Adam Acevedo v. State
200 So. 3d 196
| Fla. Dist. Ct. App. | 2016Background
- Acevedo was on probation for violent offenses and wore an electronic monitoring (GPS) device; no curfew or travel restrictions at issue.
- 3-M monitoring employee Baillergeon, while training, discovered Acevedo’s GPS showed him in or near her unfenced yard late at night on Aug 21 and from 11:47 p.m. Aug 23 to 12:02 a.m. Aug 24.
- Baillergeon reported the activity; Detective Breedlove interviewed Acevedo two months later. Acevedo offered explanations: shortcut to girlfriend’s (implausible) and looking for his mother’s cat.
- At the VOP hearing the State introduced the GPS tracking record and testimony placing Acevedo near bedroom windows at night; neighbor testified Acevedo had expressed a desire to meet Baillergeon; mother testified she sometimes sent him to look for the cat.
- Trial court found Acevedo failed to dispel alarm, discredited cat testimony, concluded his nighttime presence warranted alarm, revoked probation and sentenced him to 25 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Acevedo committed loitering and prowling under §856.021 | State: GPS and circumstances (night, near windows, alarmed resident) show loitering/prowling that reasonably warranted alarm | Acevedo: GPS shows only location, not conduct; explanations (cat) could dispel alarm; officer did not contemporaneously observe conduct | Reversed — evidence insufficient to prove loitering and prowling |
| Whether officer must contemporaneously observe suspicious conduct | State: Detective’s later review of GPS suffices as observation of conduct | Acevedo: Statute requires opportunity to dispel alarm and contemporaneous observation to assess incipient risk | Court: Officer’s delayed review insufficient; statute is forward-looking and meant to address incipient conduct observed in real time |
| Whether GPS location alone can establish alarm-causing behavior | State: Location/timing near windows is enough to infer alarming conduct | Acevedo: GPS lacks detail on actions; accuracy/distance and lack of immediate observation undermine inferences | Court: GPS points alone do not demonstrate conduct amounting to loitering/prowling or imminent threat |
| Whether revocation of probation was supported by substantial evidence | State: Trial court credibility findings and alarm support revocation | Acevedo: Legal insufficiency of loitering/prowling charge means no basis for revocation | Court: Revocation reversed because underlying offense not proven |
Key Cases Cited
- State v. Ecker, 311 So. 2d 104 (Fla. 1975) (defines elements of loitering/prowling and requires specific articulable facts showing imminent threat)
- D.A. v. State, 471 So. 2d 147 (Fla. 3d DCA 1985) (statute is forward-looking to prevent incipient criminal behavior)
- V.E. v. State, 539 So. 2d 1170 (Fla. 3d DCA 1989) (loitering statute applies to incipient conduct; past suspicious acts insufficient when officer did not observe ongoing risk)
- Madge v. State, 160 So. 3d 86 (Fla. 4th DCA 2015) (suggests officer’s contemporaneous observation of suspicious conduct is necessary)
- Ellis v. State, 157 So. 3d 467 (Fla. 2d DCA 2015) (both elements of loitering/prowling must occur in officer’s presence before action)