Loitering or Prowling - Florida Statute 856.021

disorderly conduct

Florida State Statute 856.021 makes it unlawful to loiter or prowl in a place and at a time or in a manner not usual for non-criminals which create a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. To understand this definition, here are some real life examples.

  • Loitering or prowling
    • An individual looking into cars in a restaurant parking lot in the early hours of the morning. An officer approached the individual, but the individual walked away. The officer returned to the parking lot a couple minutes later and saw the same individual looking into cars. The individual ran and eluded the police. See Watts v. State, 463 So. 2d 205, 205 (Fla. 1985).
    • An individual hiding behind a bush on private property at 1:20AM ran when the police officer arrived, and the individual’s car had a stolen tag. See State v. Ecker, 311 So. 2d. 104, 110 (Fla. 1975).
  • Not loitering or prowling
    • A person at a warehouse at 9:30PM who appeared from the record to be there to strip a vehicle, but this was not enough to sustain a conviction for loitering and prowling. See id. at 111.
    • An individual in front of an apartment building was approached by the police and asked for identification, but he gave no credible or proper identification. See id.
    • Drug possession is not grounds for alarm. See Stephens v. State , 987 So.2d 182, 184 (Fla. 2d DCA 2008).
What the State Prosecutor Has to Prove to Convict a Defendant of Loitering or Prowling

The state prosecutor has to prove beyond a reasonable doubt:

(1) The defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; and

(2) Such loitering and prowling was under circumstances that warranted justifiable and reasonable alarm or immediate concern for safety of persons or property in the vicinity.

The police must have probable cause or reasonable suspicion by observing both elements of the crime. Furthermore, this crime is a misdemeanor which means the police have to witness it and not just rely on second hand information.

Not Usual for a Law Abiding Individual

“This 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. The first element requires more than a ‘vaguely suspicious presence.’ And a defendant's ‘response to the police pursuit cannot be used retroactively to support an imminent suspicion of criminal activity.’” Mills v. State, 58 So. 3d 936, 939 (Fla. 2d DCA 2011) (citations omitted).

Reasonable Alarm for Safety

Reasonable alarm for safety is really the “flavor” of the situation, the totality of the circumstances surrounding the incident.

When the law enforcement officer arrived:

  • Did the defendant run?
  • Was the defendant refusing to identify himself?
  • Was the defendant trying to hide something or himself?
Defenses

The statute requires a law enforcement officer to allow an individual to answer any concerns or alarms before being arrested, unless the individual flees. If the officer did not give you a chance to explain your presence before arresting you, then you cannot be convicted. Also, if you “froze up” and remained silent when the police officer was questioning you, you cannot be convicted if you had a true and believable explanation.

There are all sorts of reasons why non-criminals might be in weird places at weird times that might raise alarm. For instance, a person quietly lurking around a house at 2 AM might cause people to become alarmed, until you ask the individual and he says he is looking for his cat who just escaped.

Punishment

This crime is a second-degree misdemeanor which is punishable up to 60 days in jail and a $500 fine.

Contact The Law Office of Roger P. Foley, P.A.

Being convicted of this crime carries with it serious consequences. If you have been arrested and charged with this crime, call our law offices to schedule a free consultation to meet with one of our lawyers. Our West Palm Beach Loitering  Lawyers want to meet with you to find out the facts of the situation so we can create a strategy to defend your case. We understand that not every case can be won, but we won’t just roll-over and die. We will continue to fight to get you the best results by trying to persuade the prosecutor and judge to reduce your charges or sentence.

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