“Walking While Suspicious”: Why the Police Can’t Arrest You for Loitering

By: John Guidry

The general public is not always privy to the day-to-day shenanigans of Florida’s criminal justice system. Fear not, that’s why I’m here.

Some charges, on their face, are simply sketchy.

• Tampering with Evidence: Often used when a kid “eats his weed” to avoid a misdemeanor, only to get slapped with a felony.
• Loitering and Prowling: The ultimate “catchall” charge used to detain anyone the police just don’t like.

Loitering is frequently abused by police. If an officer sees a person “wandering” in a neighborhood where they “don’t belong,” a loitering charge is often close at hand. But I’m not the only one who thinks this charge is bogus—our appeals courts agree.

Arrested for “Loitering” because you were in the wrong place at the wrong time?

Suspicion isn’t a crime. Call John today at (407) 423-1117.

The Case: S.K.W. v. State

The real-life example of the day comes from S.K.W. v. State, 112 So. 3d 775 (Fla. 2d DCA 2013).

• The Scene: A neighbor saw two juvenile girls near a vacant house. They walked onto the second-floor porch.
• The Compliance: When the police arrived, they ordered the girls down. They complied. They gave their correct names. They had no drugs or weapons (only lighters).
• The Investigation: The officer checked the house—no signs of forced entry.
• The Arrest: Despite having no evidence of a crime, the officer arrested both girls for Loitering and Prowling.

The Law: “Immediate Concern” is Required

The crime of Loitering and Prowling (Florida Statute 856.021) requires the State to prove two things:

1. You were in a place/time/manner not usual for law-abiding individuals.
2. Your behavior warranted a justifiable and reasonable alarm or immediate concern for safety.

The most important words are “Immediate Concern.”

• Merely being “suspicious” is not enough.
• There must be facts pointing to an “imminent threat” of a crime.

Why S.K.W. Won: The Appeals Court threw out the conviction.

• Looking into cars? Not enough (Bowser v. State).
• Hiding in bushes? Not enough (Woody v. State).
• Walking on a porch? Not enough.

Because the girls identified themselves and didn’t flee, the officer’s “alarm” was based on pure speculation, not facts.

Judicial Critique: “The Outer Limits of Constitutionality”

The best part of this case isn’t just the win; it’s how the judges blasted the law itself.

• In Carroll v. State, the court said the Loitering statute “reaches the outer limits of constitutionality.”
• In Rinehart v. State, the court admitted that Loitering “tempts good police officers to exercise power in a manner that is inconsistent with the standards of our free society.”
• In Woody v. State, the court called it a “catchall provision” used to detain citizens when there is no evidence for a real charge.

John’s 2026 Update: The New War on “Public Presence”

Note: While S.K.W. is still good law, the Florida Legislature has armed the police with new weapons to target people “hanging around.”

1. The “Anti-Camping” Law (HB 1365) Effective October 2024, Florida banned “public camping or sleeping.”

• The Impact: This law essentially criminalizes homelessness. Police no longer need to prove “Loitering” elements (alarm/immediate concern) if they find someone sleeping or setting up bedding in public.
• The Lawsuits: The law allows citizens to sue the County if they don’t arrest people. This puts immense pressure on police to arrest anyone who looks like they are “dwelling” in public.

2. A 2025 Victory: Saintil v. State Despite the crackdown, the courts are holding the line on traditional Loitering cases. In March 2025, the 4th DCA overturned a conviction in Saintil v. State.

• The Facts: A man was seen looking into car windows in an employee parking lot.
• The Ruling: The court ruled that “vaguely suspicious presence” is still not a crime. Unless the officer sees an overt act toward a crime (like pulling a handle or breaking glass), looking into a car is not Loitering.

The Bottom Line: Police are under pressure to “clean up the streets,” which means more bogus Loitering arrests. But as Saintil proves, we can beat these charges if you didn’t flee and didn’t refuse to identify yourself.

Call me at (407) 423-1117. Let’s make them prove the “Imminent Threat.”

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.