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Loitering & Prowling in Florida

Are Loitering & Prowling the Same Offense?

Most people think that loitering and prowling are two different criminal acts that have two different legal repercussions. In addition, it is often thought that prowling is a much more serious offense than loitering. Both are false, and the offenses of loitering and prowling are codified in Section 856.021 of the Florida Statutes. According to the statute, “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 person or property in the vicinity.” The statutory language is a bit confusing, so it’s important to know what acts or circumstances may lead to a police officer accusing you of loitering/prowling. According to the statute, a jury make take any of the following as factors that could indicate justified alarm or immediate concern under the statute:

  • Fleeing from a law enforcement officer;
  • Refusing to identify yourself; or
  • Attempting to conceal yourself or any object.

Additionally, if the suspect flees or conceals themselves or an object they are holding, there will be a rebuttable presumption that the officer had justified ‘alarm’ or ‘concern’ for detention.

Charging

Upon a law enforcement officer suspecting you of loitering or prowling, they must “afford the person an opportunity to dispel any alarm of immediate concern which could otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct.” Law enforcement must have reasonable suspicion or probable cause by observing a defendant loitering or prowling in a place, at a time, or in a manner that a typical “law-abiding” individual would not. That loitering or prowling must be under circumstances that warranted justifiable and reasonable alarm or immediate concern for safety for the people or property within the area. If an individual satisfies both of these elements, they will be charged with a second-degree misdemeanor, punishable by up to 60 days imprisonment and a fine of up to $500. However, it is important to know that the Florida Supreme Court has held that idleness or vagrancy would not give law enforcement officers the authority to detain an individual in order to force them to explain their presence or give their identity.

An Example of Loitering or Prowling

A prime example of loitering or prowling is the case of Watts v. State. Watts was observed in the early evening hours of November 6, 1982, looking into different cars in a restaurant parking lot. When an officer approached him, he ran from the area and eluded a police search. Watts was found guilty of violating section 856.021 and was sentenced to sixty days in the county jail. However, just because someone may look suspicious, they are not necessarily guilty of loitering or prowling.

In the case of Worth v. State, Worth was in a warehouse area when he was stopped by three citizens who called the police. The citizens stated they were concerned about his presence in the area, however, the record indicated that Worth was in the area to strip a vehicle near one of the warehouses. Because the elements of the offense were not properly established by testimony of the officers since they did not observe the circumstances that justified the concern of the citizens, the evidence was not sufficient for a loitering or prowling conviction, and his conviction was overturned by the Supreme Court of Florida. 

A Recent Case of Loitering/Prowling

On August 25, a man in Volusia County was accused of exposing himself to a woman as he stood outside her bedroom window with his pants down was apprehended. He had knocked on her bedroom window and exposed himself at her sliding glass door. In addition to facing charges of loitering and prowling, he faces charges of indecent exposure, voyeurism, stalking, and possession of drug paraphernalia.

Loitering and Prowling Defenses in Florida

Idleness or Vagrancy

According to the Florida Supreme Court, the statute does not make idleness or vagrancy a criminal act, therefore an individual cannot be detained and questioned on mere ‘suspicious’ presence. Since law enforcement officers need to possess more than a vague suspicion about the individual’s presence in order to detain them, merely being present in an unusual area will not be sufficient to convict an individua of criminal loitering or prowling.

Lack of Imminent Threat or Disruption

In order to be detained for loitering or prowling, the suspect’s behavior has to approach, but not cross the line, of the commission of a criminal act, thereby ‘breaching the peace’. If this does not occur and there exists no imminent threat to property or people, any detention of a suspect will be considered unlawful.

Not Police Presence

Each element of the offenses requires the acts to be committed while a law enforcement officer is present so they can observe them before detaining them. If the report is anonymous, it will be considered insufficient for conviction.

Justification Present After Detention

The officer must justify the detention of the suspect with facts present at the time of observation, not after the fact or during the encounter. Therefore, the state cannot rely on facts that came to an officer later, or how the suspect reacted when in contact with the officer, as a basis for the conviction.

No Opportunity Given to Explain Presence

A law enforcement officer has to give the suspect an opportunity to explain or identify themselves to dispel any alarm or concern present in the mind of the officer, unless the suspect flees before the officer can make real contact.

Tallahassee Criminal Defense Lawyer

If you or a loved one have been charged with loitering or prowling, it is imperative you contact and retain an experienced Tallahassee criminal defense attorney as soon as possible to explore your case. Don Pumphrey and the team at Pumphrey Law Firm have years of experience defending against a wide variety of criminal charges and can ensure you or a loved one receive the best defense possible. Contact Pumphrey Law Firm today by calling (850) 681-7777 or sending an online message where you or a loved one can have an open and free consultation with a defense attorney in our team.

Written by Sarah Kamide

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