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Loitering or Prowling

Loitering or Prowling charges are on my Top 10 list of Most Bogus Charges Ever.  For those of you familiar with the law, this should come as no surprise. When a police officer can't figure out what a citizen is doing wrong, they arrest him for loitering or prowling.  Loitering is an excuse to stop and seize a citizen in cases where law enforcement have no good reason to do so.  As such, we see a lot of drug charges or possession of burglary tool charges that begin as a loitering encounter.  So, to knock out the felony charges found as a result of a search pursuant to a loitering charge, it is first necessary to challenge the basis of the loitering charge.  Let's take a look at how this works.

Loitering or prowling is a second degree misdemeanor punishable by up to 60 days in jail, 6 months probation, and a $500 fine.  The loitering statute is found in Section 856.021(1) of the Florida Statutes.  It reads as follows: "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."  As a technical matter, keep in mind that because this crime is a misdemeanor, all of the elements of the crime must be committed in the presence of the officer prior to arrest.  

The problem is, police officers use this statute to seize citizens that they believe are "suspicious".  Merely "vaguely suspicious presence is insufficient" to convict for loitering.  P.R. v. State, 97 So. 3d 980 (Fla. 4th DCA 2012).  

The loitering statute requires one of two things: (1) ALARM or (2) IMMEDIATE concern.  Yes, I'm using all caps for a reason--the courts are laser focused on the imminent danger presented by the loitering or prowling.  In the recent case of S.K.W. v. State, the court overturned a loitering and prowling conviction because the facts did not bear out "an imminent threat." 112 So. 3d 775 (2nd DCA 2013).  One exception to the rule is that, when a citizen "takes flight, refuses to identify himself, or attempts to conceal himself or an object", the State has proven a case of loitering or prowling--even though they have not shown any sort of immediate threat.  G.G. v. State, 903 So. 2d 1031 (Fla. 4th DCA 2005).  

So, rather than bore you with examples of what "is" loitering, its better to list some fact patterns that do NOT constitute loitering or prowling (compliments of the S.K.W. court):

Possibly suspicious behavior of defendant looking into cars in dark parking lot, and defendant telling cops that he was taking a 'roundabout route home' was not enough to convict for loitering or prowling.  Bowser v. State, 937 So. 2d 1270, 1271-72 (Fla. 2d DCA 2006)

Defendant hiding behind some bushes, unable to give police any articulable reason as to why he was doing such, did not constitute loitering.  Really, the cop was simply speculating, and the government couldn't produce any evidence that criminal activity was afoot. No loitering, case dismissed. Woody v. State, 581 So. 2d 966, 967 (Fla. 2d DCA 1991) 

Juvenile, not from the neighborhood, was carrying a large satchel and flashlight, walking slowly down the street looking into carports and sides of houses in an area where recent burglaries occurred.  Court found that the State did not meet its burden, so the appeals court overturned the loitering or prowling conviction.  Yes, this was a close one--but we're in "beyond a reasonable doubt" territory here--so close doesn't cut it.  Case dismissed.  E.F. v. State, 110 So. 3d 101 (Fla. 4th DCA 2013).  By the way, they found burglary tools inside of E.F.'s satchel, but such burglary items cannot factor into the equation of "imminent threat" because the officer must witness the entire crime committed prior to arresting E.F. for loitering.  

Now, let's take a look at all the nasty things appeals courts have said about loitering and prowling charges--you won't find judges blasting many other crimes, so savor this while you can:

The crime of loitering "reaches the outer limits of constitutionality and must be applied with special care." Carroll v. State, 573 So. 2d 148 (Fla. 2d DCA 1991).

"Loitering has long been an offense that occasionally tempts good police officers to exercise power in a manner that is inconstitent with the standards of our free society." Rinehart v. State, 778 So. 2d 331, 335 (Fla. 2d DCA 2000) (Altenbernd, J., concurring)

The loitering or prowling statute must not be used as a "catchall provision to detain a citizen and prosecute where there was insufficient basis to convict on some other charge." Woody, above.

"[D]ue to the loitering state's potential for abuse, it 'must be applied with special care'." E.F., above.

[I could go on and on, as the loitering statute is an easy target.  But, you get the point.] 

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