STATE OF FLORIDA, APPELLANT,
v.
TRACY CREMER AND NICK MCCARD, APPELLEES
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The state appeals an order suppressing physical items seized and statements made by the defendants following a warrantless arrest, arguing the arresting deputy had sufficient probable cause under the loitering and prowling statute.
The court held that the arresting deputy had sufficient probable cause to arrest the defendants for violating Florida's loitering and prowling statute.
[1] Probable cause for arrest under Florida's loitering and prowling statute exists when a defendant loiters or prowls in a place, at a time, or in a manner not usual for law…
[2] Circumstances supporting probable cause for loitering and prowling include inconsistent and implausible stories from suspects regarding their presence at an isolated scen…
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Join FLexlaw to unlock all legal intelligenceDeputy Suarez responded to a suspicious vehicle in a rural area known for criminal activity. He observed the vehicle with its lights off, hood up, and…
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COBB, Judge.
The state appeals an order suppressing the various physical items seized from, and the statements of, the defendants, McCard and Cremer, following a warrantless arrest. As conceded at oral argument by counsel for the appellees, the trial court’s determination was not predicated on resolution of a factual conflict in the testimony, but rather on the court’s interpretation and application of the case of State v. Palmer, 543 So. 2d 400 (Pla. 4th DCA 1989).
We find that the arresting deputy had sufficient probable cause to arrest for violation of Florida Statute 856.021; Florida’s loitering and prowling statute. This statute provides that a police officer may arrest if the following elements are found.
(1) That the defendant loitered or prowled in a place, at a time, or in a manner, not usual for law-abiding individuals;
(2) Such loitering or prowling was under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
On December 20, 1988, Deputy Suarez was notified at approximately 8:00 p.m. by radio that the agricultural crime unit was to respond to a vehicle with four subjects around it parked along Highway 527 in rural Orange County. It was dark when Deputy Suarez first approached the scene, but he saw a white Ford pickup truck with its headlights on. It was parked, with only three subjects standing around it. Suarez then passed the vehicle, proceeded down Highway 527 around a curve, and turned around to approach the vehicle again, this time from the south. As Suarez approached the vehicle this time, he noticed that its headlights were off, the hood was up, the passenger door was open, and no one was around the vehicle.
Suarez then proceeded back to the turnpike overpass, looking for the occupants of the truck to see if they were broken down and looking for help. He saw no one. He then turned around and went back to the parked truck. When he got to the truck, he ran the tag through the teletype. He then checked the interior and exterior of the open vehicle and observed footprints leading from the vehicle to a gate. The area around the truck consisted mainly of pasture and woods on both sides of the roadway. He also noticed, in addition to the footprints leading away from the truck, sand on the rungs of the gate leading into the pasture, and, on the other side of the gate, the footprints continued.
Deputy Kelly got to the scene shortly after Suarez made his observations. Kelly observed the keys in the ignition of the truck. He then entered the truck, started it, and drove it approximately 100 feet to the south, then backed it up to its original position, and turned it off. Kelly and Suarez determined, at that time, that there were no mechanical difficulties with the truck.
Suarez stated that there had been numerous poaching violations and a theft of $64,-000.00 worth of cattle in the area, and termed this area “trespass heaven.” He had also made previous arrests in the area, and knew of incidents on this particular property in the past.
Shortly after the deputies had tested the truck, the defendants, Cremer and McCard, approached the truck from the north. They stated that McCard was the owner of the truck, that it had broken down and they (McCard and Cremer) had walked to the Circle K in Taft to call McCard’s sister. Circle K is a convenience store that is several miles from the location of the truck. McCard and Cremer stated that they had been dropped off at the top of the overpass and, that when they had seen the deputies’ cars, they thought that the deputies were trying to steal the truck or the battery.
Suarez stated that he was suspicious of the defendant’s story because there are other convenience stores located between the site of the truck and the Circle K store in Taft where the defendants claimed to have gone to use the phone. He further observed that McCard and Cremer were sweating heavily, which he thought was unusual for such a cool night. Deputy Suarez also observed that Cremer had his hands shoved all the way down in his pockets, which the deputy thought was unusual. Suarez also noticed a reddish-colored substance on Cremer’s flannel shirt. He asked Cremer to remove his hands from his pockets, and when he did so, Suarez saw the same reddish-colored substance, consistent with that of blood, on Cremer’s hands. Suarez felt something was going on in this situation and was not sure if it was a murder, rape, or something else.
