Definition of Loitering and Prowling
Under Section 856.021, Florida Statutes, it is unlawful for any person to “loiter and 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.
The essence of loitering or prowling in Florida is that the accused engaged in unusual or suspicious behavior that causes justifiable concern that a crime is about to be committed against persons or property.
To prove the offense of Loitering or Prowling at trial, the prosecution must establish the following two elements beyond a reasonable doubt:
- The defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals, and
- The defendant’s behavior (loitering or prowling) occurred under circumstances that warranted justifiable and reasonable alarm or immediate concern for the safety of persons or property in the accused’s vicinity.
Meaning of ‘Alarm’ or ‘Immediate Concern’
In determining whether “alarm” or “immediate concern” is justified under the circumstances, a judge or jury may take into account a wide range of factors, including, but not limit to:
- Whether the defendant took flight upon the arrival police;
- Whether the defendant refused to identify himself;
- Whether the defendant attempted to conceal himself or herself or any object he or she was carrying
If the defendant took flight or concealed himself or an object he or she was carrying, then these actions will create rebuttable presumption that the officer’s sense of “alarm” or “concern” was justified. S.J. v. State, 50 So. 3d 102, 104 (Fla. 4th DCA 2010).
Penalties for Loitering and Prowling
Under Florida law, Loitering or Prowling is classified as a second degree misdemeanor, which carries penalties of up to 60 days in jail and a $500 fine.
Defenses to Loitering and Prowling
There are many defenses available to contest a charge of Loitering or Prowling. These defenses may be factual or legal in nature. Some of the more common examples include the following:
Mere Idleness, Vagrancy, Suspicious Presence
Florida’s Loitering and Prowling statute does not criminalize idleness or vagrancy, and does not empower police to detain citizens to explain their unusual presence or status. State v. Ecker, 311 So. 2d 104, 107-10 (Fla. 1975). A police officer must have more than a vague suspicion about the accused’s presence to detain or arrest a suspect. D.S.D. v. State, 997 So. 2d 1191, 1194 (Fla. 5th DCA 2008); Hunter v. State, 32 So. 3d 170 (Fla. 4th DCA 2010).
Thus, merely being present in the area of closed businesses, standing in a dark alley behind a closed church, being present late at night in an area of recent burglaries, and standing on railroad tracks late at night near the site of an attempted car break-in are all insufficient grounds to sustain a conviction for Loitering or Prowling.
- Hollingsworth v. State, 991 So. 2d 990, 992 (Fla. 4th DCA 2008) (suspicious presence around closed businesses);
- Hunter v. State, 32 So. 3d 170 (Fla. 4th DCA 2010) (suspicious presence in a dark alleyway behind a closed church);
- J.S.B. v. State, 729 So. 2d 456 (Fla. 2d DCA 1999) (suspicious presence at night in an area of recent burglaries);
- KRR v. State, 629 So. 2d 1068 (Fla. 2d DCA 1994) (nighttime presence on railroad tracks near the site of an attempted car theft);
- Stephens v. State, 987 So. 2d 182 (Fla. 2d DCA 2008) (unusual nighttime presence of a suspect around a closed grocery store);
- V.E. v. State, 539 So. 2d 1170 (Fla. 3d DCA 1989) (suspicious presence of juveniles in a residential neighborhood where they had reportedly been looking into windows).
No Imminent Threat / Breach of Peace
A detention by police for Loitering or Prowling requires that the accused’s conduct come close to, but fall short of, the the actual commission or attempted commission of a substantive crime, so as to suggest that a breach of peace is imminent. Mills v. State, 58 So. 3d 936 (Fla. 2d DCA 2011).
If there is no imminent breach of peace or imminent threat to persons or property, a detention or arrest is unlawful and a conviction cannot be sustained. Id.; E.B. v. State, 537 So. 2d 148 (Fla. 2d DCA 1989).
Thus, in L.C. v. State, 516 So. 2d 95 (Fla. 3d DCA 1987), a police officer stopped a juvenile who was present at 10:00 p.m. in a shopping center parking lot looking into store windows. The juvenile was also observed pushing on the door to a closed business. On these facts, the Third District Court of Appeal held that there was insufficient evidence of an imminent threat to persons or property to sustain a Loitering and Prowling conviction. Id. at 96.
Police Not Present
Both elements of a loitering and prowling charge must be committed in the presence of a police officer before the officer is permitted to take action to detain or arrest a suspect. J.S.B. v. State, 729 So. 2d 456 (Fla. 2d DCA 1999); Grant v. State, 854 So. 2d 240, 242 (Fla. Dist. Ct. App. 4th Dist. 2003). An anonymous report of suspicious behavior is insufficient. See Hunter v. State, 32 So. 3d 170 (Fla. 4th DCA 2010).
To prove a loitering or prowling charge, or to justify an arrest or detention, the prosecution cannot rely on the defendant’s subsequent reaction to a police officer when the officer’s attempted stop, detention, or arrest of the defendant lacked reasonable suspicion or probable cause in the first place. See Hollingsworth v. State, 991 So. 2d 990, 992 (Fla. 4th DCA 2008).
Police also cannot use evidence found only after improperly detaining a defendant as retroactive grounds to support a Loitering and Prowling charge. D.S.D. v. State, 997 So. 2d at 1194.
No Opportunity to Explain or Dispel Alarm
Unless the suspect flees upon the appearance of police, or other circumstances make it impractical, a police officer must, upon stopping or detaining the accused, give the accused an opportunity to identify his/herself and explain his or her actions so as to dispel the officer’s alarm or immediate concern. See Section 856.021(2), Florida Statutes.
If the officer fails to comply with this procedure, or if it appears to the trial court that the explanation given by the accused was true, then a conviction for loitering and prowling will not stand.
Case Example- Loitering and Prowling
State vs. O.P. (Eighteenth Judicial Circuit, Seminole County) (2015)- Our client was charged with Loitering or Prowling and Resisting Arrest after parking his vehicle in a Lowe’s parking lot at 3:30 a.m., and then refusing an investigating officer’s efforts to carry out an arrest.
A string of recent burglaries had occurred in the area, and our client was seen in a dark section of the parking lot, sitting in the driver’s seat with the hood of his sweatshirt pulled over his head. At no point was he seen outside the vehicle, and there were no other observations made by the officer indicating an imminent threat of criminal activity.
Given the circumstances, the police approached our client’s vehicle and demanded an explanation for the unusual presence. He then directed our client to produce identification. As our client was reaching for his wallet under the seat, the officer claimed to observe “furtive” movements and ordered our client to exit the vehicle.
Our client refused the officer’s commands and insisted that he had not committed any crime. The officer then reached inside the vehicle, pried the door open, and forcibly extracted our client to the ground.
Upon being retained in the case, our attorneys immediately filed a Motion to Dismiss both the Loitering and Resisting charges.
We argued that, despite the unusual circumstances, the arresting officer lacked reasonable suspicion of Loitering or Prowling because there were no specific, articulable facts indicating that a threat to persons or property was imminent. In the absence of reasonable suspicion, the officer could not have been acting in the course of a legal duty so as to support the Resisting charge.
Outcome: Case Dismissed.
Contact an Attorney
Loitering or Prowling is a highly defendable charge, and no person should attempt to resolve their case without first consulting with an attorney. If you have been arrested, contact Hussein & Webber, PL for a free consultation. Our attorneys handle cases throughout the State of Florida.