        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                             GEOFFREY MADGE,
                                 Appellant,

                                         v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D13-110

                                [March 4, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Sandra Perlman, Judge; L.T. Case No. 11-008432CF10A.

  Carey Haughwout, Public Defender, and Nan Ellen Foley, 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.

PER CURIAM.

   The appellant challenges the trial court’s finding that he violated his
probation by committing the offense of loitering and prowling. He argues
that the State’s evidence did not establish loitering and prowling because
the responding officers did not personally observe any type of behavior that
appeared to be on the verge of ripening into a criminal act. We agree and
reverse.

   After the appellant was placed on probation, the State filed an affidavit
of violation of probation (“VOP”), which alleged that the appellant had
committed the new offense of loitering and prowling.1

   The State’s case comprised the testimony of two witnesses. Ms. Amy
Lynn Knowles testified that she visited a restaurant during her lunch
break and picked up her takeout order. As she was returning to her
vehicle, she noticed a man approaching the passenger side of her car.

1The State elected not to proceed on its allegation that the appellant also violated
his probation by committing a petit theft.
Becoming concerned, she quickly entered her vehicle, slammed the door
shut, locked the car, and tossed her purse and takeout items onto the
front passenger seat. Meanwhile, the appellant repeatedly pulled on the
passenger side door handle. The appellant motioned to himself and then
the passenger front seat. In response, Ms. Knowles put her car in reverse
and backed up. Eventually, the appellant released his grip on the car door
handle and walked back toward the restaurant and around a corner.

    Ms. Knowles drove to a nearby parking lot and telephoned the police.
Shortly afterward, officers arrived at the restaurant, where the appellant
had resurfaced. At the VOP final hearing, only one of the responding
officers testified. He explained that he gave the appellant the opportunity
to dispel his alarm, but the appellant’s account did not dispel his concern.
Accordingly, he arrested the appellant for loitering and prowling. The
officer did not testify to the contents of the appellant’s statement. At the
close of the State’s case, the court rejected defense counsel’s argument
that the State did not establish the elements of loitering and prowling.

    The appellant testified that he approached Ms. Knowles because she
motioned for him to come over to her car. Because a van was parked close
to the driver’s side of Ms. Knowles’ car, he went around to the passenger
side. He assumed she wanted to ask for directions. It became apparent
after he pulled on her passenger side door handle that she did not want to
speak with him, so, he testified that he made his way back to the bench in
front of the restaurant. When the officers arrived, the appellant cooperated
with their investigation.

   On appeal, the appellant contends the trial court erred in finding he
committed the new offense of loitering and prowling, as he did not do
anything in the officers’ presence constituting a loitering and prowling.
The State responds that a conviction for loitering and prowling may be
based on acts not occurring in the officer’s presence, and it requests this
Court to recede from its precedent holding otherwise.

  Some history regarding Florida’s loitering and prowling statute, section
856.021, Florida Statutes (2012),2 provides guidance on the issue before


2   The statute provides the following:

         (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.

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us. Shortly after the statute was enacted, the Florida Supreme Court, in
upholding its constitutionality, explained the purpose of the statute:

      This new statute . . . 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 whole purpose of the statute is to provide law enforcement
      with a suitable tool to prevent crime and allow a specific
      means to eliminate a situation which a reasonable man would
      believe could cause a breach of the peace or a criminal threat
      to persons or property.

State v. Ecker, 311 So. 2d 104, 107–10 (Fla. 1975).

   Relying on the language in Ecker, the Third District, in 1985, addressed
the burden of proof for a loitering and prowling charge:

      [T]he statute is forward-looking, rather than backward-
      looking in nature. Its purpose is to punish a certain type of

      (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 herself, or manifestly endeavors to conceal himself or
          herself 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 the
          person to identify himself or herself and explain his or her
          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 . . . .

§ 856.021, Fla. Stat. (2012).


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      incipient criminal behavior before it ripens into the
      commission or attempted commission of a substantive
      criminal act. . . . [A]s stated in the comment to Section 250.6
      of the Model Penal Code upon which the statute is patterned,
      . . . “[t]his formulation limits the offense to its essential law
      enforcement rationale of justifying intervention to prevent
      incipient crime. . . .”

D.A. v. State, 471 So. 2d 147, 151 (Fla. 3d DCA 1985) (third alteration in
original) (quoting MODEL PENAL CODE § 250.6 cmt. at 391 (1980)).

   The Third District reversed the loitering and prowling conviction, which
was based on an officer’s discovery of evidence of an apparent attempted
automobile theft after seeing the defendant and others flee the scene. In
doing so, the court reasoned that “[t]he police did not act to prevent crime
before it occurred; they acted to apprehend a suspect as to an already
completed crime.” Id. at 154.

