On November 21, 2023, the Eleventh Circuit Court of Appeals decided the United States v. Altieri[i], which serves as an excellent review of the law related to probable cause and arrests for prowling.  The relevant facts of Altieri are as follows:

On March 28, 2022, at approximately 1:25 a.m., Officer Shannon noticed a car parked on Nova Drive, alongside a college, in Davie, Florida. Two males exited the vehicle dressed in all black and wearing black masks. Mr. Altieri—one of the two men—carried a plastic garbage bag and at least one of the two wore latex gloves. The two began to run across Nova Drive—toward a row of warehouses—but before they could complete the crossing, Officer Shannon intercepted them in his marked vehicle.

Officer Shannon exited his car, identified himself as police, drew his gun, and commanded the men to the ground. The two men stopped and complied. Officer Shannon handcuffed both and took them into custody. While searching the men, Officer Shannon found unopened mail in the garbage bag that Mr. Altieri was carrying and a postal service key on his person.[ii]

Altieri was subsequently indicted under federal law for charges related to the theft of mail.  He filed a motion to suppress and argued that the officers lacked probable cause to arrest him, therefore the evidence obtained after his arrest (stolen mail and a mailbox key) should be suppressed.  The district court denied the motion to suppress.  Altieri entered a conditional guilty plea with the right to appeal the denial of his motion to suppress.  He filed a timely appeal with the Eleventh Circuit Court of Appeals.

The issue before the court of appeals was whether the officer had probable cause to arrest Altieri under the Florida loitering or prowling statute.[iii]

The court of appeals first discussed the legal principles relevant to the issue at hand.  The court stated

[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004). “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Id.[iv]

The court also noted that, under the exclusionary rule, evidence derived from an arrest that is not based on probable cause would not be admissible in court against the defendant.

Next, the court examined the elements of Florida’s loitering or prowling statute.  The court stated

We have interpreted Florida Statute § 856.021 as having two elements: “(1) the accused must be loitering or prowling at a place, at a time, or in a manner not usual for law-abiding citizens; and (2) the loitering or prowling must be under circumstances that warrant a reasonable fear for the safety of persons or property in the vicinity.” United States v. Gordon, 231 F.3d 750, 758 (11th Cir. 2000).[v]

The court of appeals also noted factors listed in the statute that may create a reasonable fear for “the safety of people or property” in the area.  These factors are flight at the appearance of an officer, a refusal to identify oneself, or an attempt to hide oneself or an object.  The statute also requires the officer to allow the person to dispel alarm by asking for an explanation of their presence or conduct and asking them their identity.

In consideration of the above factors, and with the understanding that “probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity,” the court set out to determine if probable cause existed.[vi]     The relevant facts were as follows:  (1) Mr. Altieri and another man exited a vehicle at 1:25 a.m.; (2) both men wore masks and black clothing; (3) Mr. Altieri carried a plastic garbage bag; (4) one or both of the men was wearing gloves; (5) the car that dropped the men off fled when the officer approached Altieri; and (6) Altieri refused to the officer’s request for him to explain his conduct.

The court of appeals, in consideration of the totality of the circumstances above, held that

[P]robable cause existed for Officer Shannon to conclude that Mr. Altieri was “loitering or prowling at a place, at a time, or in a manner not usual for law-abiding citizens,” and that there was “reasonable fear for the safety of persons or property in the vicinity.

As such, they affirmed the denial of the motion to suppress.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

__________________________________________________________

Citations

[i] No. 23-11884 (11th Cir. Decided November 21, 2023 Unpublished)

[ii] Id. at 1-2

[iii]  Florida Statute § 856.021 (quoting fn 1, The statute reads as follows: “(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. (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…”)

[iv] Id. at 5 (emphasis added)

[v] Id. (emphasis added)

[vi] Id. at 6