Ferguson v. State Of Fla.
| Decision Date | 21 July 2010 |
| Docket Number | No. 2D09-276,2D09-326.,2D09-276 |
| Citation | 39 So.3d 551 |
| Parties | Renaldo R. FERGUSON, Appellant,v.STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
In these consolidated appeals, Renaldo R. Ferguson challenges in case number 2D09-276 his convictions and sentences in circuit case number CF08-5918-XX for possession of a firearm by a convicted felon, loitering and prowling, possession of cannabis, and possession of drug paraphernalia.
Ferguson challenges in case number 2D09-326 the revocation of his probation and resulting sentences in circuit court case numbers CF05-4414-XX and CF05-4426-XX on a total of ten offenses.
At issue in both appeals is the denial of his amended motion to suppress evidence on the new law violations in CF08-5918-XX. The new law violations were the basis for revoking his probation in CF05-4414-XX and CF05-4426-XX. Ferguson contends that the trial court erred in denying his amended motion to suppress because Officer Freeman did not have a reasonable suspicion of criminal activity to detain him or probable cause to arrest him for loitering and prowling. Our decision turns on the fact that even if the officer properly detained Ferguson, Officer Freeman did not have probable cause to arrest Ferguson for loitering and prowling and to then search him. We conclude that the trial court should have granted the amended motion to suppress the evidence obtained and statements made as a result of the arrest. Thus, we reverse the convictions and sentences in case number 2D09-276, and we reverse the revocation of probation and sentences in case number 2D09-326 and remand for Ferguson's probation to be reinstated.
Officer Freeman testified at the suppression hearing that she was on her way to respond to a noise complaint in her marked patrol vehicle when she observed Ferguson standing in the street about two blocks ahead of her. This occurred at 9:30 p.m. in a high-crime area in a residential neighborhood. She saw Ferguson stand in the middle of the road and then move quickly to the west. When she was about a block away, she saw him do the same thing again. When she drove past Ferguson, he was standing between the screen door and the front door of a residence, looking over his shoulder at her. He was not knocking on the door or trying to enter; he was just standing there with his hands down by his sides. Officer Freeman acknowledged that she did not know if he was trying to break into the house or conceal something from her. She decided to turn her vehicle around and make contact with Ferguson. While she was making a U-turn, she saw Ferguson step into the road a third time “and bend over to look under a tree” to see where she had gone. Ferguson watched her while he was moving from one point to another, and his movements seemed to coincide with her movements.
As Officer Freeman turned her vehicle around, Ferguson went back towards the residence door and then hurriedly went to a vehicle parked on the street and started the engine. Just as his car started to move, Officer Freeman turned on her overhead lights and told Ferguson to stop, and he did so. Officer Freeman then saw Ferguson lean over to the passenger side floorboard of his car. She told Ferguson to get out of the car because she did not know if he had a weapon. Ferguson appeared very nervous, and he told Officer Freeman that he was on probation and asked her to please let him go. In response to her question, he stated that he was on probation for burglary. Ferguson gave her an identification card, said he lived in Auburndale, and the identification card reflected that he lived in Auburndale. Officer Freeman advised Ferguson that he was acting quite strangely for a law-abiding citizen and asked why he was there. Ferguson told her that a friend, Tawanna, lived at the residence, that “they” were not home, and that he was checking their door for them. When asked, he told the officer that they did not ask him to check their door.
Officer Freeman had been speaking to Ferguson for twenty to thirty minutes when several individuals arrived, including Tawanna. Tawanna confirmed for the officer that she lived at the residence in question and that it was normal for Ferguson to visit there, although she had not asked Ferguson to check the door for her. When the officer described the behavior she saw Ferguson exhibit and asked Tawanna if that was normal behavior for him, Tawanna replied that it was not.
Officer Freeman testified that the discussions did not dispel her alarm as to why Ferguson was acting the way he was and why he was there, so she arrested him for loitering and prowling. She searched him and found an empty gun holster on his belt; a subsequent search of his vehicle revealed a pistol, cannabis, and paraphernalia. She testified that the search was incident to his arrest.
Section 856.021(1), Florida Statutes (2008), provides, “It is unlawful for any person to loiter or prowl in a place, 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.” However, prior to an arrest for loitering and prowling, the officer must give “the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct.” § 856.021(2).
The offense consists of two elements. The first is that Rucker v. State, 921 So.2d 857, 859 (Fla. 2d DCA 2006). The second element is that “the factual circumstances must establish that the accused's behavior is ‘alarming in nature, creating an imminent threat to public safety.’ ” Id. (quoting R.M. v. State, 754 So.2d 849, 850 (Fla. 2d DCA 2000)). “An officer must be able to articulate specific facts showing an imminent breach of the peace or threat to public safety.” Williams v. State, 674 So.2d 885, 886 (Fla. 2d DCA 1996). Under the statute, alarm is presumed “if the defendant flees, conceals himself or any object, or refuses to identify himself when a law officer appears.” C.H.S. v. State, 795 So.2d 1087, 1090 (Fla. 2d DCA 2001). To arrest Ferguson for the offense, Officer Freeman had to have probable cause that he committed loitering and prowling. See Rucker, 921 So.2d at 860 ().
Although Ferguson's conduct may have warranted Officer Freeman initiating...
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