented crack houses. The defendant then gave inconsistent explanations for his actions and presence. The court held that the officer had probable cause to arrest for loitering and prowling); Towne v. State, 495 So. 2d 895 (Fla. 1st D.C.A. 1986) (at 1:00 a.m. the defendant was seen by police—dispatched in response to a prowler complaint—walk 30 paces, stop next to a window, then crouch down and look in the window for several seconds. When the defendant realized the officer was watching him he quickly walked away. The defendant matched the description given of the reported prowler. The officer caught up to the defendant; the defendant was unable to explain his presence or actions. The court held that probable cause existed for a loitering and prowling arrest.)
23 Miranda v. Arizona, 384 U.S. 436 (1966).
24 Ecker, 311 So. 2d at 110, but see the companion case Bell, 311 So. 2d at 111, wherein the defendant was not questioned on the scene but rather testified at trial. In S.F. v. State, 354 So. 2d 474 (Fla. 3d D.C.A. 1978), the court held that the police must afford the suspect the opportunity to explain his actions and that the state may not rely on a statement given to another civilian individual on the scene.
25 D.L.B., 685 So. 2d at 1340.
26 Spears v. State, 302 So. 2d 805 (Fla. 2d D.C.A. 1974).
27 Robinson v. State, 550 So. 2d 1186 (Fla. 5th D.C.A. 1989).
28 Ecker, 311 So. 2d at 110.
29 D.A., 471 So. 2d at 154. See also Smith v. State, 22 Fla. L. Weekly D1467 (Fla. 4th D.C.A. 1997), wherein the defendant’s conviction was reversed for repeated references by the prosecutor to the defendant’s failure to explain his presence and conduct to the police.
Joseph D. Robinson is an assistant state attorney and chief of the felony screening unit of the Dade County State Attorney’s Office. He received his B.S. from the University of Illinois in 1976 and his J.D. from Northern Illinois University in 1981.
This column is submitted on behalf of the Criminal Law Section, Claire K. Luten, chair, and Randy E. Merrill, editor.