State v. Ecker
| Decision Date | 19 February 1975 |
| Docket Number | Nos. 44348,44349,44586 and 44587,s. 44348 |
| Citation | 311 So.2d 104 |
| Parties | STATE of Florida, County of Dade, Appellant, v. William ECKER, Appellee. STATE of Florida, County of Dade, Appellant, v. Walter HARRIS, Appellee. Joseph BELL, Appellant, v. STATE of Florida, Appellee. Billy WORTH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for County of Dade and State of Florida, appellant-appellee.
Phillip A. Hubbart, Public Defender, and Mark King Leban, Melvin Black and Kurt Lyle Marmar, Asst. Public Defenders, for
Joseph Bell, Billy Worth, William Ecker and Walter Harris, appellant-appellee.
Stanley M. Pred and Michael L. Mann, Miami, for American Civil Liberties Union of Florida, Inc., amicus curiae.
This decision concerns the constitutionality of this state's 'loitering' statute, Section 856.021, Florida Statutes (1973). Four cases have been consolidated for the purpose of this appeal. The cases of Bell v. State and Worth v. State are direct appeals from trial court convictions under the subject statute. The cases of State v. Ecker and State v. Harris are appeals by the State of Florida from trial court orders dismissing charges brought for a violation of the subject statute. In each case, the constitutional issue was properly raised and we have jurisdiction pursuant to Article V, Section 3(b) (1), Florida Constitution.
We hold that Section 856.021, Florida Statutes, is constitutional and a proper law enforcement tool to protect the public safety, subject to the conditions and limitations herein expressed.
The statute in issue, Section 856.021, Florida Statutes, reads as follows:
'Loitering or prowling; penalty
'(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.
'(3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.'
Under the provisions of this statute, the elements of the offense are: (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; (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 in the vicinity. This alarm is presumed under the statute if, when a law officer appears, the defendant flees, conceals himself, or refuses to identify himself. Prior to any arrest, the defendant must be afforded an opportunity to dispel any alarm or immediate concern by identifying himself and explaining his presence and conduct. If it appears at trial that the explanation is true and would have dispelled the alarm or immediate concern, then the defendant may not be convicted under this statute.
Many state vagrancy, loitering and disorderly conduct laws, including a Jacksonville ordinance, have been the subject of litigation in recent years. Loitering statutes have been struck down for vagueness and overbreadth. Palmer v. City of Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); City of Portland v. White, 9 Or.App. 239, 495 P.2d 778 (1972). See also Annot., Vagrancy Statutes--Validity, 25 A.L.R.3d 792; Annot., Loitering Statutes--Validity, 25 A.L.R.3d 836.
In Papachristou v. City of Jacksonville, supra, the United States Supreme Court held unconstitutional the Jacksonville ordinance patterned after Section 856.02, Florida Statutes (1971), 1 which was the immediate predecessor of the statute now under attack. The principal reason given by the United States Supreme Court for striking down this former statute was the 'unfettered discretion' placed in the hands of the police in enforcing the ordinance.
Following this decision, our legislature, in an attempt to cure the infirmities of this earlier loitering law, enacted the present Section 856.021. This new statute abandons completely the language of the predecessor statute and is patterned after the Model Penal Code, Proposed Official Draft Section 250.6 of the American Law Institute (1962). The drafters intended that this type of statute or ordinance be a justifiable and valuable law enforcement tool for the protection of society and for the preservation of public peace and order.
The Model Penal Code provision was drawn in such a manner as to meet the defects and infirmities in earlier vagrancy laws. Appellate courts in several jurisdictions, in striking down their own vagrancy laws, have voiced approval of this Model Penal Code provision. People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411 (1973), cert. den. 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550; State v. Starks, 51 Wis.2d 256, 186 N.W.2d 245 (1971); Seattle v. Drew, 70 Wash.2d 405, 423 P.2d 522 (1967).
The question before this Court requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property.
The present statute, Section 856.021, Florida Statutes, is constitutionally attacked on the grounds that it (1) is vague and overbroad; (2) requires self-incrimination; and (3) is subject to arbitrary enforcement.
We readily recognize that if the statute broadly proscribed loitering or idling, without more, as in the manner of our previous statute, it would be unconstitutional. On the other hand, it is recognized that if a statute proscribes loitering that threatens public safety or a breach of the peace, it can withstand constitutional attack. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Camarco v. City of Orange, 61 N.J. 463, 295 A.2d 353 (1972); People v. Solomon, 33 Cal.App.3d 429, 108 Cal.Rptr. 867, cert. den. 415 U.S. 951, 94 S.Ct. 1476, 39 L.Ed.2d 567 (1974); People of Detroit v. Ritchey, 25 Mich.App. 98, 181 N.E.2d 87 (1970).
In Shuttlesworth v. Birmingham, supra, the Supreme Court of the United States upheld a New Hampshire statute which forbade any person to address any offensive, derisive, or annoying word to any other person who was lawfully in a public place. The New Hampshire Supreme Court had construed the statute as limited to the use in a public place of words directly tending to cause a breach of the peace by provoking the person addressed to acts of violence.
