BDK v. State, 97-05222.

• Decision Date: 20 October 1999
• Docket Number: No. 97-05222.,97-05222.
• Citation: 743 So.2d 1155
• Parties: B.D.K., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

743 So.2d 1155

B.D.K., a child, Appellant, v. STATE of Florida, Appellee.

No. 97-05222.

District Court of Appeal of Florida, Second District.

October 20, 1999.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellee.

Robert A. Butterworth, Attorney General, Tallahassee, and Jenny S. Sieg, Assistant Attorney General, Tampa, for Appellee.

DANAHY, PAUL W., (Senior) Judge.

B.D.K. appeals his adjudication of delinquency for loitering and prowling and escape. He argues that there was insufficient evidence to sustain his adjudication for loitering and prowling. He also argues that his arrest for loitering and prowling was unlawful; that the unlawfulness of the arrest is an affirmative defense to the charge of escape; and that the trial court should have granted his motion for judgment of acquittal on that ground. We agree and reverse the adjudication of delinquency.

At the adjudicatory hearing, Deputy Waulk of the Pinellas County Sheriffs Office testified that while on patrol on September 26, 1997, at about 2 a.m., he observed two male youths walking down the sidewalk in a mixed business/residential area. The youths were dressed in dark clothing and were carrying backpacks. They were doing nothing other than walking. Deputy Waulk made a U-turn in his patrol car after he passed the youths. As the deputy began to make the turn, B.D.K. took off running while the other youth continued walking. Deputy Waulk called for back up and chased B.D.K. in his patrol car. However, B.D.K. was not apprehended at that point. He was arrested around 7:30 to 8:00 that same morning at the house of a friend. The arrest was presumably based on information obtained from B.D.K.'s companion at the time B.D.K. fled. Detective Halle testified that he made the warrantless arrest for loitering and prowling based on information he received from Deputy Waulk. Detective Halle admitted that he had not observed any of B.D.K.'s actions earlier that morning. Detective Halle handcuffed B.D.K. and transported him to the Sheriffs Office for questioning in relation to some burglaries. In the Sheriffs Office parking lot, B.D.K. ran from the car toward an open field before he was apprehended by another deputy.

At the adjudicatory hearing, B.D.K. moved for judgment of acquittal on the grounds that his actions, as testified to by Deputy Waulk, did not constitute a prima facie case of loitering and prowling. B.D.K. cited several cases in support of this argument. B.D.K. also moved for a judgment of acquittal on the escape charge on the ground that the State's testimony established the affirmative defense that the arrest was unlawful. B.D.K. argued that his arrest was unlawful because it was made for a misdemeanor that did not occur in the presence of the arresting officer. He also argued that there was no probable cause to arrest him for loitering and prowling. In J.S.B. v. State, 729 So.2d 456 (Fla. 2d DCA 1999), we held:

The State must prove two elements to sustain a conviction for loitering and prowling. First the accused must be loitering and prowling in a manner not usual for law abiding citizens; and, second, the loitering and prowling must be under circumstances that warrant a justifiable and reasonable alarm or concern for the safety of persons or property located in the vicinity. As to the first element the State must prove more than vaguely suspicious presence. As to the second, it must prove conduct that is alarming in nature, indicating an imminent breach of the peace or a threat to public safety.

729 So.2d at 457 (citation omitted). The suspect's flight from the police may be considered in determining the presence of alarm or concern for the safety of persons or property. See § 856.021(2), Fla. Stat. (1997). In the present case, there was no evidence that B.D.K. was loitering or prowling in a manner not usual for law-abiding citizens. The juveniles were merely walking down the street. We conclude that the State did not prove the first element necessary to sustain the loitering and prowling charge. See W.A.E. v. State, 654 So.2d 193 (Fla. 2d DCA 1995) (fact that juvenile was walking on sidewalk at 2 a.m. in front of home where occupant had seen two males in the side yard "is in itself legally insufficient evidence of loitering and prowling"); K.R.R v. State, 629 So.2d 1068 (Fla. 2d DCA 1994) (evidence insufficient to sustain loitering and prowling conviction where juvenile walking on railroad tracks at 12:30 a.m.,...