JEAN LUCIEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was arrested for loitering and prowling after an early-morning encounter with police, searched incidental to the arrest, and cocaine was found. The appellate court reversed, holding that the officer lacked probable cause for the misdemeanor arrest, making the seizure illegal and the cocaine evidence inadmissible as fruit of the illegal search.
The court held that the seizure violated the Fourth Amendment because the officer lacked probable cause to arrest for loitering and prowling. Nothing appellant did in the officer's presence justified alarm or concern for safety, and walking down the street early in the morning is not unusual for a law-abiding citizen. The cocaine was therefore the fruit of an illegal search and must be suppressed.
[1] A warrantless arrest for loitering and prowling requires an officer to observe the accused loitering and prowling in a place, time, or manner unusual for law-abiding citi…
[2] The failure to provide identification or a reasonable explanation for questioned activity are not elements of the crime of loitering and prowling; the criminal conduct mu…
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Join FLexlaw to unlock all legal intelligence“A police officer may make a war-rantless arrest for loitering and prowling if he or she sees an accused (1) loitering and prowling in a place, time or manner not usual for law-abiding citizens and (2) the circumstances warrant justification and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.”
Establishes the two-part test required for a lawful warrantless arrest under § 856.021
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Join FLexlaw to unlock all legal intelligenceAt 5:30 a.m., Ms. Martinez heard someone knocking on her house door, did not recognize the person, and called police. An officer found appellant walki…
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GARRETT, Judge.
Appellant pled nolo contendere to possession of cocaine reserving his right to appeal the denial of his motion to suppress.
The facts are undisputed. At 5:30 a.m. Ms. Martinez heard someone knocking on her house door. She did not recognize the person and called the police. When an officer responded he saw appellant about three houses away walking down the street. The officer stopped appellant and asked him if he had knocked on the door. Appellant said, “yes.” When asked why, appellant stated, “because I want to talk to somebody.” When asked to identify himself, appellant replied, “Fm the police,” which prompted the real police to arrest him for loitering and prowling. The officer conducted a body search incidental to the arrest and found the cocaine in appellant’s pocket.
A police officer may make a war-rantless arrest for loitering and prowling if he or she sees an accused (1) loitering and prowling in a place, time or manner not usual for law-abiding citizens and (2) the circumstances warrant justification and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. § 856.021, Fla.Stat. (1987). The failure to provide identification or a reasonable explanation for the questioned activity are not elements of the crime. The criminal conduct must be completed prior to any attempt to identify or explain. See State v. Rash, 458 So. 2d 1201 (Fla. 5th DCA 1984). When there is an arrest for loitering and prowling all elements of the misdemeanor offense must occur in the officer’s presence, T.L.M. v. State, 371 So. 2d 688, 689 (Fla. DCA 1979) (citing Kirby v. State, 217 So. 2d 619 (Fla. 4th DCA 1969)), and only a police officer’s own observation may be considered in determining whether probable cause exists to make the warrantless misdemeanor arrest. See Springfield v. State, 481 So. 2d 975 (Fla. 4th DCA 1986).
Nothing appellant did in the presence of the officer justified alarm or immediate concern for the safety of persons or property in the vicinity. The place, time or manner of the appellant walking down the street early in the morning was not unusual for a law-biding citizen. See Boal v. State, 368 So. 2d 71 (Fla. 2d DCA 1979).
We hold that appellant’s seizure occurred without probable cause to arrest for loitering and prowling and the cocaine was the “fruit” of the illegal search. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Accordingly, we reverse and remand for the trial court to grant the motion to suppress.
REVERSED AND REMANDED.
HERSEY, C.J., and WARNER, J., concur.
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P.R. v. State, 97 So. 3d 980 (Fla. 4th DCA 2012)…isdemeanor, “only the officer’s own observations may be considered in determining [*983] whether probable cause exists.” Springfield, 481 So. 2d at 977. Therefore, both elements of the crime must occur in the officer’s presence. See Lucien v. State, 557 So. 2d 918, 919 (Fla. 4th DCA 1990); but see Joseph D. Robinson, A Loitering and Prowling Primer, 71 Fla. B.J. 59, 60 (Nov.1997) (criticizing Luden in circumstances where the state presents testimony of the citizen who observed the defendant’s conduct). To sa…
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Artoine Jones v. State, 117 So. 3d 818 (Fla. 4th DCA 2013)…rds the street. He did not see either man carrying anything prior to stopping them. [And][t]hese facts do not support a finding that the officer had probable cause to arrest [the defendant] for loitering and prowling. Id.; see also Lucien v. State, 557 So. 2d 918 (Fla. 4th DCA 1990); A.D., 817 So. 2d at 1027. Here, the State did not establish by a preponderance of the evidence that the defendant was loitering or prowling. We therefore reverse the order revoking the defendant’s probation and remand the case…
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In the Interest of T.T. v. State, 572 So. 2d 21 (Fla. 4th DCA 1990)…and] such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” State v. Ecker, 311 So. 2d 104, 106 (Fla.1975); Lucien v. State, 557 So. 2d 918 (Fla. 4th DCA 1990); D.A. v. State, 471 So. 2d 147 (Fla. 3d DCA 1985). When there is an arrest for loitering and prowling all elements of the misdemeanor offense must occur in the officer’s presence. The failure to provide identification or a reason…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- Kirby v. State, 217 So. 2d 619 (Fla. 4th DCA 1969)
- Ibarra v. State, 481 So. 2d 975 (Fla. 3d DCA 1986)
- Tropigas S. A. v. Efrain Sanchez, 368 So. 2d 71 (Fla. 3d DCA 1979)
- T. L. M. v. State, 371 So. 2d 688 (Fla. 1st DCA 1979)
- State v. Rash, 458 So. 2d 1201 (Fla. 5th DCA 1984)
- Boal v. State, 368 So. 2d 71 (Fla. 2d DCA 1979)