Miscellaneous
PERSONS ON PROPERTY WITHOUT LEGAL CLAIM OR TITLE
Increasingly, officers are responding to calls where owners of residences discover
persons occupying a dwelling that is vacant, and who claim to be legitimate lessees. The
persons occupying the property may have evidence that indicates that they actually
leased the property (a signed lease, payment receipts, etc.). However, the facts may
reveal that the person that leased them the property is not the owner or his/her agent,
and had no right or authority to lease the property. This is a criminal matter. A fraud
report must be prepared for the people who were fraudulently leased the property, who
typically have lost the money they put down for the usual first and last month rent and
a security deposit. A fraud and/or burglary report must be prepared for the true homeowner,
who may have suffered property damage and was deprived the use and income
from the property. In this scenario, the Economic Crimes Bureau (ECB) should
be immediately advised to conduct further investigation and to preserve evidence.
Depending upon the facts of each case, it may or may not be appropriate to use the
trespass after warning statute to remove the persons that leased the property, as no
legitimate landlord tenant relationship exists. Officers must remain mindful that the
warning to depart must be given by the actual owner, the true lessee, or by a person
authorized by the actual owner or true lessee of the premises, in the presence of the
officer, and that the party so warned refuses to depart.
The final scenario is outright criminal when there is probable cause to believe that
the occupants of the property are trespassing on the property, or have committed a
burglary, i.e. broke the lock box containing the keys, changed the locks and moved in.
They may even be using the residence to commit other crimes, such as dealing narcotics,
prostitution, etc. In this type of instance, additional investigation may be prudent
prior to making an arrest.
As the scenarios described above are usually very complicated and fact dependent,
officers are encouraged to consult with their legal advisors for additional guidance
as needed.
LOITERING OR PROWLING
General Florida Statutes § 856.021
The crime of loitering and prowling requires proof of two elements, both of which must be committed in the officer’s presence prior to arrest. The accused was (1) loitering and prowling in a manner not usual for law-abiding citizens, and (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 located in the vicinity. Florida Statutes § 856.021.
Guidelines
Both elements must be committed in the officer’s presence prior to arrest. For the
first element, an officer must observe the accused loitering and prowling in a
mannernot usual for law-abiding citizens (example: officer observes the accused behind a closed
business in the early morning hours). The suspicious criminal conduct observed comes
close to, but falls short of, the actual commission or attempted commission of a substantive
crime. For the second element, the arresting officer must articulate specific facts which when
taken together with rational inferences from those facts, reasonably warrant a finding that a
breach of the peace is imminent or the public safety is threatened.
Courts have described this activity as “incipient criminal behavior” (beginning to
exist or appear; in an initial stage). Some of the circumstances which courts have considered
cause for alarm are whether the person takes flight, refuses to identify himself,
or attempts to conceal himself, or an object. Florida Statutes § 856.021(2); G.C. v.
State, 903 So. 2d 1031 (Fla. 4th DCA 2005); D.S.D. v. State, 997 So. 2d 1191 (Fla. 5th
DCA 2008).
It is important to note that an officer may still legally detain an individual
based on the observations and inferences articulated above, even if not making an arrest
based on Florida Statute § 856.021. A temporary detention based on reasonable
suspicion does not necessarily have to be predicated on a violation of Florida Statutes
§ 856.021, although many of the probable cause factors may overlap.
Before you make an arrest, you must:
1. Afford the subject an opportunity to dispel any alarm or immediate concern
caused by the particular circumstances encountered. As established by case law, Miranda
warnings must be given prior to any questions being asked which would dispel
the officer’s alarm, as the questioning would be considered custodial. Driscoll v. State,
458 So. 2d 1188 (Fla. 4th DCA 1984).
2. Ask the subject to identify himself or herself and explain his or her presence and
conduct. The statute expressly provides, “No person shall be convicted of an offense
under this section if the arresting 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.” Florida Statutes
§ 856.021(2).
“Any sheriff, police officer, or other law enforcement officer may arrest any suspected loiterer or prowler without a warrant in
case delay in procuring one would probably enable such suspected loiterer or prowler to escape arrest.” Florida Statutes § 856.031.
When a police officer observes or determines factors which he or she reasonably
believes establish probable cause that a violation of § 856.021 has occurred, an
arrest may be effected without a warrant where the delay in making the arrest would
probably allow the subject to escape. However, a temporary detention of the subject
can be made pursuant § 901.151, the “Stop and Frisk Law,” “under circumstances
which would reasonably indicate that such a person has committed, is committing or is
about to commit a violation of the criminal laws of the state or a criminal ordinance of
any municipality or county.” Florida Statutes § 901.151.
Before making an arrest for loitering and prowling, consider the following:
1. If the information was received from a citizen, is it reliable (did the citizen identify himself/herself; can the individual be contacted for additional details, etc...)? 2. Were both elements of the offense committed in your presence? 3. Did you advise the subject of his/her Miranda rights prior to questioning? 4. Did you afford the subject the opportunity to dispel any alarm or immediate concern caused by the particular circumstances encountered?
856.031 Warrantless Arrest –– reads as follows:
“Arrest without warrant.–Any sheriff, police officer, or other law enforcement officer
may arrest any suspected loiterer or prowler without a warrant in case delay in
procuring one would probably enable such suspected loiterer or prowler to escape arrest.”
When you observe any conduct or activity which you reasonably believe comes
within the ambit of this statute, or you have probable cause based upon credible hearsay
from a citizen or informant, you may arrest without a warrant where delay in making
the arrest would probably allow the perpetrator to escape. The standard is one of
reasonableness. Unless what you observe is an obvious case of loitering or prowling and
such conduct gives rise to alarm or immediate concern, your initial approach should be
pursuant to the provisions of § 901.151–Stop and Frisk.
Before you make a decision ask yourself some questions: (CONTINUED)
1. Is the complainant or informant a “reliable” and “prudent” citizen?2. Are there other factors supporting the complainant’s statement, e.g., the clothes match Mrs. Jones’ description, subject is sweating from recent exertion, etc.
3. What are the probabilities that the subject is available and has correctly identified himself or herself for a later pickup pursuant to an arrest warrant?
4. Are there other bases for arrest or questioning, e.g., concealed weapons, attempting to conceal some object?
5. If you did not observe the subject “prowling,” are you now observing “loitering” within the meaning of § 856.021?
6. If you do not arrest the subject and he is not a local resident, are you left with
a “justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity?”
7. Can the complainant/informant make a positive identification?