D.S.D. v. State

• Decision Date: 19 December 2008
• Docket Number: No. 5D07-2789.,No. 5D07-2790.,5D07-2789.,5D07-2790.
• Citation: 997 So.2d 1191
• Parties: D.S.D., a Child, and J.T.D., a Child, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

997 So.2d 1191

D.S.D., a Child, and J.T.D., a Child, Appellants, v. STATE of Florida, Appellee.

No. 5D07-2789.

No. 5D07-2790.

District Court of Appeal of Florida, Fifth District.

December 19, 2008.

James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellants.

Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

D.S.D. and J.T.D. appeal adjudications of delinquency for loitering and prowling. We reverse.

Winter Park Police Officer Barber received a prowler report at about 3:30 a.m. in the area of Oakhurst Avenue and made contact with Appellants at a street corner two blocks from the vicinity of the report. Both wore all black. They did not flee when they saw the officer, but identified themselves and indicated they were looking for a friend named Ashley who was supposed to be waiting for them at the corner of Magnolia and Lakemont, about ten blocks away. Appellants thought they were lost and said they were going home, about two and a half miles away. Officer Barber arrested them because they did not know Ashley's last name, were not heading homeward as they indicated, were not on the street they were looking for, and based on the prowler report. Incident to arrest, he searched them and found a pair of cloth gloves in J.T.D.'s front pocket.

Appellants moved to dismiss the charges, arguing that the State failed to prove a prima facie case of loitering and prowling. The trial court denied the motion, adjudicated them delinquent, and sentenced each of the juveniles to six months' probation.

In order to obtain a conviction for loitering and prowling, the State must show (1) the accused was loitering and prowling 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 located in the vicinity. § 856.021, Fla. Stat. (2007); C.H.S. v. State, 795 So.2d 1087, 1090 (Fla. 2d DCA 2001). The gist of the first element is aberrant and suspicious criminal conduct that comes close to, but falls short of, the actual commission or attempted commission of a substantive crime. D.A. v. State, 471 So.2d 147, 151 (Fla. 3d DCA 1985). It does not, however, involve behavior that constitutes no threat of imminent criminal activity. Id. The second element requires a showing of circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property located in the vicinity. Alarm is presumed under the statute if the defendant flees, conceals himself or any object, or refuses to identify himself when a law officer appears. State v. Ecker, 311 So.2d 104, 106 (Fla.1975).

The elements of loitering and prowling were not met in this case. Appellants' presence in a residential neighborhood early in the morning, without more, does not support the charge. See V.E. v. State, 539 So.2d 1170 (Fla. 3d DCA 1989) (reversing loitering and prowling adjudication where juvenile and companion were merely walking down sidewalk when officer approached despite information twenty minutes earlier that youth had been looking in resident's window while companion tried the door).

A review of the cases interpreting the statute is instructive. Standing around behind a closed business late at night or early in the morning in an area noted for burglaries does not, without more, amount to the crime of loitering and prowling. C.H.S., 795 So.2d at 1091. Such conduct, even when joined with a recent report of criminal activity, does not suffice to prove loitering and prowling. J.S.B. v. State, 729 So.2d 456 (Fla. 2d DCA 1999) (insufficient evidence of loitering and prowling where officer responded to report of burglary in progress and found empty vehicle in parking lot and juvenile with three men walking around dirt pasture behind the building); K.R.R. v. State, 629 So.2d 1068 (Fla. 2d DCA 1994) (insufficient evidence of loitering and prowling where juvenile was found walking on railroad tracks at 12:30 a.m., near site of reported attempted car theft).

Officer Barber was justified in questioning Appellants when he discovered them wearing dark clothes, in the area of a 3:30 a.m. prowler report. During his encounter, however, no additional facts came to light to support an arrest for loitering and prowling. Even when an individual's conduct justifies an officer's alarm, the concern for an imminent breach of the peace may diminish because the loitering and prowling statute requires the officer to provide the person with the opportunity to dispel any alarm...