ANDREW MCGEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fourth District Court of Appeal reversed a probation revocation order, holding that the state failed to prove the defendant committed loitering and prowling under Florida law. The court found the suspicious circumstances suggesting a possible drug transaction were insufficient to establish the statutory requirement of conduct creating justifiable alarm for public safety, and the officer failed to comply with the mandatory identification requirement before arrest.
The court held that the state failed to prove the loitering and prowling charge because suspicious circumstances suggesting a possible drug transaction, standing alone, are insufficient to establish the required imminent threat to peace or public safety under the statute. Additionally, the state failed to prove that the officer complied with the statutory requirement under section 856.021(2) that the suspect be afforded an opportunity to dispel alarm by requesting identification and explanation of conduct.
[1] Suspicious circumstances indicating a potential drug sale are insufficient, on their own, to support a conviction for loitering and prowling.
[2] A conviction for loitering and prowling requires proof that the suspect's conduct occurred at a time or in a manner not usual for law-abiding individuals, under circumsta…
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Join FLexlaw to unlock all legal intelligence“The suspicious circumstances indicating that a drug sale might have occurred, taken alone, are not sufficient to support a conviction for loitering and prowling.”
Establishes that suspicion of drug activity does not satisfy the statutory elements of loitering and prowling, which requires evidence of imminent threat to public safety.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA police officer observed appellant walking from the side of a duplex residence, having a conversation with a woman pedestrian, showing her something …
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STONE, Judge.
We reverse an order revoking Appellant’s probation. The state failed to prove that Appellant committed the offense charged in the affidavit of violation, loitering and prowling.
The arresting officer testified that Appellant was observed walking from the side of a duplex residence and had a conversation with a woman pedestrian. Appellant showed her something in his hand and she gave him money. Based on his experience and training, the officer, watching through binoculars, believed a drug transaction had taken place. The woman then walked away. As the officer’s ear approached, Appellant appeared to hide the money under a car, where two five dollar bills were later recovered. At the time of the incident, other people were sitting on the porch of the duplex. There was no evidence that the officer ever asked Appellant what he was doing there.
Appellant was charged not with a drug offense, but only with loitering and prowling under section 856.021, Florida Statutes. The offending act, pursuant to the statute, must occur “at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021(1), Fla.Stat. (1993).
The record reflects no evidence of the required imminent threat to the peace or public safety. The suspicious circumstances indicating that a drug sale might have occurred, taken alone, are not sufficient to support a conviction for loitering and prowling. Cf. State v. Palmer, 543 So. 2d 400 (Fla. 4th DCA 1989); Springfield, v. State, 481 So. 2d 975 (Fla. 4th DCA 1986); Carroll v. State, 573 So. 2d 148 (Fla. 2d DCA 1991); D.A. v. State, 471 So. 2d 147 (Fla. 3d DCA 1985); Blanding v. State, 446 So. 2d 1135 (Fla. 3d DCA 1984).
Additionally, we note that here there also was no proof, required for conviction of the statutory offense, that the officer complied with the section 856.021(2) requirement that the suspect be afforded an opportunity to dispel alarm by requesting Appellant to identify himself and explain his presence and conduct. See Z.P. v. State, 440 So. 2d 601 (Fla. 3d DCA 1983); § 856.021(2), Fla.Stat. (1993).
We remand for further proceedings discharging the warrant and reinstating probation.
DELL and STEVENSON, JJ., concur.
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Citator
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Brown v. State, 684 So. 2d 265 (Fla. 4th DCA 1996)…ling, section 856.021, Florida Statutes (1995). The state witnesses were unable to point to specific and articulable facts to warrant the conclusion that either a breach of the peace or a threat to the public safety was imminent. See McGee v. State, 673 So. 2d 186 (Fla. 4th DCA 1996); Freeman v. State, 617 So. 2d 432 (Fla. 4th DCA 1993); In Interest of B.M., 553 So. 2d 714 (Fla. 4th DCA 1989); Boal v. State, 368 So. 2d 71 (Fla. 2d DCA 1979). The anonymous telephone tip and the general characteristics of the a…
Authorities Cited
- D.A. v. State, 471 So. 2d 147 (Fla. 3d DCA 1985)
- Ibarra v. State, 481 So. 2d 975 (Fla. 3d DCA 1986)
- Blanding v. State, 446 So. 2d 1135 (Fla. 3d DCA 1984)
- Z.P. v. State, 440 So. 2d 601 (Fla. 3d DCA 1983)
- Carroll v. State, 573 So. 2d 148 (Fla. 2d DCA 1991)
- Sapp v. State, 543 So. 2d 400 (Fla. 4th DCA 1989)
- State v. Palmer, 543 So. 2d 400 (Fla. 4th DCA 1989)