A loitering and prowling primer.

• Author: Robinson, Joseph D.
• Position: Florida

It has been this writer's experience that a clear understanding of Florida's loitering and prowling statute, F.S. [sections] 856.021,[1] is difficult to attain for prosecutors, defense attorneys, and police alike. I believe this is due at least partly to the fact that the language in the statute is vague (perhaps inevitably so), and that it establishes a reliance upon someone else's subjective judgment (an .alarm" or "concern") as to whether the crime has been committed. The loitering and prowling statute was held to be constitutional only through a somewhat tortuous reading of the statute by the Florida Supreme Court in State v. Ecker, 311 So. 2d 104 (Fla. 1975).

Thus, it is difficult to determine what constitutes a prosecutable loitering and prowling charge solely from the four corners of the statute. This article reviews the statute and the case law interpreting it and suggests a framework on which a set of facts can be analyzed to determine whether a loitering and prowling charge can be prosecuted.

Loitering and Prowling Analysis Framework

The elements in the framework for analyzing a loitering and prowling factual scenario are as follows:

1) A law enforcement officer sees or is told by a reliable hearsay source of .

2) Incipient criminal behavior by a subject ...

3) Whereupon the officer gives the subject a Miranda warning and asks the subject to explain his or her behavior, and then arrests the subject.

If you are familiar with the loitering and prowling statute, you now may be thinking that this analysis has left out nearly everything in the loitering and prowling statutory language, things like "time, place and manner" and "law-abiding individuals" and "justifiable concern for persons and property" and the like.[2] I believe the three elements listed above retain that which is essential and delete that which is extraneous to determining if a set of facts is prosecutable as a loitering and prowling charge.

Element 1

Let's look at the first element of this analysis:

A law enforcement officer sees or is told by a reliable hearsay source ...

The general rule in criminal cases is that a police officer cannot make a war rantless arrest for a misdemeanor offense that did not occur in the officer's presence; rather, the officer must go before a judge and obtain an arrest warrant.[3] Several appellate cases state that this rule applies in loitering and prowling cases.[4] An examination of the statutes and case law shows that the application of the general rule to loitering and prowling cases is an incorrect application for the following reasons.

F.S. [sections] 856.031, the statute appearing immediately after the loitering and prowling statute, provides an exception permitting an officer to "arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable such suspected loiterer or prowler to escape arrest." If the suspect's conduct occurred in the officer's presence, this statute would not apply, because the officer would not need a warrant to arrest the suspect. Therefore, it would be illogical to conclude that the legislature enacted this statute and then did not intend it to apply to the situation when the conduct did not occur in the officer's presence. If this were true, then F.S. [sections] 856.031 would be a nullity, i.e., of no legal effect at all. Those cases that hold that an officer may not make a warrantless loitering and prowling arrest where the defendant's conduct occurred outside of the officer's presence make no mention of F.S. [sections] 856.031 in discussing this issue.

This same line of cases consistently cites the Ecker case, the seminal case on loitering and prowling, as authority for the proposition that an officer may not make a warrantless arrest for a loitering and prowling that occurred outside of the officer's presence. However, a plain reading of Ecker shows that it stands for exactly the opposite. On page 111 of the Ecker opinion, referring to one of the cases (Worth v. State) consolidated for appeal with Ecker, it states:

[T]he record reflects that the defendant was in a warehouse at 9:30 p.m. He was stopped by three lay citizens, who called the police. The testimony at the trial relates primarily to statements made by the defendant after Miranda warnings had been given to him. The citizens who called the police and who were concerned about his presence in the area did not testify in the cause. There is a clear inference from this record that the defendant was in the area for the purpose of stripping an automobile located near one of the warehouses. The circumstances surrounding this incident should have been testified to by the individual citizens who observed the defendant's conduct. The elements of this offense were not properly established by the sole testimony of arresting officers who did not observe the circumstances that justified the concern for the safety of property by the lay citizens who made the call. The admissions and explanation of the defendant are not in and of themselves sufficient for conviction on this record. We must reverse the conviction, but in doing so stress that the circumstances inferred from this record would establish a violation of Section 856.021, Florida Statutes, if properly established.[5] (Emphasis added.)

Accordingly, in Z.P v. State, 440 So. 2d 601 (Fla. 3d DCA 1983), the Third District Court of Appeal suggested that if the state had produced at trial the citizen who reported the juvenile's suspicious conduct to the officer that a prosecution for loitering and prowling may have been successful.[6]

An example of a wrongly decided case on this issue is Lucien v. State, 557 So. 2d 918 (Fla. 4th DCA 1990), in which the Fourth District Court of Appeal threw out a loitering and prowling arrest on the following facts: At 5:30 a.m. a woman heard a knock on her front door and, not recognizing the person outside, called the police. The officer responding saw the defendant about three houses away walking down the street. Upon questioning, the defendant admitted knocking on the door and did so because he wanted to talk to somebody; when asked to identify himself by the police, he responded, "I'm the police." The court held that:

The failure to provide identification or a reasonable explanation for the questioned activity are not elements of the crime. The criminal conduct must be completed prior to any attempt to identify or explain.... [N]othing appellant did in the presence of the officer justified alarm or immediate concern for the safety of persons or property in the vicinity. The place, time or manner of the appellant walking down the street early in the morning was not unusual for a law-biding [sic] citizen.

The Lucien case is troubling because the Fourth District appears to completely disregard the testimony of the woman at home (it appears from the opinion that she did testify) in determining whether the defendant's behavior fell within the loitering and prowling statute. The court followed the line of reasoning that all elements of the offense must occur in the officer's presence and only the officer's own observations may be considered in determining whether a valid loitering and prowling arrest was made.

Element 2

... incipient criminal conduct by a suspect

The second element of the proffered analysis is the most important one to understand, i.e., what the courts consider to be "incipient criminal conduct." This encompasses that portion of the loitering and prowling statute prohibiting "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."

I believe that one should simply focus on what is "incipient criminal conduct" because a police officer (or anyone else) who witnesses this conduct will automatically have a "justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." This "reasonable alarm or immediate concern" is rarely an issue in the loitering and prowling appellate cases construing the statute, because if you have a suspect loitering or prowling in a way not usual for a law-abiding citizen in time, place, and manner, then the alarm or concern naturally follows.

The D.A. Case

The first case to use the phrase "incipient criminal behavior" was D.A. v. State, 471 So. 2d 147 (Fla. 3d DCA 1985). On page 151 the phrase is defined as "aberrant and suspicious criminal conduct which...