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Loitering and Prowling Under Florida Law

Jacksonville, FL Loitering and Prowling Attorney

Under Florida law, Loitering and Prowling is a highly defendable charge that can often be resolved with a dismissal or without a technical conviction. In you have been charged with the crime of Loitering and Prowling in Florida, call an experienced Jacksonville criminal attorney to discuss your legal options. Contact Hussein & Webber, PL today for a free consultation.

What is “Loitering and Prowling” Under Florida Law?

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 crime of loitering or prowling in Florida, the prosecution must prove the following two elements beyond a reasonable doubt:

the accused loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals, and
the accused’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.

In determining whether such “alarm” or “immediate concern” is justified under the circumstances, a judge or jury may take into account whether the accused took flight upon the arrival police, whether the accused refused to identify himself, or whether the accused attempted to conceal himself or herself or any object he or she was carrying. If the accused 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).

Unless the accused 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. 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.

Under Florida law, Loitering or prowling is classified as a second degree misdemeanor, with penalties of up to sixty days in jail.

Defenses in Florida to the Charge of Loitering and Prowling

There are many legal and factual defenses that may be raised to challenge a prosecution for loitering or prowling. A police officer must have more than a vague suspicion about the accused’s presence. The conduct must come close to but fall short of the actual commission or attempted commission of a substantive crime and suggest that a breach of the peace is imminent. See Mills v. State, 58 So. 3d 936 (Fla. 2d DCA 2011). If there are no specific, articulable facts justifying a belief that the commission of a crime was imminent, then the officer lacks probable cause or reasonable suspicion to pursue, detain, or arrest the accused. Moreover, the prosecution can not, as proof of loitering or prowling, rely on the accused’s subsequent reaction to a police officer when the police officer’s attempted stop, detention, or arrest of the accused lacked reasonable suspicion or probable cause in the first place. See Hollingsworth v. State, 991 So. 2d 990, 992 (Fla. 4th DCA 2008).

The offense of loitering and prowling must be complete before any police action occurs and it must be observed by the officer’s themselves prior to making a stop or arrest. 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).

Furthermore, no person may be convicted of the offense if the law enforcement officer fails to give the accused an opportunity to identify himself and explain his or her actions. Where the prosecution fails to show that the officer complied with this procedure, a defendant must be acquitted (unless the officer was excused by the defendant’s flight or other qualifying circumstances).

Many loitering or prowling cases raise the more basic factual question of whether the unusual activity identified by the officer appeared to imperil the safety of persons or property. In this regard, Florida Courts have reversed convictions where police merely observed an unexplained gathering, or observed a suspect standing around a street corner in the manner of a drug dealer.

Example Case: Hollingsworth v. State, 991 So. 2d 990 (Fla 4th DCA 2008)

The case of Hollingsworth v. State provides an excellent illustration of the elements and legal principles at work in a Jacksonville, FL loitering and prowling case. In Hollingsworth, police officers were called in the evening to observe an area around closed businesses. The target area was known for drug activity. While parked at a distance, the officers observed the defendant walking along the street. When the defendant saw the officers, she turned away and walked quickly in the opposite direction, where she disappeared around a corner. The officers pursued the defendant and later found her crouched behind a car. After an additional pursuit on foot, police detained the defendant and subsequently arrested her for loitering and prowling.

Under these facts, the Fourth District held that, because the officers observed no conduct which raised a justifiable and reasonable alarm that a breach of the peace or threat to public safety was imminent, they lacked reasonable suspicion to make an investigatory stop. Mere presence in an area of closed businesses at a late hour was insufficient to raise an alarm of immediate threat to public safety. Moreover, the mere fact that the defendant fled and attempted to conceal herself after observing the police could not be "retroactively" used to support a suspicion of imminent criminal conduct.

If you have been charged with loitering or prowling in Jacksonville, FL, contact our Jacksonville Criminal Attorney a free consultation. Our loitering and prowling defense attorney has extensive experience handling these types of cases, and can advise you on the proper course of action to pursue in your case.

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