Towne v. State, BI-354
| Citation | 495 So.2d 895,11 Fla. L. Weekly 2147 |
| Decision Date | 13 October 1986 |
| Docket Number | No. BI-354,BI-354 |
| Parties | 11 Fla. L. Weekly 2147 Jack Stanley TOWNE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen. and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant Jack Stanley Towne appeals from the denial of his motion to suppress statements and physical evidence. The questions presented for our review are: (1) whether the arrest was lawful, and (2) whether appellant's statements were voluntarily given. We affirm.
Appellant entered pleas of nolo contendere in four cases involving charges of armed burglary, aggravated assault, and sexual battery with a weapon. The pleas were entered with an express reservation of the right to appeal the trial court's denial of the motion to suppress. Appellant and the state stipulated that the issues presented by the suppression motion were dispositive of the cases against him.
On December 4, 1984, at 1:00 a.m., appellant was arrested at an apartment complex which was located next to the apartment complex where he lived. The arresting officer had been dispatched to the Villas Apartments in response to a complaint that a prowler was peeking in windows. The officer observed appellant walk approximately thirty paces, stop next to a window, and then crouch down to look in the window for several seconds. Appellant matched the description the officer had been given of the prowler. The officer's police radio squawked revealing his presence, whereupon appellant hastily left his position at the window. Although appellant did not run as the officer approached, his pace continuously quickened as the officer moved toward him. The officer caught up with appellant at a car. Appellant denied ownership of the car and denied having keys in his hand. When asked to explain his reason for being in the apartment complex, appellant told the officer he had gone to ask a classmate about the time scheduled for an exam. He was unable, however, to give the name or address of the classmate. When appellant pointed in a direction away from the particular building where his classmate purportedly lived, the officer arrested him for loitering and prowling.
Appellant's account of the circumstances of his arrest differs somewhat from that of the officer. Appellant said he left his apartment at 12:30 a.m. to pick up computer printouts at school and he intended to stop by a classmate's apartment to ask when exams were scheduled in the class. He had never been to the apartment before and did not know the classmate's last name, so he had trouble locating her apartment. At some point during his walk through the apartment complex, appellant stooped or crouched down and looked in an open apartment window. Appellant said that after he looked in the window, he noticed a police officer with a walkie-talkie crouched down by a telephone pole. As appellant walked towards his car, the officer approached him. Appellant explained that he did not know his friend's last name and was uncertain about the apartment. He explained that the car he was about to get in was a rental car, and he told the officer he did not have keys in his hand because he had put them in his pocket.
The officer placed appellant under arrest within two minutes or less after he approached him at the car. The officer arrested appellant for loitering and prowling, because the answers appellant gave to his questions were too imprecise and so insufficient to be considered truthful. When asked whether he had made the arrest on the basis of an inarticulable hunch, the officer explained that when he first observed appellant, he immediately thought appellant was the suspect in a rape investigation he had been conducting. The officer then agreed that it was an inarticulable hunch, since he could not explain why he felt as he did.
Appellant was given the Miranda rights, both at the car at the time of the arrest, and again at the police station. Appellant maintains that he asked to see a lawyer, and the arresting officer told him he could have an attorney but if he elected to go that route the officer would "throw the book at him." According to appellant, the officer then told him he recognized that appellant had psychological problems. Appellant said the officer told him he was a "new school" officer, that he was interested in helping appellant with his problems, that he would help appellant obtain release on his own recognizance, and that he would help appellant obtain probation. In addition, appellant maintains the detectives and the arresting officer told him that tape recording his statements would not only assist in a court proceeding, but could be used by a psychiatrist to determine the nature of his stress. Appellant contends he trusted the officers and relied upon their representations.
Again, the officers' version of the events surrounding the circumstances of appellant's incriminating statements differs from that of appellant. The officers note appellant was given his Miranda warnings not once, but several times, and he indicated he understood the rights available to him. The officers contend appellant did not request an attorney, and though the officers acknowledge the arresting officer promised to do everything he could to help, the discussions concerning offers of psychiatric help and promises to do everything possible to help him occurred in the context of the "entire realm of possibilities" attendant upon disposition of the case. According to the officers, these discussions occurred after appellant had made incriminating statements. The officers testified that no promises were given, and note that appellant read and signed a form waiving his right to consult an attorney.
The psychiatrist appointed by the court to evaluate appellant's psychological status testified that at the time appellant talked with the investigators, he was primarily motivated by his desire to get help. The psychiatrist testified further that appellant was peculiarly susceptible to suggestions that psychological counseling could be made available to him. In the psychiatrist's opinion, appellant would not have confessed if he had not been promised psychological help.
The trial court ruled the initial stop and arrest was valid and legal, and that appellant's statements were made freely, knowingly and voluntarily.
Appellant's arrest was predicated upon Section 856.021, Florida Statutes (1983), which 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 manifestly endeavors to conceal himself 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 him to identify himself and explain his 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.
(3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
Since loitering and prowling is a misdemeanor, only the officer's own observations will be considered in determining probable cause to arrest. S. 901.15(1), Fla.Stat. (1983); State v. Ecker, 311 So.2d 104 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975); T.L.M. v. State, 371 So.2d 688 (Fla. 1st DCA 1979); Springfield v. State, 481 So.2d 975 (Fla. 4th DCA 1986). Upon observing conduct which the officer considers suspect, he must then " 'be able to point to specific and articulable facts, which, taken...
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