Loitering and Prowling is Barely a Crime

girls walking.jpgThe general public is not always privy to the day-to-day shenanigans of Florida’s criminal justice system. Fear not, that’s why I’m here. Some charges, on their face, are simply sketchy. The charge of Tampering with Physical Evidence, for example, always seems a bit sketchy because it typically involves a police officer’s claim that some kid “ate” some weed (yes, kids eat their weed to avoid getting arrested for possessing it). So, instead of getting a misdemeanor weed charge, the kid is stuck with a felony tampering with physical evidence for chewing it up. Yes, I’ve seen cops force a mouth open WITHOUT GLOVES in order to swab a cheek to obtain evidence of drug residue. Yes, the “drug war” is alive and well. But, that’s a story for another day.

One of my favorite sketchy crimes is Loitering and Prowling. It just sounds iffy, doesn’t it? Loitering is one of those crimes frequently abused by Orlando police (and others, didn’t mean to single out the locals). For example, when cops see a black person wandering around in a nice white neighborhood–you know a loitering charge is close at hand. I’m just saying. But, I’m not the only one who thinks this charge is bogus–our appeals courts have come to the same conclusion. The real life example of the day comes to us in the case of S.K.W. v. State, 112 So. 3d 775 (2nd DCA 2013) (for you non-lawyers, the initials indicate a juvenile defendant–we’re not allowed to publish the full name of a juvenile…).

In S.K.W., a concerned neighbor saw two juvenile girls near a vacant house. The concerned neighbor saw the girls knock on someone’s door, talk to them, then move on to knocking on the door of the vacant home. When police arrived, the two girls were somehow walking on the second floor wrap around porch of the vacant house, from the back of the house toward the front. The officer told the girls to come down, and they did. The girls gave their correct names, and as much of their address information as they knew. The two didn’t have drugs or weapons, only cigarette lighters. The officer investigated the area for any signs of entry, but found none. Eventually, both girls were arrested for loitering or prowling.

The crime of loitering or prowling is controlled by Section 856.021(1) of the Florida Statutes, and the statute states that “It is unlawful for 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.” The most important aspect of this statute is its mention of “alarm” or “immediate concern“. These terms are essential, as appeals courts have found that “the mere suspicion of future conduct is insufficient”, there must be facts pointing to “an imminent threat” id. [Internal citations omitted]. By the way, if someone fails to identify themselves, flees, or tries to conceal something–the “alarm” element is proven and you’re well on your way to getting convicted of loitering.

So, if a loitering or prowling conviction hinges upon “immediate” and “imminent threats”, did we have that under the facts of S.K.W.? No. The court threw out the girl’s convictions, citing the following cases, among others: Bowser v. State, 937 So. 2d 1270, 1271-72 (Fla. 2d DCA 2006) (neither “possibly suspicious” circumstances of appellant’s looking into cars in dark parking lot nor officer’s discovery upon questioning that appellant “seemed to be taking a roundabout route home” created requisite concern to establish loitering or prowling); Woody v. State, 581 So. 2d 966, 967 (Fla. 2d DCA 1991) (officer’s concern for safety of persons or property upon seeing appellant hiding in bushes “was not supported by any articulable facts which could reasonably warrant such a concern . . . , [but] was based on pure speculation; there was nothing to suggest any independent criminal activity afoot”); E.F. v. State, 38 Fla. L. Weekly D652, D652-63 (Fla. 4th DCA Mar. 20, 2013) (State failed to meet burden regarding loitering-or-prowling elements based on suspicious behavior of juvenile, not from neighborhood and carrying large satchel and flashlight, walking slowly down street looking into carports and sides of houses in area where recent burglaries occurred); L.C. v. State, 516 So. 2d 95, 96-97 (Fla. 3d DCA 1987) (suspicious behavior in high-crime area and insufficient explanation not enough to elicit justified immediate concern for neighborhood safety necessary for loitering or prowling arrest). id.

Now, the appeals court could have stopped there. They did their job, followed the law, and overturned the loitering conviction. But, they kept writing. And, that’s where it gets interesting (if, a loitering case can ever be called such…). Here’s where they blast the statute itself:

The loitering or prowling statute “reaches the outer limits of constitutionality and must be applied with special care.” Carroll v. State, 573 So. 2d 148, 148 (Fla. 2d DCA 1991) (citing D.A. v. State, 471 So. 2d 147, 153 (Fla. 3d DCA 1985)). “Loitering has long been an offense that occasionally tempts good police officers to exercise power in a manner that is inconsistent with the standards of our free society.” Rinehart v. State, 778 So. 2d 331, 335 (Fla. 2d DCA 2000) (Altenbernd, J., concurring). The loitering or prowling statute must not be used as a “catchall provision to detain a citizen and prosecute [her] where there was insufficient basis to convict on some other charge.” Woody, 581 So. 2d at 967; accord Simms, 51 So. 3d at 1268. The officers had no basis to detain S.K.W. for attempted burglary, or even trespassing. See ยง 810.09(2)(b), Fla. Stat. (2011); S.N.J. v. State, 17 So. 3d 1258, 1259-60 (Fla. 2d DCA 2009) (trespass on unposted land does not occur until trespasser is warned to depart and fails to do so; officer was required to issue trespass warning prior to detention where no-trespassing signs not posted). id.

And there you have it. An appeals court telling it like it is. Loitering “reaches the outer limits of constitutionality”! One day, let’s hope they work up enough nerve to strike down the laws which force sex offenders to live under bridges because they cannot live within 1000 feet of a school–years after they’ve completed their sentence and treatment. I’m just saying…..