Summary
The Florida Second District Court of Appeal held that the officer lacked probable cause to arrest Ferguson for loitering and prowling after investigating his conduct near a residence. The court reversed the convictions and sentences in one consolidated appeal, reversed the probation revocation and sentences in the other, and remanded for suppression of the evidence and reinstatement of probation.
Topics
Practice areas
Questions Presented
- Whether the officer had probable cause to arrest Ferguson for loitering and prowling.
- Whether the evidence and statements obtained as a result of the arrest should have been suppressed.
- Whether the convictions and sentences based on the seized evidence and the revocation of probation based on the new-law violations should be reversed.
Holdings
- The officer lacked probable cause to arrest Ferguson for loitering and prowling because the facts known to her did not establish an imminent breach of the peace, an imminent threat to public safety, or conduct sufficiently close to the commission or attempted commission of a substantive crime.
- The trial court should have granted Ferguson's amended motion to suppress the evidence obtained and statements made as a result of the arrest and search.
- The convictions and sentences in case number 2D09-276 and the revocation of probation and sentences in case number 2D09-326 must be reversed, and Ferguson's probation must be reinstated.
Key quotations
“The offense consists of two elements. The first is that "the accused must loiter or prowl in a manner not usual for a law-abiding citizen. This conduct must come close to but fall short of the actual commission or attempted commission of a substantive crime and suggest that a breach of the peace is imminent."” (at 553)
“"The offense of loitering and prowling must be complete before any police action occurs."” (at 554)
Factual background
An officer observed Ferguson standing in the street and near the doorway of a residence in a high-crime residential area, watching the officer and later entering a vehicle. Ferguson stopped when ordered, identified himself, provided identification, and explained that he was checking the door for a friend. The friend confirmed that Ferguson normally visited the residence. The officer nevertheless arrested Ferguson for loitering and prowling and searched him and his vehicle, discovering an empty holster, a firearm, cannabis, and drug paraphernalia.
Procedural history
Ferguson was convicted in circuit case CF08-5918-XX of possession of a firearm by a convicted felon, loitering and prowling, possession of cannabis, and possession of drug paraphernalia. The same new-law violations formed the basis for revoking his probation in circuit cases CF05-4414-XX and CF05-4426-XX. The trial court denied his amended motion to suppress evidence and statements arising from his arrest for loitering and prowling, and Ferguson appealed in two consolidated cases.
Remand instructions
Reverse the convictions and sentences in case number 2D09-276, reverse the revocation of probation and sentences in case number 2D09-326, and reinstate Ferguson's probation.