WILLIAM FREEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Freeman appealed his violation of probation conviction based on arrest for loitering and prowling. The court reversed, finding the arresting officer lacked probable cause for the warrantless arrest because the observed facts were insufficient under the statutory elements of the offense.
The court held that the officer lacked probable cause for the warrantless arrest because the observed facts—jumping a wall and walking—did not satisfy both statutory elements of loitering and prowling. For a misdemeanor like loitering and prowling, an officer must personally observe facts showing both that the defendant loitered or prowled in a suspicious manner AND that such conduct created justifiable concern for safety.
[1] A warrantless arrest for loitering and prowling requires that both elements of the offense be committed in the arresting officer's presence.
[2] Probable cause for a loitering and prowling arrest may only be based on a police officer's own observations.
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Join FLexlaw to unlock all legal intelligence“Because the offense of loitering and prowling is a misdemeanor, a police officer may only make a warrantless arrest for this offense if both elements of the crime are committed in his presence.”
Establishes the legal standard that warrantless arrests for misdemeanors require the officer to personally observe both statutory elements
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Join FLexlaw to unlock all legal intelligenceFreeman was arrested at 3:20 a.m. after police responded to a complaint about two black men carrying a burlap bag near parked cars in a residential co…
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PER CURIAM.
Freeman appeals his judgment, sentence and restitution order for violation of probation. We reverse.
While on probation, the State filed a corrected affidavit of violation of probation based on Freeman’s arrest for loitering and prowling. At a hearing on Freeman’s alleged probation violation, the arresting officer testified that he had been dispatched at 3:20 a.m. to investigate a complaint about two black men carrying a burlap bag and hanging around parked cars in a residential complex. When the arresting officer arrived, he saw two black men, one of whom was Freeman, jump over a six-foot high wall that surrounded the residential complex and land near a rear parking lot of a fast food restaurant. Both men ran when they saw the officer but stopped when he threatened to turn loose a police dog. Neither man was carrying a burlap bag when the officer approached them. Both men were arrested for loitering and prowling. Shortly thereafter, Freeman’s companion told the officer where to find the burlap bag, which contained gloves and a gun.
The offense of loitering and prowling has two elements: (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding citizens; and (2) 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. Section 856.021, Fla.Stat. (1991). Because the offense of loitering and prowling is a misdemeanor, a police officer may only make a warrantless arrest for this offense if both elements of the crime are committed in his presence. Chamson v. State, 529 So. 2d 1160, 1161 (Fla. 3d DCA), rev. denied, 539 So. 2d 476 (Fla.1988). Consequently, only a police officer’s own observations may be considered in determining whether probable cause existed to make a warrantless arrest. Springfield v. State, 481 So. 2d 975, 977 (Fla. 4th DCA1986). The officer must be able to point to specific and articulable facts, which, when taken together with rational inferences, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened. Id.
Here, the arresting officer merely saw two men jump a high wall and start walking towards the street. He did not see either man carrying anything prior to stopping them. These facts do not support a finding that the officer had probable cause to arrest Freeman for loitering and prowling. See Chamson, 529 So. 2d at 1161 (unlawful arrest for loitering where defendant found crouching in an alley next to hotel at 11:30 p.m. and failed to identify himself or explain his purpose for being in the area); D.A. v. State, 471 So. 2d 147, 151 (Fla. 3d DCA1985) (police lacked probable cause to arrest for loitering where defendant, who was standing next to van that was later determined to be stolen, ran from approaching officers); Boal v. State, 368 So. 2d 71, 72 (Fla. 2d DCA1979) (police did not have probable cause to arrest defendant for loitering where defendant was observed at 2:00 a.m. walking in a mixed business and residential area that had recent burglaries). Accordingly, we reverse the judgment, sentence and restitution order for violation of probation and remand to the trial court with instructions to reinstate Freeman’s probation.
REVERSED AND REMANDED.
GLICKSTEIN, C.J., GUNTHER, J., and WALDEN, JAMES H„ Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Simms v. State, 51 So. 3d 1264 (Fla. 2d DCA 2011)…n attempted consensual encounter.3 Moreover, because loitering and prowling is a misdemeanor, “only a police officer’s own observations may be considered in determining whether probable cause exist[s] to make a warrantless arrest.” Freeman v. State, 617 So. 2d 432, 433 (Fla. 4th DCA 1993) (citing Chamson v. State, 529 So. 2d 1160, 1161 (Fla. 3d DCA 1988)); Springfield, 481 So. 2d at 977); see also D.L.B. v. State, 685 So. 2d 1340, 1342 (Fla. 2d DCA 1996). Finally, we note that the loitering or prowling statu…
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Grant v. State, 854 So. 2d 240 (Fla. 4th DCA 2003)…1868, 20 L.Ed.2d 889 (1968)). Because loitering and prowl ing is a misdemeanor, both elements of the offense must be committed in the officer’s presence prior to arrest. See Erceg v. State, 697 So. 2d 572, 572 (Fla. 4th DCA 1997); Freeman v. State, 617 So. 2d 432, 433 (Fla. 4th DCA 1993). The evidence presented in this case does not show the presence of either element of the crime of loitering and prowling. While the officers witnessed three men walking in the area of the Farmer’s Market in the early hours…
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Artoine Jones v. State, 117 So. 3d 818 (Fla. 4th DCA 2013)…est. The officer must be able to point to specific and articulable facts, which, when taken together with rational inferences, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened. Freeman v. State, 617 So. 2d 432, 433 (Fla. 4th DCA 1993) (citations omitted). Because only the officer’s observations may be considered, the witnesses’ report of individuals knocking on their door cannot be considered. See Springfield v. State, 481 So. 2d 975, 978 (Fla. 4th DCA 19…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- D.A. v. State, 471 So. 2d 147 (Fla. 3d DCA 1985)
- Ibarra v. State, 481 So. 2d 975 (Fla. 3d DCA 1986)
- Chamson v. State, 529 So. 2d 1160 (Fla. 3d DCA 1988)
- Tropigas S. A. v. Efrain Sanchez, 368 So. 2d 71 (Fla. 3d DCA 1979)