State v. Cortez, 97-1369

• Decision Date: 28 January 1998
• Docket Number: No. 97-1369,97-1369
• Citation: 705 So.2d 676
• Parties: 23 Fla. L. Weekly D324 The STATE of Florida, Appellant, v. Jose M. CORTEZ, and Alexis Rodriguez, Appellees.
• Court: Florida District Court of Appeals

Page 676

705 So.2d 676

23 Fla. L. Weekly D324

The STATE of Florida, Appellant, v. Jose M. CORTEZ, and Alexis Rodriguez, Appellees.

No. 97-1369.

District Court of Appeal of Florida,

Third District.

Jan. 28, 1998.

Robert A. Butterworth, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellees.

Before SCHWARTZ, C.J., and COPE and GERSTEN, JJ.

COPE, Judge.

The State appeals an order suppressing evidence. As there was no Fourth Amendment violation, we reverse.

I.

A neighbor observed defendants Jose Manuel Cortez and Alexis Miguel Rodriguez back their car into the victim's enclosed carport. The homeowner victim was at work. While one defendant stood by the car, the other defendant peered into a window while calling out to ask if anyone was home. The defendants were positioned so that they were partially screened from the street by landscaping and a wall. The neighbor did not recognize the defendants and called the police. When the defendants saw the neighbor watching, they jumped into the car and fled.

A few minutes later, Officer Ramos arrived and he interviewed the neighbor. Upon looking in the carport, he found pry marks on the door leading from the carport into the house. He could not determine from looking, however, whether the pry marks were fresh. The officer sent a be on lookout ("BOLO") announcement regarding a possible burglary, with a description of the car and a general description of the occupants.

A few blocks away, the defendants ran out of gas. At about 1:30 p.m., approximately twenty minutes after the BOLO announcement, a different officer, Officer Murias, noticed the defendants' car alongside the road, where the defendants appeared to be attempting to add gasoline. The officer stopped to render assistance. The defendants explained that they needed gas. During their conversation, the defendants told the officer that they were on the way to visit a friend nearby, but when the officer offered to call the friend, it turned out that the defendants did not know the friend's name or address. Finding this suspicious, the officer asked for identification. The police computer revealed no outstanding warrants, but defendants appeared to match the BOLO.

Officer Murias contacted Officer Ramos (author of the BOLO), who brought the neighbor to the roadside location. The neighbor identified the car as being the one he had seen. At about 2:00 p.m. the defendants were placed under arrest for loitering and prowling in violation of section 856.021, Florida Statutes (1995).

Detective Garcia was sent to the victim's residence to investigate further. At 5:00 p.m., the victim arrived home. He confirmed that the pry marks on his door were new, and found that his electric chain saw was missing from the carport. The defendants had an electric chain saw on the back seat of the car they were driving. They had told Officer Murias, however, that the chain saw belonged to the driver's father.

Defendants were arrested for burglary and criminal mischief. They moved to suppress their confessions, claiming that they were the product of a Fourth Amendment violation. Defendants contended that the arrest for loitering and prowling was illegal, and that there was neither probable cause nor a founded suspicion to justify their detention on the charge of burglary. The State has appealed.

II.

We conclude that there was probable cause to arrest defendants for the offense of loitering and prowling. Section 856.021, Florida Statutes, defines the offense as follows: "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." Id. § 856.021(1).

"Probable cause to arrest exists when the totality of the facts and circumstances within the officer's knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it." State v. Russell, 659 So.2d 465, 468 (Fla. 3d DCA 1995) (citations omitted); see also Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949); Cross v. State, 432 So.2d 780, 782 (Fla. 3d DCA 1983). "The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based." Shriner v. State, 386 So.2d 525, 528 (Fla.1980) (citation omitted). "An officer is permitted to take a realistic view of the facts in making a probable cause determination, 'for probable cause is a matter of practicalities, not technicalities.' " State v. Russell, 659 So.2d at 468 (citations omitted).

Here, the neighbor saw the defendants back their car into the victim's enclosed carport. As a general matter, a homeowner may be deemed to extend an implied invitation to legitimate visitors to approach the house by use of the sidewalk, and to park the car in the driveway or at the roadside. But certainly there is no implied invitation for a stranger to park his car in a homeowner's enclosed carport and peer in the windows. The unusual step of backing the car into the carport would (a) facilitate loading of the trunk unobserved, (b) prevent the license plate from being read from the street, ¹ and (c) allow a speedy departure if needed. Upon seeing that the neighbor was watching, defendants did not approach the neighbor to ask the whereabouts of the homeowner. Instead, defendants took flight. In the subsequent roadside encounter with Officer Murias, defendants lied about their destination and reason for being in the area. Whether or not the pry marks are taken into consideration, the officers had probable cause to arrest the defendants for loitering and prowling.

Defendants contend, however, that the officers were not entitled to make a warrantless arrest for the misdemeanor offense of loitering and prowling because the misdemeanor was not committed in the officers' presence. Defendants rely on such cases as Chamson v. State, 529 So.2d 1160, 1161 (Fla. 3d DCA 1988), and Carter v. State, 516 So.2d 312, 313 (Fla. 3d DCA 1987), which, on the basis of section 901.15(1), Florida Statutes, hold that an officer cannot make a warrantless arrest for the misdemeanor of loitering and prowling where the officer did not personally observe the misdemeanor offense and relied instead on a report by a citizen witness. ² Those cases reach that result because subsection 901.15(1), Florida Statutes, authorizes the warrantless arrest of a person who "has committed a felony or misdemeanor ... in the presence of the officer." If the officer did not observe the misdemeanor, then section 901.15 in general does not authorize the officer to make a warrantless arrest. ³

The cases relied on by defendants do not cite or discuss section 856.031, Florida Statutes, which states:

856.031 Arrest without warrant.--Any sheriff, policeman, or other law enforcement officer may arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable such suspected loiterer or prowler to escape arrest.

Here, the defendants were apprehended at roadside, and assuredly would have escaped if the officers had left to obtain a warrant. The warrantless arrest was authorized by section 856.031. ⁴

Defendants argue that in State v. Ecker, 311 So.2d 104, 111 (Fla.1975), the Florida Supreme Court held that only an...