THOMAS JAUDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the officers lacked a well-founded, articulable suspicion to stop the defendant for loitering and prowling, as required by the Fourth Amendment.
[1] An investigatory stop requires a well-founded, articulable suspicion of criminal activity; mere suspicion is insufficient.
[2] To establish the misdemeanor crime of loitering or prowling, the circumstances must warrant a justifiable and reasonable alarm or immediate concern for the safety of pers…
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Join FLexlaw to unlock all legal intelligenceOfficers, investigating drug activity complaints, observed the defendant drive back and forth, park, enter an apartment complex through a hole in the …
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BLUE, Acting Chief Judge.
Thomas Jaudon pleaded no contest to loitering and prowling, possession of cocaine, and possession of drug paraphernalia, reserving his right to appeal the denial of his dispositive motion to suppress. Jau-don argues that the stop was improper because the officers lacked a well-founded suspicion of criminal activity. We agree and reverse.
At the suppression hearing, Deputy Edom testified that he and three other uniformed law enforcement officers were investigating the area of the Fletcher Wood apartment complex based on complaints of drug activity and trespassing. The officers were parked in the parking lot of an apartment complex across the street from the rear of the Fletcher Wood apartments, watching a hole in the fence that ran around the north side of the apartments. Shortly after midnight, an officer saw Jaudon, a sixty-two-year-old man who lived in the area, drive back and forth several times. He then parked about five feet behind the unmarked police car. Jau-don crossed the street and walked through the hole in the fence. The officers observed Jaudon run through an abandoned building in the complex then towards an occupied building. The officers followed through the hole in the fence.
As they approached the occupied building, the officers saw Jaudon walking towards them. The officers stopped Jaudon in the parking lot so that he could dispel their suspicions about his conduct. According to the officers’ testimony, Jaudon consented to a weapons pat-down although Jaudon denied this. The pat-down revealed crack cocaine and a pipe.
Jaudon argues that the officers did not possess an articulable suspicion to stop him for loitering and prowling because they could not point to specific facts showing either an imminent breach of peace or threat to public safety as required by section 856.021, Florida Statutes (1995). During an investigatory stop,
a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. § 901.151, Fla. Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.
Popple v. State, 626 So. 2d 185, 186 (Fla.1993) (citation omitted). There are two elements required for the misdemeanor crime of loitering or prowling. First, the individual must “loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals” and, second, the circumstances must “warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021, Fla. Stat. (1995).
While we see record support for the trial court’s conclusion that Jaudon “prowled” in a time, place or manner not usual for law-abiding individuals based on the late hour and Jaudon’s suspicious entry through a hole in the fence, the officers did not articulate any facts to demonstrate a justifiable alarm or immediate concern for the safety of persons or property. The officers testified that they did not see Jau-don engage in any transactions, suspicious or otherwise, nor did they see him encounter any other individuals. Jaudon was actually leaving the complex and returning to his car when the officers stopped him.
Presence in a high crime area “does not, by itself, create a reasonable concern for the safety of persons or property.” Coleman v. State, 707 So. 2d 767, 768 (Fla. 2d DCA 1998) (suppressing evidence; no basis to stop for loitering and prowling when officer’s suspicion of drug transaction was not supported by articulable facts). In Woody v. State, 581 So. 2d 966 (Fla. 2d DCA 1991), this court reversed the denial of a motion to suppress evidence. Although the officer saw Mr. Woody take flight upon his arrival and hide in dense foliage, this court held that the officer’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 would reasonably warrant such a concern. Rather any such concern was based on pure speculation; there was nothing to suggest any independent criminal activity afoot.
581 So. 2d at 967. Because the State offered no evidence to show that the officers possessed anything more than a mere suspicion or speculation as to criminal activity or safety concerns for the persons and property in the vicinity, we hold that the stop was improper. Accordingly, we reverse the denial of the motion to suppress and remand for Jaudon’s discharge.
Reversed and remanded for discharge.
FULMER and DAVIS, JJ., Concur.
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McMASTER v. State, 780 So. 2d 1026 (Fla. 5th DCA 2001)…516 U.S. 1128, 116 S.Ct. 946, 133 L.Ed.2d 871 (1996); Ramos; Bailey v. State, 717 So. 2d 1096 (Fla. 5th DCA 1998). This rule has been applied by the courts many times to investigatory stops of individuals in automobiles. See, e.g., Jaudon v. State, 749 So. 2d 548 (Fla. 2d DCA 2000) (holding that evidence should have been suppressed where officers stopped defendant'in park [*1029] ing lot to “dispel their suspicions about his conduct”; defendant’s act of parking, walking through hole in fence, and running thr…
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Faulkner v. State, 834 So. 2d 400 (Fla. 2d DCA 2003)…rned because the area was “a high crime area and a high narcotics area.” The fact that the encounter occurred in such an area is not, by itself, sufficient to establish a reasonable concern for the safety of persons or property. See Jaudon v. State, 749 So. 2d 548, 549 (Fla. 2d DCA 2000); Coleman v. State, 707 So. 2d 767, 768 (Fla. 2d DCA 1998). Because of the lack of evidence to support Faulkner’s detention, and for the other reasons expressed in the majority opinion, I concur.…
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R.R. v. State, 137 So. 3d 535 (Fla. 4th DCA 2014)…tances 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. (2012). See also C.H.S. v. State, 795 So. 2d 1087, 1090 (Fla. 2d DCA 2001); Jaudon v. State, 749 So. 2d 548, 549 (Fla. 2d DCA 2000). Alarm is presumed under the statute if the defendant flees, conceals himself or any object, or refuses to identify himself when law enforcement appears. See C.H.S., 795 So. 2d at 1090. “Whether the inference drawn by police…
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
- Tedd J. Popple v. State, 626 So. 2d 185 (Fla. 1993)
- Woody v. State, 581 So. 2d 966 (Fla. 2d DCA 1991)
- Coleman v. State, 707 So. 2d 767 (Fla. 2d DCA 1998)