ARTHUR LEE WOODY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Arthur Lee Woody appealed his convictions for loitering and prowling, cocaine possession, and drug paraphernalia possession, challenging the lawfulness of the arrest underlying these charges. The court found that the arresting officer lacked probable cause to arrest Woody for loitering and prowling because the officer's concerns about potential robbery or kidnapping were based on pure speculation rather than articulable facts, and reversed the convictions.
The arrest for loitering and prowling was unlawful because neither of the two required elements were present: the officer lacked articulable facts showing Woody was loitering or prowling in a manner unusual for law-abiding individuals, and the officer's concern for public safety was based on pure speculation rather than circumstances warranting reasonable alarm or immediate concern for the safety of persons or property.
[1] An arrest for loitering and prowling requires that the circumstances warrant a reasonable alarm or immediate concern for the safety of persons or property in the vicinity…
[2] A generalized concern for public safety, without specific articulable facts suggesting independent criminal activity, is insufficient to establish probable cause for loit…
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Join FLexlaw to unlock all legal intelligence“No circumstance here suggests that either of the two elements of a proper arrest for loitering and prowling is present. The individual must loiter or prowl in a place, at a time, or in a manner not usual for law-abiding individuals and the circumstances must warrant a reasonable alarm or immediate concern for the safety of persons or property in the vicinity.”
States the legal standard for a valid loitering and prowling arrest and announces that neither element was satisfied
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Join FLexlaw to unlock all legal intelligenceSergeant Busbee entered a residential area known for drug activity at 6:40 p.m. and observed several males who fled. Woody hid in dense foliage thirty…
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DANAHY, Acting Chief Judge.
Arthur Lee Woody appeals from his convictions for loitering and prowling, possession of cocaine, and possession of drug paraphernalia. The convictions were entered upon his plea of nolo contendere in which he reserved his right to appeal the trial court’s denial of his motion to suppress. Woody contends that the arresting officer did not have probable cause to arrest him for the crime of loitering and prowling. We agree and, accordingly, reverse.
At the hearing on the appellant’s motion to suppress, Sergeant Busbee of the Lee County Sheriff’s Department testified that at 6:40 p.m. he was in a marked patrol unit and entered a residential area known for its drug-related activity. He noticed a gathering of several males who immediately took flight. One of them, the appellant, entered and hid himself in an area of dense foliage thirty to forty feet from any residence. The sergeant approached the appellant and asked him to come out and explain what he was doing. The appellant replied that he was “just hanging out.” This explanation did not satisfy the sergeant so he arrested the appellant for loitering and prowling. In the ensuing search incident to this arrest, a crack pipe containing cocaine residue was found on Woody’s person. The sergeant stated that he arrested the appellant because he was hiding in the bushes and the sergeant was concerned for the safety of passersby who might be robbed or kidnapped by the appellant. The previous week the sergeant had warned the appellant that he could go to jail for loitering and prowling in this area.
No circumstance here suggests that either of the two elements of a proper arrest for loitering and prowling is present. The individual must loiter or prowl in a place, at a time, or in a manner not usual for law-abiding individuals and the circumstances must warrant a reasonable alarm or immediate concern for the safety of persons or property in the vicinity. B.A.A. v. State, 356 So. 2d 304 (Fla.1978); State v. Ecker, 311 So. 2d 104 (Fla.), cert. denied sub nom., Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975); State v. Freeman, 542 So. 2d 483 (Fla. 2d DCA 1989); Chamson v. State, 529 So. 2d 1160 (Fla. 3d DCA), review denied, 539 So. 2d 476 (Fla.1988).
The sergeant’s concern for the potential robbery or kidnapping of a pedestrian if the appellant were allowed to remain in the bushes was not supported by any articulable facts which could reasonably warrant such a concern. Rather, any such concern was based on pure speculation; there was nothing to suggest any independent criminal activity afoot. Cf. B.A.A. (if officer believed defendant was soliciting prostitution by repeatedly approaching drivers stopped at intersection, officer should have arrested her for that instead of loitering and prowling); Freeman (nothing in description of activities preceding arrest was evidence of criminal activity where defendant was part of group gathered on street corner which dispersed at officers’ approach).
Contrary to the dictates of B.A.A., the sergeant here used the loitering and prowling statute, section 856.021, Florida Statutes (1989), as a catchall provision to detain a citizen and prosecute him where there was insufficient basis to convict on some other charge.
Reversed with directions to discharge the appellant.
LEHAN and PARKER. JJ., concur.
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Greyson Mills v. State, 58 So. 3d 936 (Fla. 2d DCA 2011)…ause they did not observe Mills committing both elements of the crime, they could not provide an objective, articulable justification for arresting him. See Simms, 51 So. 3d at 1268; Watts v. State, 583 So. 2d 792 (Fla. 2d DCA 1991); Woody v. State, 581 So. 2d 966 (Fla. 2d DCA 1991). In Woody, a police officer on patrol at 6:40 p.m. noticed a group of several men congregating in a residential neighborhood known for drug activity. Upon seeing the officer in his marked vehicle, the men fled. One of the men, Ar…
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P.R. v. State, 97 So. 3d 980 (Fla. 4th DCA 2012)…saw the juvenile defendant run through a field, the evidence was insufficient to support the defendant’s adjudication of delinquency for loitering an prowling, even though the defendant kept running after the officer called to him); Woody v. State, 581 So. 2d 966, 967 (Fla. 2d DCA 1991) (no probable cause to arrest defendant for loitering and prowling where defendant fled at the sight of police and hid in the bushes; officer’s concern for the safety of persons or property upon seeing appellant hiding in bush…
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Simms v. State, 51 So. 3d 1264 (Fla. 2d DCA 2011)…987). No one saw Mr. Simms crouching. Even if he did, our record does not support a conclusion that the officers had a reasonable concern for imminent threat to persons or property. Our precedent compels this result. For example, in Woody v. State, 581 So. 2d 966, 967 (Fla. 2d DCA 1991), we held that the officer’s concern for the safety of persons or property upon seeing appellant hiding in bushes “was not supported by any articulable facts which could reasonably warrant such a concern ..., [but] was based o…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities 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)
- B. A. A. v. State, 356 So. 2d 304 (Fla. 1978)
- Chamson v. State, 529 So. 2d 1160 (Fla. 3d DCA 1988)
- State v. Freeman, 542 So. 2d 483 (Fla. 2d DCA 1989)