Loitering or Prowling

Many crimes are tough to define and even more difficult to prove – perhaps none more so than the crime of loitering and prowling, discussed in s. 856.021 of the Florida State Statutes.

As our Palm Beach and Broward County criminal defense lawyers at the Law Offices of Leifert & Leifert know, according to the law, it is a second-degree misdemeanor for anyone to “loiter or prowl” (i.e. lurk) in a place at a time or in a manner “not usual for law-abiding citizens,” under circumstances that could reasonably cause alarm or immediate concern for the safety of people nearby. If convicted of the crime, an offender faces up to $500 and/or 60 days in jail.

Particularly troubling with the law is the standard of “not usual for law-abiding citizens.” Who determines what is “usual” for law-abiding citizens in terms of standing around and talking? For example, what exactly makes two individuals standing outside of a mall chatting “usual” and two other individuals standing outside of a convenience store not usual? Clearly, defining what is “usual” is an enormous undertaking; yet, it is one that the state must do in order to successfully prosecute a case stemming from a charge of loitering and/or prowling.

The statute, s. 856.021, goes on to give examples of situations in which it would be reasonable to assume that said “unusual” behavior could cause alarm or immediate concern. The statute lists as examples situations in which the person in question “takes flight” upon the appearance of a law enforcement officer, in which the person refuses to identify himself or herself, or in which he or she endeavors to conceal himself or herself or any object.

Again, these hypothetical situations are all up for debate. For instance, why is avoiding the presence of a law enforcement officer cause for alarm? It would be one thing if the statute stated that it would be cause for concern if an individual “took flight” after being told to stay put by a law enforcement officer. However, unfortunately, many localities have seen their police departments garner unflattering reputations; it is, as our Palm Beach and Broward County criminal defense lawyers know, by no means uncommon for people to choose to remove themselves from a situation in which a police officer is involved. As for the situation involving concealment, what if somebody is standing outside of a store and sees an ex-girlfriend or ex-boyfriend and wants to avoid an awkward interaction, and therefore pulls a hood over their face to avoid being seen? Is this evidence that someone is involved in criminal conduct? Our criminal defense lawyers would argue that it’s simply an example or normal human behavior.

Finally, the law holds that an arresting officer must, prior to any arrest for an offense of loitering of prowling, give the person in question the chance to identify and explain themselves and their current conduct. Law enforcement officers must do this unless the person in question has taken flight or done something else that would make it impracticable for the law enforcement officer to solicit the previously mentioned information. Again, if the police officer has a safe opportunity to give the person in question a chance to explain themselves, and they fail to do so and just go ahead and arrest the individual, the person cannot be convicted of the crime. A person also cannot be convicted of the crime of loitering or prowling if it is revealed at trial that the explanation given by the person was true and, had the arresting officer believed it, would have dispelled alarm or concern.

If you have been arrested for or charged with the crime of loitering or prowling in Palm Beach, Broward or Miami-Dade County, please contact our criminal defense lawyers at the Law Offices of Leifert & Leifert. To schedule a free consultation, please call 1-888-5-DEFEND (1-888-533-3363). We look forward to assisting you.

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