In Shuttlesworth v. Brimingham, supra, the United States Supreme Court upheld as constitutional the construction of an Alabama statute which made it an offense to so stand, loiter, or walk upon any street or sidewalk as to obstruct free passage over or along said street or sidewalk after the offender was requested by any police officer to move on. The Alabama Court of Appeals had narrowly construed the statute. It held that the mere refusal to move on, after a police officer had requested that a person standing or loitering should do so, was not enough to support the offense. The court required that there must also be a showing of the accused's blocking free passage. Middlebrooks v. Birmingham, 42 Ala.App. 525, 527, 170 So.2d 424, 426 (1964).
In Camarco v. City of Orange, supra, the Supreme Court of New Jersey upheld a statute which made unlawful:
'(a) . . . 'such loitering conduct as clearly will cause an immediate, actual physical violent reaction from any person, which violent reaction will cause a threat to the peace and order of the public'; . . . (b) . . . loitering which will so disturb a person of ordinary sensibilities 'as to cause such person to react immediately in such a way as to threaten by physical violence the peace and order of the public' . . . (c) . . . loitering which 'obstructs the free passage of pedestrians or vehicles' . . . (d) . . . loitering when it will 'obstruct, molest, or interfere' with any person lawfully in a public place . . ..'
Coupled with the foregoing was a provision which was construed to mean that there must be a refusal to obey a police order to move on before a charge under the ordinance could be prosecuted.
In People v. Solomon, supra, in which the United States Supreme Court denied certiorari, the Court of Appeals for the Second District of California upheld the constitutionality of a loitering statute which provides that a loiterer may be found guilty of disorderly conduct if (1) he loiters without apparent reason and refuses to identify himself and account for his presence when requested by any peace officer to do so, and if (2) surrounding circumstances indicate that public safety demands such inquiry. The California court construed the requirement of...
To continue reading
Request your trial
-
Byron, Harless, Schaffer, Reid and Associates, Inc. v. State ex rel. Schellenberg
...Corn v. State, 332 So.2d 4 (Fla.1976); White v. State, 330 So.2d 3 (Fla.1976); State v. Beasley, 317 So.2d 750 (Fla.1975); State v. Ecker, 311 So.2d 104 (Fla.1975), cert. denied sub nom. Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). See also Robinson v. Reed, 566 F.2d......
-
Lawson v. Kolender
...such circumstances can be objectively defined and articulated. Solomon, 33 Cal.App.3d at 438-39, 108 Cal.Rptr. 867. Accord State v. Ecker, 311 So.2d 104, 110 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 We again find ourselves in agreement with United States ex rel. New......
-
City of Milwaukee v. Nelson
...cert. denied, 471 U.S. 1067, 105 S.Ct. 2144, 85 L.Ed.2d 501 (1985). Other courts that have ruled in a similar manner are: State v. Ecker, 311 So.2d 104 (Fla.1975); cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975); Bell v. State, 252 Ga. 267, 313 S.E.2d 678 (1984); In additio......
-
Wyche v. State
...for vagueness and overbreadth because it, unlike the Tampa ordinance, proscribed loitering and nothing more. Subsequently in State v. Ecker, 311 So.2d 104 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975), this Court upheld the state loitering statute because it had b......
-
A loitering and prowling primer.
...was held to be constitutional only through a somewhat tortuous reading of the statute by the Florida Supreme Court in State v. Ecker, 311 So. 2d 104 (Fla. Thus, it is difficult to determine what constitutes a prosecutable loitering and prowling charge solely from the four corners of the sta......
-
§ 5.03 AVOIDING UNDUE DISCRETION IN LAW ENFORCEMENT
...v. Smith, 759 P.2d 372 (Wash. 1988) (all cases invalidating ordinances based on the Model Penal Code provision), with State v. Ecker, 311 So. 2d 104 (Fla. 1975), and City of Milwaukee v. Nelson, 439 N.W.2d 562 (Wis. 1989) (upholding MPC-based ordinances).[56] . 754 F.3d 1147 (9th Cir. 2014)......
-
§ 5.03 Avoiding Undue Discretion in Law Enforcement
...v. Smith, 759 P.2d 372 (Wash. 1988) (all cases invalidating ordinances based on the Model Penal Code provision), with State v. Ecker, 311 So. 2d 104 (Fla. 1975), and Milwaukee v. Nelson, 439 N.W.2d 562 (Wis. 1989) (upholding MPC-based ordinances).[56] 754 F.3d 1147 (9th Cir. 2014).[57] An o......
-
TABLE OF CASES
...Dwyer, State v., 757 A.2d 597 (Conn. App. Ct. 2000), 306 Echols v. State, 818 P.2d 691 (Alaska Ct. App. 1991), 451, 452 Ecker, State v., 311 So. 2d 104 (Fla. 1975), 46 Edwards, State v., 60 S.W.3d 602 (Mo. Ct. App. 2001), 233 Edwards, State v., 717 N.W.2d 405 (Minn. 2006), 198 Eichorn, In r......