L.K.B. v. State, 95-2152

• Decision Date: 18 July 1997
• Docket Number: No. 95-2152,95-2152
• Citation: 697 So.2d 191
• Court: Florida District Court of Appeals
• Parties: 22 Fla. L. Weekly D1735 L.K.B., a child, Appellant, v. STATE of Florida, Appellee.

Page 191

697 So.2d 191

22 Fla. L. Weekly D1735

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

No. 95-2152.

District Court of Appeal of Florida Fifth District.

July 18, 1997.

James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and E. Paul Stanley, Assistant Attorney General, for Appellee.

EN BANC

PER CURIAM.

L.K.B., a juvenile, was found guilty of loitering or prowling ¹ and resisting, obstructing, or opposing a police officer while the officer was executing legal process or executing a legal duty without violence. ² He was adjudicated a delinquent and placed on community control for the maximum time permitted for these offenses, one and one-half years. He argues on appeal that the evidence at trial was insufficient to support his conviction for both offenses. We affirm.

The evidence at trial established that Robillard, manager of a Walgreen drugstore which was open all night, observed L.K.B. and another male companion lounging in front of the drugstore near the pay phone for several hours between 7:30 p.m. and midnight. They were talking loudly. A customer complained to Robillard about their "loud profanities." Robillard testified that because of L.K.B's and his companion's behavior, two customers requested that he escort them to their vehicles. Robillard made a 911 call to the police in order to have L.K.B. and his companion removed from the premises.

Officer Miller responded at approximately midnight. When he pulled into the parking lot, the juvenile and his companion were standing near the pay phone. The officer told them he needed to talk to them a few minutes. Both suspects instantly became aggressive. L.K.B. failed to identify himself. Within seconds, other individuals from a nearby motel came running across the street, yelling at the officer. Three or four other officers arrived and the crowd was subdued.

Officer Miller again addressed L.K.B., stating he needed identification from the juvenile in order to complete the trespass warning, so that he could remove him from the premises as requested by the manager. L.K.B. laughed at him and ran away, refusing to provide any identification. Miller commanded him to stop. L.K.B. continued to run and the officer chased and caught him. Miller testified that he was acting in the course of a lawful investigation when he approached L.K.B. and his companion at the pay phone. See State v. Dilyerd, 467 So.2d 301, 304 (Fla.1985) (stop justified when suspected trespassers were on private property and police had been alerted by authorized person to remove trespassers).

We believe that the evidence at trial was sufficient to sustain the loitering conviction. Under the provisions of the loitering statute, the elements of the offense are: (1) the defendant loitered in a place, at a time, or in a manner not usual for law-abiding individuals; (2) such loitering was under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. State v. Ecker, 311 So.2d 104, 106 (Fla.1975), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). It is not usual for law abiding juveniles to harass the patrons of a private business for some four hours into the late evening to the extent that two such patrons feel the need for management to escort them to their cars, and management itself is finally forced to put in an emergency call to the police to remedy the situation. See § 856.021, Fla. Stat.; State v. Ecker. Moreover, among the statutory factors that may be considered are flight at the approach of a law enforcement officer and refusal of the suspect to identify, both factors present in this case. See § 856.021(2), Fla. Stat.

As indicated, we also affirm the conviction for resisting a police officer who is performing a legal duty--i.e., conducting a valid Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and § 901.151, Fla. Stat. (1995). The officer in this case had an articulable suspicion that L.K.B. was about to commit, and perhaps had already committed, the offense of assault against customers of the drugstore. The fact that the concern of the store manager focused primarily on loss of profits does not alter the fact that he called the police on an emergency basis because L.K.B. and a companion were terrorizing store customers to the extent that two had received escorts to their cars in what management described to the police as "an ongoing ordeal." L.K.B.'s conduct had lasted over a four to five hour period with complaints from customers about profanities. The investigating officer testified that he thought that L.K.B. was about to commit a robbery on a person coming out of the store. If the facts did not reasonably justify that suspicion, they at least justified the suspicion that an assault was imminent. Under these circumstances, the officers were authorized to detain L.K.B. and ascertain his identity. State v. Pye, 551 So.2d 1237, 1239 (Fla. 1st DCA 1989). Flight from that detention was unlawful. M.C. v. State, 450 So.2d 336 (Fla. 5th DCA 1984).

