T.W., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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T.W., a minor, appealed his delinquency adjudication for loitering and prowling after a deputy encountered him near a closed pawn shop at 4 a.m. carrying a chainsaw. The court reversed, holding that the state failed to prove that T.W.'s conduct created an imminent threat to persons or property, which is required to support the loitering and prowling charge.
The court reversed T.W.'s delinquency adjudication, holding that while the state may have proved the first element, it failed to prove the second element. The state presented no evidence that T.W.'s conduct immediately threatened persons or property, and his mere possession of a chainsaw or failure to fully explain his actions does not satisfy the statutory requirement.
[1] To prove loitering and prowling, the state must establish that a person's presence, time, or manner is unusual for a law-abiding individual and occurs under circumstances…
[2] The behavior constituting loitering and prowling must imminently threaten the safety of persons or property.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To support a conviction for loitering and prowling, the state must prove that a person is (1) in a place, at a time, or in a manner unusual for a law-abiding individual (2) under circumstances that warrant a justifiable and reasonable alarm or concern for the safety of persons or property in the vicinity. The behavior must imminently threaten the safety of persons or property.”
Establishes the two-element test required for loitering and prowling, including the requirement that conduct must imminently threaten safety
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Join FLexlaw to unlock all legal intelligenceA Lee County sheriff's deputy observed T.W., a 17-year-old white male, walking westerly from beside a building next to a closed pawn shop at approxima…
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PER CURIAM.
T.W. appeals a delinquency adjudication for loitering and prowling, contending the state’s evidence was insufficient to support the charge. We reverse.
The evidence, when viewed in a light most favorable to the state, reveals the following facts. A Lee County sheriffs deputy was patrolling the Fort Myers Beach area around 4 a.m. on October 9, 1994. At the intersection of Estero and San Carlos Boulevards, he noticed a white male walking in a westerly direction from the side of a building next door to a closed pawn shop. The man, later identified as T.W., was carrying a black chain saw case. He was about one foot from the building when the deputy first observed him. T.W. then proceeded north, away from the building.
The deputy approached T.W. and asked what he was doing. T.W. stated he was walking to a friend’s house to cut trees. When the deputy questioned him about the early hour, T.W. responded that he had been dropped off in the area and was walking home. When the deputy asked what was in the case, T.W. opened it and displayed the chain saw. He told the deputy that he had just purchased the saw from an unknown person on the beach. The deputy testified that T.W.’s statements did not dispel his fear for the safety of the community, so he placed T.W. into custody.
The trial court denied T.W.’s motion for judgment of acquittal, adjudicated him delta- quent, and placed him on community control. T.W. then filed a timely notice of appeal.
To support a conviction for loitering and prowling, the state must prove that a person is (1) in a place, at a time, or in a manner unusual for a law-abiding individual (2) under circumstances that warrant a justifiable and reasonable alarm or concern for the safety of persons or property in the vicinity. The behavior must imminently threaten the safety of persons or property. E.B. v. State, 537 So. 2d 148, 149 (Fla. 2d DCA 1989). See also K.R.R. v. State, 629 So. 2d 1068 (Fla. 2d DCA 1994).
Even if we assume the state proved the first element, it did not prove the second element of loitering and prowling. The evidence only reveals that an officer saw T.W., then age 17, walking next to a pawn shop at 4 a.m. carrying a case which the officer recognized as containing a chain saw. T.W. did not attempt to flee, conceal himself, or hide the case. See K.R.R., 629 So. 2d at 1069. Even though T.W. carried a chain saw, the state presented no evidence that T.W.’s conduct immediately threatened persons or property in the area. The officer thought that T.W. may have stolen the chain saw, but his investigation of the pawn shop revealed that it had not been entered. Further, “loitering and prowling ‘is not directed at suspicious after-the-fact criminal behavior which solely indicates involvement in a prior, already completed substantive criminal act.’” Id. at 1070 (quoting D.A. v. State, 471 So. 2d 147, 151 (Fla. 3d DCA 1985)). We note that T.W. was not arrested for or charged with theft of the chain saw. Finally, T.W.’s failure to explain his possession of the chain saw is not an element of loitering and prowling. K.R.R., 629 So. 2d at 1070; E.B., 537 So. 2d at 150. Accordingly, we reverse T.W.’s delinquency adjudication.
Reversed.
SCHOONOVER, A.C.J., and PARKER and ALTENBERND, JJ., concur.
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Dajuan Donya Bowser v. State, 937 So. 2d 1270 (Fla. 2d DCA 2006)…required imminent threat to the peace, public safety, or property. The possibly suspicious circumstances of four people looking into cars in a dark parking lot was not sufficient to raise justifiable alarm of an immediate threat. See T.W. v. State, 675 So. 2d 1018 (Fla. 2d DCA 1996) (holding that a juvenile’s presence near a closed pawn shop at 4:00 a.m. while carrying a chain saw case did not create imminent threat to public safety); R.D.W. v. State, 659 So. 2d 1193 (Fla. 2d DCA 1995) (holding that three boy…
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Simms v. State, 51 So. 3d 1264 (Fla. 2d DCA 2011)…or take place “under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property....” § 856.021(1). A defendant’s explanation of his presence is not an element of the crime. T.W. v. State, 675 So. 2d 1018, 1019 (Fla. 2d DCA 1996) (citing K.R.R. v. State, 629 So. 2d 1068, 1070 (Fla. 2d DCA 1994)). Law enforcement officers may consider various circumstances in deciding whether alarm or concern is warranted: a person’s flight at an officer’s appearance…
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von Goff v. State, 687 So. 2d 926 (Fla. 2d DCA 1997)…loitering and prowling in a manner unusual for law-abiding citizens, there was no evidence introduced at trial indicating that appellant’s actions were creating an imminent threat to the safety of persons or property in the area. See T.W. v. State, 675 So. 2d 1018 (Fla. 2d DCA 1996)(holding that juvenile’s presence one foot from closed pawn shop at 4:00 a.m. while carrying chain saw case did not create imminent threat to the safety of persons or property in the area); R.D.W. (holding that juvenile’s and two o…
Previewing 3 of 9 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)
- K.R.R. v. State, 629 So. 2d 1068 (Fla. 2d DCA 1994)
- E.B. v. State, 537 So. 2d 148 (Fla. 2d DCA 1989)