McClamma v. State

• Decision Date: 09 May 2014
• Docket Number: No. 2D12–3523.,2D12–3523.
• Court: Florida District Court of Appeals
• Parties: Alexander W. McCLAMMA, Appellant, v. STATE of Florida, Appellee.

138 So.3d 578

Alexander W. McCLAMMA, Appellant,

v.STATE of Florida, Appellee.

No. 2D12–3523.

District Court of Appeal of Florida, Second District.

May 9, 2014.

Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Alexander W. McClamma appeals his judgments and orders of probation entered as a result of a negotiated plea after the denial of his dispositive motion to suppress. We reverse. Mr. McClamma's case demonstrates that a valid arrest for loitering or prowling typically occurs in combination with a Terry¹ stop for a crime that is occurring or is about to occur. But loitering or prowling is not the crime of attempting to commit some other crime. Under the modern statute, a defendant must intentionally commit conduct that the defendant knew or with substantial certainty should have known would cause an objectively reasonable observer to have reasonable alarm or imminent concern that the defendant's conduct was creating a safety risk for person or property in the vicinity. See§ 856.021, Fla. Stat. (2011). This conduct must occur in the presence of the officer who orders the stop. See D.L.B. v. State, 685 So.2d 1340, 1342 (Fla. 2d DCA 1996); Freeman v. State, 617 So.2d 432, 433 (Fla. 4th DCA 1993).

A stop that is only for loitering or prowling must almost always be an arrest for that offense and rarely, if ever, can be justified as a Terry stop for this misdemeanor. There are often times when an officer may engage in a consensual encounter prior to making a loitering arrest or may even conduct a welfare check prior to an arrest for loitering, but the facts of this case do not involve such a preliminary encounter. The sheriff's deputy who ordered the stop of the taxi cab in which Mr. McClamma was a passenger was not performing a Terry stop and did not have an objectively reasonable belief, based on specific and articulable facts, to conclude that the misdemeanor of loitering or prowling had occurred in his presence. See B.A.A. v. State, 356 So.2d 304 (Fla.1978).

I. THE FACTS

At approximately 1:30 a.m. on September 1, 2011, a Pinellas County deputy sheriff was dispatched to a trailer park to handle a report of a suspicious person. The woman who had called in the report told him that she had seen a shirtless, bushy-haired, light-skinned, African–American, male teenager walking suspiciously in the trailer park, which had primarily older residents. The woman had seen the teenager walking between the trailer park office and one of the trailers. She did not report seeing any activity other than a teenager walking late at night. At no time during the events described in this opinion did anyone report any burglary, theft, or other crime in the trailer park. The deputy called in a second deputy with a dog, but the dog could not follow a scent.

There had been a series of burglaries in a nearby commercial area in which other deputies were conducting a stakeout. As a result, the first deputy issued a BOLO for the nearby deputies to be alert for the shirtless teenager. About twenty minutes later, those deputies briefly saw someone run across a street. They thought the person fit the description in the BOLO. They attempted to catch that person without success. The deputies used a dog to track a scent to a nearby residential neighborhood but not to a specific house. A deputy who had seen the person run across the street remained in an unmarked car to observe the neighborhood.

About thirty minutes later, the deputy waiting in the unmarked car observed Mr. McClamma, a tall, tan, white teenager, running from a house to a taxi. He was not wearing a shirt and his clothing otherwise generally matched the description of the African–American teenager who had been seen walking in the trailer park. Accordingly, the deputy arranged for a marked patrol car to stop the taxi. A corporal was involved in the stop. He approached the passenger side of the taxi and immediately questioned Mr. McClamma about what he was doing and why he was in the neighborhood. There is no evidence that he provided a Miranda² warning to Mr. McClamma prior to this investigation. After questioning him, the deputy ordered Mr. McClamma out of the taxi. He frisked Mr. McClamma for officer safety and found a marijuana pipe in a pants pocket, although he admitted that he had no reasonable suspicion that Mr. McClamma was armed. The corporal concluded that Mr. McClamma had not dispelled alarm and arrested him for loitering or prowling. He took a backpack from Mr. McClamma, which was at some point searched. The deputy, who eventually read Mr. McClamma his Miranda rights prior to a more extensive interview, explained that the pack had been searched before he arrived. The search of the pack revealed illegal contraband. During the interview with the deputy, Mr. McClamma apparently admitted to breaking into several cars in the neighborhood.

Ultimately, Mr. McClamma was charged as an adult with trafficking in hydrocodone, possession of a controlled substance, three counts of burglary of a conveyance, possession of paraphernalia, and loitering or prowling. Mr. McClamma filed a motion to suppress, challenging his stop. When the trial court denied that motion at the conclusion of an evidentiary hearing, Mr. McClamma entered into a negotiated plea. He agreed to adjudications of guilt for the charged offenses in exchange for terms of probation as a youthful offender, which included drug treatment. When imposing the agreed-upon sentence, the trial court determined that the motion to suppress was dispositive of the charges. Mr. McClamma appealed.

II. INTRODUCTION TO THE LEGAL ANALYSIS IN THIS CASE

The trial court's decision to deny the motion to suppress hinges on whether the deputy had lawful authority to stop the taxi. The stop of this vehicle, of course, could not be a consensual encounter. The State has never argued in this case that the deputy had a reasonable suspicion, justifying a Terry stop, for a crime other than loitering or prowling. Thus, the dispositive issues in this case are whether the deputy had either a lawful basis to arrest Mr. McClamma when he pulled over the taxi or perhaps whether he had a valid basis for a Terry stop for loitering or prowling at that time. In this appeal we accept the historic facts as found by the trial court but review the legal issues de novo. See P.R. v. State, 97 So.3d 980, 982 (Fla. 4th DCA 2012). As a matter of law, we conclude that this stop was unauthorized.

In the 1970s, when Florida made a concerted effort to preserve a constitutionally legitimate misdemeanor of loitering or prowling, the legislature created a statute with an unusual and complex criminal intent and with an odd defense. As a result, the statute can be particularly difficult for law enforcement officers to understand and enforce. To explain why the stop in this case was not authorized, we will first examine the creation of the statute and limitations that the supreme court immediately placed on it to assure its constitutionality. We will then examine the criminal intent required for this offense and the basis for the “defense” of “dispelling alarm.” Next, we will explain why the deputy had no authority to stop the taxi to arrest Mr. McClamma for loitering or prowling. Finally, we will explain why the deputy had no authority to conduct a Terry stop for loitering or prowling in this case.

III. A BRIEF HISTORY OF LOITERING OR PROWLING: A MISDEMEANOR ON THE “OUTER LIMITS” OF CONSTITUTIONALITY

Prior to 1972, Florida had a statute that regulated “rogues and vagabonds,” “common night walkers,” “habitual loafers,” and other “vagrants” on our public streets. See§ 856.02, Fla. Stat. (1971). In the early 1970s, the United States Supreme Court began striking down similar ordinances for vagueness and overbreadth. See Palmer v. City of Euclid, Ohio, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971).

The Florida Legislature responded with the modern loitering or prowling statute, which was based on the Model Penal Code of the American Law Institute. Ch. 72–133, at 414–16, Laws of Fla.; Model Penal Code § 250.6. Except for an amendment to achieve gender neutrality,³ the current law is the same as the law enacted in 1972. It provides:

(1) 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.

(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford 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. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.

§ 856.021.

Subsection (1) of the statutes creates the substantive requirements of the offense,which are normally described as having two elements: (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; and (2) such loitering or prowling was...