Wright v. State
| Decision Date | 16 December 2013 |
| Docket Number | No. 4D11–877.,4D11–877. |
| Citation | 126 So.3d 420 |
| Parties | Alvin WRIGHT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
The defendant appeals his convictions and sentences for burglary and loitering and prowling. He argues that the trial court erred in denying his motion to suppress and in denying his motion for judgment of acquittal on the loitering and prowling charge.1 We agree in part and reverse.
The State charged the defendant with burglary of a dwelling, grand theft, and loitering and prowling after a search of his car incident to arrest uncovered stolen items from a recent burglary. The defendant moved to suppress that evidence, arguing that law enforcement did not have reasonable suspicion to stop the defendant and lacked probable cause to arrest. The State responded that both reasonable suspicion and probable cause existed to warrant the stop and subsequent arrest.
At the hearing on the motion to suppress, the State called the detective who responded to a 911 call from a concerned homeowner. The homeowner informed the dispatcher that a female had knocked on his door looking for “Crystal.” When the homeowner asked the female what Crystal's address was, the female looked startled and did not know the address. She then left in a black Thunderbird. The homeowner provided the dispatcher with the car's description and license plate number.
Three officers responded in unmarked police cars to look for the black Thunderbird. The detective was familiar with the area due to the fact that thirty-one burglaries had been committed there within the last two months. Many of them had been committed by having someone knock on the front door of the residence to determine whether anyone was home.
The detective located the Thunderbird, which was occupied by two individuals, a female driver and the defendant passenger. The detective followed the Thunderbird and observed it traveling slowly and stopping in front of several houses. When the Thunderbird left the detective's jurisdiction, a sergeant from the next jurisdiction continued to follow the car.
The State then called the sergeant, who testified that based on the detective's request and the information relayed to him, he stopped the Thunderbird. At that point, the Thunderbird was being driven by the defendant. The sergeant asked the defendant where he was coming from, why he was driving slowly, and other questions to dispel his suspicion. The defendant did not provide any information, claimed to be lost, and failed to dispel the sergeant's concern. The sergeant wrote the defendant a ticket for a cracked taillight and then placed him under arrest for loitering and prowling.
Defense counsel argued that the State had neither established reasonable suspicion for the stop nor probable cause to arrest the defendant for loitering and prowling. The State responded that probable cause existed because the defendant was unable to dispel the sergeant's concern that he had been “casing” the neighborhood. The trial court deferred ruling, but later denied the motion by written order.2
The court found the officers had reasonable suspicion to stop the defendant for loitering or prowling because: (1) law enforcement received information from a reliable citizen informant; (2) the defendant was still in the area one and one-half hours later driving the same vehicle in an unusual and suspicious manner; (3) these events occurred at a similar time of day as recent burglaries in the area; and (4) the prior neighborhood burglaries had encompassed the same technique of knocking on doors to determine what houses were occupied. Once the sergeant stopped the defendant, who failed to dispel his concern that he had been checking out homes to burglarize, probable cause existed to arrest him. Once the officers had probable cause to arrest, they could legally search the defendant's car incident to that arrest.
The defendant continues to argue that his arrest for loitering and prowling was not supported by probable cause, and the stolen items found in his car should have been suppressed as the fruits of an illegal seizure. The State responds that the totality of the circumstances—including the defendant's driving pattern, which matched the modus operandi of other recent burglaries—established probable cause.
State v. Holland, 76 So.3d 1032, 1034 (Fla. 4th DCA 2011) (quoting Ferguson v. State, 58 So.3d 360, 363 (Fla. 4th DCA 2011)). We have de novo review of the issues of law. Id.
Section 856.021(1), Florida Statutes (2009), makes it “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.”
We must be cautious that the statute not be used as a pretext and thereby interfere with the activities of law-abiding citizens. Mills v. State, 58 So.3d 936, 939 (Fla. 2d DCA 2011). “Instead, the proper application of this statute ‘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.’ ” L.C. v. State, 516 So.2d 95, 97 (Fla. 3d DCA 1987) (quoting State v. Ecker, 311 So.2d 104, 107 (Fla.1975)).
The first element of the crime “has been read to require a threat of immediate, future criminal activity.” V.E. v. State, 539 So.2d 1170, 1171 (Fla. 3d DCA 1989) (citing D.A. v. State, 471 So.2d 147, 151 (Fla. 3d DCA 1985)). “[T]he State must prove more than vaguely suspicious presence.” J.S.B. v. State, 729 So.2d 456, 457 (Fla. 2d DCA 1999).
The second element requires “justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021(1), Fla. Stat. (2009). The suspect must be given an opportunity to explain and dispel any alarm or concern, but “the failure of a defendant to explain his presence and conduct cannot constitutionally be considered as a circumstance tending to establish the second element.” V.E., 539 So.2d at 1172 (citing D.A. v. State, 471 So.2d 147, 154 (Fla. 3d DCA 1985)).
Because the offense of loitering and prowling is a misdemeanor, a police officer may...
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