    A few years after D.A., the Third District reaffirmed its view that the
statute is “forward-looking.” In V.E. v. State, 539 So. 2d 1170 (Fla. 3d DCA
1989), a woman observed a youth peering into the window of her home
and heard still another person trying to open a door leading into her home.
Fifteen minutes after she called the police, an officer arrived, spoke to the
woman, and then patrolled the area where he spotted two youths walking
near the woman’s home. In reversing V.E.’s conviction for loitering and
prowling, the court reasoned as follows:

      While it is true that the officer had information that the youth
      had been involved in arguably suspicious behavior (looking
      into the woman’s window while his friend tried the door) some
      twenty minutes before the officer saw him, the purpose of the
      loitering and prowling statute is “to punish a certain type of
      incipient criminal behavior before it ripens into the
      commission or attempted commission of a substantive
      criminal act. . . . The statute is forward-looking rather than
      backward-looking in nature.” Here, the state did not establish
      . . . that V.E. was about to attempt to commit a criminal act.

Id. at 1171–72 (quoting D.A., 471 So. 2d at 151).

    The bottom line is law enforcement must observe the conduct necessary
to establish the two elements of loitering and prowling. First, the officer
must observe conduct “not usual for law-abiding citizens.” Second, the
officer must have “a justifiable or reasonable alarm or immediate concern”

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of future criminal activity.

    While the observations of lay persons leading up to the arrival of law
enforcement may provide the factual background, prior wrongdoing
cannot establish the basis for a loitering and prowling charge. See, e.g.,
B.A.A. v. State, 356 So. 2d 304, 306 (Fla. 1978) (“[T]here are no specific
and articulable facts which would reasonably warrant a finding that the
public peace and order were threatened or that safety of persons or
property was jeopardized by the actions of the juvenile.”); Jones v. State,
117 So. 3d 818, 822 (Fla. 4th DCA 2013) (stating that the court could not
rely on observations of lay witnesses of events that occurred before law
enforcement arrived to determine whether defendant was guilty of loitering
and prowling); A.D. v. State, 817 So. 2d 1027, 1029 (Fla. 3d DCA 2002)
(holding evidence insufficient to support finding that juvenile committed
loitering and prowling); Freeman v. State, 617 So. 2d 432, 433 (Fla. 4th
DCA 1993) (reversing probation violation based on loitering and prowling
arrest because officer must be able to point to specific and articulable
facts).

    To the extent that prior decisions have cited or relied upon section
901.15(1), Florida Statutes (2014), to support the requirement that the
officer witness the defendant’s conduct to prove the two elements of
loitering and prowling, that reliance is seemingly misplaced. Section
901.15(1) requires an officer to witness a misdemeanor to make a
warrantless arrest. That requirement has nothing to do with the burden
of proof to establish the crime of loitering and prowling.

    It makes no evidentiary sense to preclude reliable evidence from a fact
finder because of a statutory limitation on law enforcement’s arrest
powers. It is the precise elements of the crime of loitering and prowling
which make the officer’s observations critical to satisfying the State’s
burden of proof. See, e.g., E.F. v. State, 110 So. 3d 101, 104 (Fla. 4th DCA
2013) (finding that in determining whether state proved elements of
loitering and prowling, court was “limited to considering only the
detective’s observations”); J.S.B. v. State, 729 So. 2d 456, 457 (Fla. 2d DCA
1999) (recognizing that to sustain a conviction for loitering and prowling,
the state must prove two elements, which must have occurred in the
officer’s presence); K.R.R. v. State, 629 So. 2d 1068, 1069–70 (Fla. 2d DCA
1994) (reversing adjudication of delinquency for loitering and prowling
where officer received report of an automobile theft but did not witness
any alarming behavior by the appellant, who was observed walking near
the scene of the reported theft).

   In Jones, we held the evidence insufficient to support the finding of guilt

                                      5
for a loitering and prowling charge. Jones, 117 So. 3d at 822. Just like
Jones, without the testimony of the lay witnesses, all that was left was the
testimony of the officer. And like Jones, the benign behavior that occurred
in the officer’s presence did not amount to loitering and prowling, or even
come close.

    Here, there was no evidence presented at trial that the responding
officers personally observed any alarming behavior or conduct which
presented an “immediate concern for the safety of persons or property.” In
short, the evidence fell short. We therefore reverse.

   Reversed and remanded for proceedings consistent with this opinion.

GROSS, MAY and CIKLIN, JJ., concur.

                           *          *        *

   Not final until disposition of timely filed motion for rehearing.




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