Many folks live with a constant fear of police abuse. From what I’ve seen over the years, that fear is completely understandable, depending upon location, and economic standings. And, there are several different ways law enforcement abuse we citizens. Some ways are subtle, like the “I smell the odor of cannabis, so I’m going to search your car” routine. This has never happened to my white 98 year old grandpa, but it does happen to my teenage black clients. Now, part of this may be due to the fact that my grandpa doesn’t smoke weed (that I know of). And also, it is shocking (even to me) that my grandfather is still driving at his age (but the DMV renewed his license through age 103–so go figure). Aside from the “I smell weed” searches, I also see plenty of abuse via loitering and prowling arrests. Most judges are fairly suspicious of loitering cases, and they have good reason for such concern. One appeals court put it this way:
“Because of its potential for abuse, the loitering and prowling statute must be applied with special care. It cannot be emphasized enough that the loitering and prowling statute is not to be used as a “catchall” provision whereby police may arrest citizens where there is no other basis which would justify their detention. Instead, the proper application of this statute requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property.” Mills v. State, 58 So. 3d 936, 939 (Fla. 2d DCA 2011).
So, armed with a bit of healthy skepticism, let’s take a look at a recent loitering and prowling case of C.C. v. State. 137 So. 3d 466 (Fla. 4th DCA 2014).
It’s 10am on a school day, when a City of Hollywood police officer notices a few juveniles walking down the street. This officer knows C.C., and thus knows that he should be in school. The officer loses site of them, but broadcasts a “Be on the lookout” (BOLO) for two “black males both wearing black t-shirts, carrying book bags, walking in the area.” Id at 467. Yes, wearing black shirts in the hot Florida sun is merely stupid, but not a crime, and these officers were not the fashion police.
Once the juveniles saw the officers, they dropped their backpacks in some bushes, and then hid behind a truck. This sort of trickery, in the bright Florida sunshine, was no match for the super sleuthing skills of these officers. They found the kids immediately, and placed them under arrest because they were “hiding their backpacks and concealing themselves.” Id. A search of the backpacks revealed a lug wrench/prying tool. The defendant was charged with possession of burglary tools, and loitering and prowling (the burglary tools count was later dropped).
Now, we all know that loitering and prowling is one of the most bogus crimes remaining on the books, but let’s review the two elements: “(1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals, and (2) the loitering was under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” Id at 468. Remember, both of these conditions must be observed by the police before an arrest can be made. In this case, the dropping of a backpack might be evidence that the juvenile is playing hooky, but it doesn’t rise to the level of “reasonable alarm or immediate concern for the safety of persons or property in the vicinity”.
C.C. was found guilty of loitering and prowling at trial. At C.C.’s trial, the prosecutor introduced into evidence the prying tool found in the backpack. The defense attorney’s objection to this evidence was overruled, but the appeals court found the prying tool inadmissible, ruling that “the items found in Defendant’s backpack after his arrest should not have been admitted or considered by the trial court because the offense of loitering and prowling must be completed prior to any police action. . . .Accordingly, the items found in Defendant’s backpack after he was placed under arrest were not relevant to prove the crime charged – namely, loitering and prowling.” id.
And, even if the appeals court ignored the admission of the prying tool into evidence, C.C.’s loitering conviction still needed to be overturned, because the state could not prove “the alarm or immediate concern” element of this crime. It is the “alarm or immediate concern” clause that most police do not satisfy. Unfortunately, some officers just do not understand the law on this (or, maybe they do, and I don’t know which is worse…).