As Suarez was talking to defendants McCard and Cremer, Kelly walked north along the fence-line and found a third defendant, Groover (not involved in this appeal), who had been in the pasture approximately 300 to 500 feet from where Suarez, McCard and Cremer were standing. Gro-over told Kelly that he knew McCard and Cremer, but, when Kelly returned Groover to McCard and Cremer, they stated that they had never seen him before. Suarez then placed Cremer and McCard under arrest for loitering and prowling.
At that point in time, the deputies were confronted with suspects who told inconsistent and implausible stories in regard to the truck, their relationship to each other, and their presence at the isolated scene. One suspect was caught in the act of trespassing, one had the appearance of blood on his hands and shirt, and there was a missing suspect — the fourth man originally reported to be at the truck. Under these circumstances, there clearly was a reasonable concern on the part of the officers for the safety of persons or property in the vicinity, meeting the statutory criteria of section 856.021.1 The provisions of this statute were examined and found constitutional by the Florida Supreme Court in the seminal case of State v. Ecker, 311 So. 2d 104 (Fla.1975), cert. denied, Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975).
The Palmer case, relied on by the trial court, is factually distinguishable even if we agree with it. Therein, it was held that an officer’s observation of a lump in the suspect’s mouth, even though he was observed with a known drug dealer in an area known for drug activity, was insufficient to establish probable cause to arrest for loitering and prowling. That factual scenario is a far cry from the one in the instant case.
REVERSED AND REMANDED.
GOSHORN and PETERSON, JJ„ concur. . Furthermore, the extant facts clearly created probable cause for the arrest of Groover, Cremer and McCard for trespass since Groover was caught in the act of trespassing and professed to know Cremer and McCard, clearly indicating they had come to the area together in McCard’s truck. See State v. Carmody, 553 So. 2d 1366 (Fla. 5th DCA 1989); T.L.F. v. State, 536 So. 2d 371 (Fla. 2d DCA 1988).
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Juvon D. Pickett v. State, 922 So. 2d 987 (Fla. 3d DCA 2005)…combined with the totality of the circumstances can provide a sufficient basis for a finding of probable cause for an arrest. See State v. Clark, 721 So. 2d 1202 (Fla. 3d DCA 1998); State v. Scott, 641 So. 2d 517 (Fla. 3d DCA 1994); State v. Cremer, 563 So. 2d 817 (Fla. 5th DCA 1990); People v. Abner, No. 241569, 2004 WL 594948 (Mich.App. March 25, 2004) (probable cause to arrest when defendant is only person in house with abused child coupled with inconsistent stories to police). Moreover, in factually simil…
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Sierra v. State, 568 So. 2d 1338 (Fla. 4th DCA 1990)…on these specific, articulable facts and their training and experience, to warrant continuing their investigation. Cresswell v. State, 564 So. 2d 480 (Fla.1990); State v. Stevens; McCord v. State, 566 So. 2d 336 (Fla. 1st DCA 1990); State v. Cremer, 563 So. 2d 817 (Fla. 5th DCA 1990); Freeman v. State, 559 So. 2d 295 (Fla. 1st DCA 1990). Deputy Murphy noticed a knife within reach on the front seat while he was talking to the driver. The officers were concerned for their safety. They asked the passengers to s…
Authorities Cited
- State v. Ecker, 311 So. 2d 104 (Fla. 1975)
- Hicks v. Virginia, 423 U.S. 1019 (U.S. 1975)
- Rivera v. United States, 423 U.S. 1019 (U.S. 1975)
- T.L.F. v. State, 536 So. 2d 371 (Fla. 2d DCA 1988)
- State v. Carmody, 553 So. 2d 1366 (Fla. 5th DCA 1989)
- Sapp v. State, 543 So. 2d 400 (Fla. 4th DCA 1989)
- State v. Palmer, 543 So. 2d 400 (Fla. 4th DCA 1989)