GARY L. PATMORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Patmore appealed his conviction for loitering and marijuana possession after pleading nolo contendere while reserving appellate rights. The court reversed the loitering conviction, finding the state failed to establish the required elements, but affirmed the marijuana possession conviction.
The court held that loitering charges require two elements: (1) prowling or loitering in an unusual manner, and (2) conduct that warrants reasonable concern for safety, which requires police to give the accused an opportunity to identify himself and explain his presence before arrest. The evidence did not satisfy these elements. However, the marijuana seizure was lawful because police had sufficient articulable suspicion for a Terry stop, and Patmore abandoned the bag, losing Fourth Amendment protection.
[1] A conviction for loitering requires that the accused be prowling or loitering in a place, at a time, or in a manner not usual for law-abiding citizens, and that there be…
[2] To establish the second element of loitering, police must provide an opportunity for the accused to dispel concerns by requesting identification and an explanation of pre…
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Join FLexlaw to unlock all legal intelligence“Two elements must be present in order to sustain a conviction for loitering. First, the accused must be prowling or loitering in a place, at a time, or in a manner not usual for law-abiding citizens. Second, there must be conduct on the part of the accused which warrants a justifiable and reasonable concern for the safety of persons or property in the vicinity.”
Establishes the two-part test required for a valid loitering conviction
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Join FLexlaw to unlock all legal intelligencePatmore was walking near 4th Street in St. Petersburg at 9:00 p.m. when he reacted unusually to a passing police car by turning around and walking hur…
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GRIMES, Chief Judge.
Gary L. Patmore pled nolo contendere to charges of loitering and possession of marijuana, reserving the right to appeal the denial of his motion to dismiss the loitering charge and the denial of his motion to suppress the marijuana. This appeal followed.
Appellant was walking near 4th Street in St. Petersburg at about 9:00 p. m. one evening when a police car followed by a police van passed him. He reacted peculiarly, turning around and walking hurriedly away. Eventually he broke into a run. The police were looking for suspects in an armed robbery, and because of appellant’s reaction to the car, they suspected that he might have been involved in the robbery. The officers in the van chased him and observed him drop a bag which was later found to contain marijuana. They arrested him and took him to the scene of the robbery where witnesses exonerated him. Nonetheless, the officers then charged him with loitering and possession of marijuana.
Appellant argues that the state failed to make a prima facie case for loitering. Two elements must be present in order to sustain a conviction for loitering. First, the accused must be prowling or loitering in a place, at a time, or in a manner not usual for law-abiding citizens. Second, there must be conduct on the part of the accused which warrants a justifiable and reasonable concern for the safety of persons or property in the vicinity. State v. Ecker, 311 So. 2d 104, 106 (Fla.1975). In order to establish the second element, the police must, prior to making an arrest, provide an opportunity for the accused to dispel any concern by requesting him to identify himself and explain his presence, unless the circumstances are such that it is impractical for the police to give him this opportunity. S. F. v. State, 354 So. 2d 474 (Fla. 3d DCA 1978); L. L. J. v. State, 334 So. 2d 656 (Fla. 3d DCA 1976); § 856.021(2), Fla.Stat. (1979). The statute is designed to proscribe conduct posing a reasonable threat to the public safety, but it may not be constitutionally applied as a catchall for vaguely undesirable conduct. See generally 28 U.Fla.L.Rev. 250 (1975). Appellant’s actions may have given the police reasonable grounds to suspect him of the robbery, but they did not satisfy the requisite elements for loitering. Accordingly, the court should have granted the motion to dismiss the loitering charge.
Though he has not pursued the matter on appeal, appellant did argue to the trial court that it should suppress the marijuana as the “fruit of the poisonous tree.” There is no merit in that contention. The police had sufficient articulable suspicions to stop appellant for questioning pursuant to Section 901.151, Florida Statutes (1979), and the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When he fled and abandoned the bag containing the marijuana, he lost his right to the Fourth Amendment protection of that bag. No search occurs when police retrieve property which a suspect has voluntarily abandoned in an area where he has no reasonable expectation of privacy. State v. Oliver, 368 So. 2d 1331 (Fla. 3d DCA 1979).
We reverse the judgment and sentence for loitering and affirm the judgment and sentence for possession of marijuana.
HOBSON and CAMPBELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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D.A. v. State, 471 So. 2d 147 (Fla. 3d DCA 1985)…the crime of loitering and prowling, i.e., unusual behavior, is not directed at suspicious after-the-fact criminal behavior which solely indicates involvement' in a prior, already completed substantive criminal act. For example, in Patmore v. State, 383 So. 2d 309 (Fla.2d DCA 1980), where a loitering conviction was reversed, the defendant was observed running from the police at 9:00 p.m. and, in the process, discarding a bag of marijuana on the street in the immediate vicinity of a recent armed robbery. His a…
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State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991)…weapon. The appellee’s decision to discard the cocaine was her own. Once she discarded it in a public area in the officer’s view, she no longer had a reasonable expectation of privacy in the tissue, and it was properly seized. See Patmore v. State, 383 So. 2d 309 (Fla. 2d DCA 1980). Accordingly, we reverse the trial court’s order granting the appellee’s motion to suppress and remand for further proceedings. RYDER, A.C.J., and PARKER, J., concur.…
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Chamson v. State, 529 So. 2d 1160 (Fla. 3d DCA 1988)…(sleeping defendant cannot threaten safety of persons or property), review denied, 464 So. 2d 556 (Fla.1985); see also B.A.A. v. State, 356 So. 2d 304 (Fla.1978) (approaching cars at intersection does not justify loitering arrest); Patmore v. State, 383 So. 2d 309 (Fla. 2d DCA 1980) (“peculiar” behavior upon approach of police fails to satisfy loitering arrest); Boal v. State, 368 So. 2d 71 (Fla. 2d DCA 1979) (walking in area late at night where recent robberies had occurred does not justify loitering arrest)…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- State v. Ecker, 311 So. 2d 104 (Fla. 1975)
- State v. Oliver, 368 So. 2d 1331 (Fla. 3d DCA 1979)
- L. L. J. v. State, 334 So. 2d 656 (Fla. 3d DCA 1976)
- S. F. v. State, 354 So. 2d 474 (Fla. 3d DCA 1978)