The loitering and prowling statute in Florida is difficult to understand because it relies on subjective judgment and vague language. To analyze whether a charge can be prosecuted, we can use a framework with three elements. The first element is when a law enforcement officer sees or hears from a reliable source about potential criminal behavior by a person. This sets the stage for further investigation and potential arrest. In criminal cases, a police officer generally can’t arrest someone for a minor offense unless they saw it happen or have a warrant. But for loitering and prowling, there’s an exception to this rule. The law says an officer can arrest a suspected loiterer or prowler without a warrant if waiting for one would let the suspect escape. This means the general rule doesn’t apply in these cases. Some court cases have said otherwise, but they didn’t mention this law, so their decision might not be right. In some legal cases, the Ecker case has been cited as saying that an officer can’t arrest someone for loitering and prowling unless they saw it happen. However, when you actually read the Ecker case, it actually says the opposite. It even says that if the person who called the police had testified at trial, the prosecution for loitering and prowling may have been successful. Another case, Lucien v. State, was decided wrongly because the court said the officer didn’t have a reason to be alarmed by the defendant’s behavior. But the court was wrong because the law doesn’t require a completed crime for the officer to take action, and the officer doesn’t need to see the behavior happen in order to arrest someone. The Lucien case is troubling because the court seems to ignore the testimony of a woman at home and only consider the police officer’s observations in deciding if the defendant’s behavior violated the loitering and prowling statute. The second element of the analysis is what the courts consider to be “incipient criminal conduct,” meaning behavior that raises alarm or concern for the safety of people or property nearby. This is rarely an issue in loitering and prowling cases because suspicious behavior naturally causes alarm. The D.A. case defines “incipient criminal behavior” as conduct that is suspicious and close to criminal activity, but does not pose an immediate threat. To be arrested for loitering and prowling, the person’s behavior must show they are about to commit a crime that threatens the safety of others or their property. It can’t just be a suspicion of criminal activity – it has to be more than that, but not quite enough to be convicted of loitering and prowling. The law against loitering and prowling is meant to punish behavior that looks like it could lead to a crime happening soon. It’s not for behavior that looks like it’s already been done. For example, hiding near someone’s house late at night or going through cars at a closed gas station could be considered loitering and prowling because it looks like a crime is about to happen. Even if the person is already in the middle of doing something illegal, they could still be charged with loitering and prowling. Since the Hardie and Bell decisions, Florida courts have made it clear that the loitering and prowling law only applies to future criminal activity, not past crimes. For example, in the Patmore case, a person running from the police and throwing away drugs wasn’t enough for a loitering and prowling charge because it didn’t show a future crime. The law is meant to prevent immediate threats to people or property, not just harmless behavior or victimless crimes. So, the name of the law should probably be changed to “criminal prowling” to be more accurate. If someone is suspected of doing drugs or talking to drug dealers, they can’t be charged with loitering and prowling. The court has a hard time figuring out the difference between suspicious behavior that justifies being stopped by the police and behavior that counts as loitering and prowling. For example, in one case, the police got calls about people lurking behind a store, and when they stopped a car driving without its lights on, one person ran away. The court said that while the police had good reason to stop the car and question the people in it, there wasn’t enough evidence to arrest anyone for loitering and prowling. In State v. Coron, a man was seen near a shooting, looking drunk and disheveled, with dried grass on him. He gave conflicting answers about why he was there. The court upheld his conviction for loitering and prowling, but it wasn’t fair to charge him based on his appearance and behavior.
In Patmore v. State, a man was walking down the street at night and ran from the police. They found marijuana on him but the court said there wasn’t enough evidence to charge him with loitering and prowling.
In Addis v. State, a man was walking down an alley at night, looking into parked cars. When a police officer asked him about it, he gave conflicting answers.
Overall, there’s a middle ground between behavior that looks suspicious and behavior that’s enough for a conviction of loitering and prowling. The court said that the facts in the case weren’t enough for the arrest. The person was arrested for looking into cars and not having ID, but those things aren’t illegal. In another case, the court said it was okay to arrest someone for loitering and prowling because the person was acting suspicious and lying about what they were doing. The court also said that the police have to tell someone their rights before asking them to explain their actions. If someone is suspected of loitering or prowling, the law says the police have to give them a chance to explain themselves. Even if the person runs away, they still have to be given that chance. In two court cases, it was decided that just running away isn’t a good enough reason for the police to not let the person explain themselves. But in some situations, if the person gets away and is caught later, then maybe they don’t have to be given a chance to explain. If someone is arrested for loitering and prowling, the police have to give them a chance to explain their behavior before making an arrest. If the person can give a reasonable explanation, they won’t get arrested. But if they refuse to identify themselves, that can be used as evidence against them. The law could be clearer, but for now, the police have to follow certain rules before making an arrest. And if the person doesn’t want to talk, that can’t be used against them in court. Joseph D. Robinson is a lawyer who works for the Dade County State Attorneyâs Office. He is in charge of reviewing serious criminal cases.
Source: https://www.floridabar.org/the-florida-bar-journal/a-loitering-and-prowling-primer/
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