AFFIRMED.

COBB, W. SHARP, GOSHORN, HARRIS, PETERSON and ANTOON, JJ., concur.

GRIFFIN, C.J., dissents with opinion.

THOMPSON, J., dissents with opinion, with which GRIFFIN, C.J., and DAUKSCH, J., concur.

GRIFFIN, Chief Judge, dissenting.

I agree with Judge Thompson's response to the majority's application of the loitering and prowling statute to the appellant's conduct in this case. The arresting officer offered no testimony that he observed any behavior on appellant's part at all, good or bad, "usual" or "unusual." Certainly, he never observed what the majority describes as "harassing patrons." He testified only that he had seen L.K.B. and his companions at the location earlier when he was on patrol and, when he arrived at the request of the manager, they were "at the phone." When the officer told them he needed to talk to them because he had been called by the manager, another person, not appellant, became "aggressive" and "ran his mouth," but appellant said nothing. The defendant had never even been asked to tone down his behavior, nor was he ever asked to leave the premises. The only evidence of the conduct of these young men came from the store manager, who testified that he observed nothing that caused concern for store or customer safety:

STATE ATTORNEY: Were you concerned for the store safety or the customers' safety? Were you concerned these individuals might harm customers?

MANAGER: No, not really. I just--I'm concerned about the profitability of my business, and individuals hanging outside the pay phone does not concur with proper business techniques that we like to have at Walgreens or any place.

Apart from the fact that the officer observed no harassing of patrons and that there is no other competent evidence of "harassing patrons," there is no support anywhere in Florida jurisprudence for the notion that appellant's behavior in the parking lot of an open business constituted the crime of "loiter[ing] ... in a place, at a time or in a manner not usual for law abiding individuals" under circumstances that warrant a "reasonable alarm or immediate concern for the safety of persons or property.... " The officer knew that; he did not arrest appellant for "loitering and prowling" but for "resisting officer without violence." The majority's conclusion that bad behavior in a public place constitutes the crime of "loitering and prowling" because it isn't the way "law-abiding" citizens "usually" behave is exactly contrary to the supreme court's narrow interpretation of the statute when they upheld its constitutionality in State v. Ecker, 311 So.2d 104 (Fla.1975). There's no evidence of any words spoken by appellant tending to threaten anyone or cause a breach of the peace nor any evidence that any citizen's way was obstructed. The patrons may or may not have felt harassed, but behaving in a way that makes people uncomfortable or nervous is not an element of the crime of loitering and prowling. I would reverse the conviction for that crime.

As for the majority's conclusion that a valid Terry stop supports the "resisting arrest without violence" conviction, there is also no evidence in this record that would support a Terry stop. The best the arresting officer could come up with was:

PUBLIC DEFENDER: Officer, what crime did you think was about to occur?

OFFICER: Didn't know if they possibly were going to steal something from the store or commit a robbery on a person coming in and out of the store.

PUBLIC DEFENDER: What information led you to believe that crime was about to occur?

OFFICER: Well, just them loitering around in the parking lot.

Hanging out in the parking lot of an open business near a telephone furnished for the use of the public, even over the course of a three hour period, does not produce a constitutionally valid suspicion of criminal activity, regardless of how much that conduct annoys the customers. There is nothing in this record to suggest that appellant had any interaction whatsoever with either the manager or any of the store's customers, much less threaten them. The manager testified the appellant remained by the phone at all times. He never even heard profanity, only "loud conversation." No customer testified and the most the manager could say was that a patron told him about profanities. As for the "emergency" 911 call, the manager testified that he could not remember if he used 911 but if he did, it was because the store was very busy and he didn't have the means to go to the office to get the non-emergency number.

The majority's post hoc determination that the officer had an articulable suspicion of an assault justifying a Terry stop, thereby making it a crime when L.K.B. ran from him creates a disturbing floor for investigative stops, since...