Appellant alleges that his convictions for loitering and prowling and possession of a burglary tool are not supported by the evidence. We agree and reverse.
The circumstances surrounding the arrest for loitering and prowling are as follows. Appellant and a friend were riding bicycles at approximately 2:45 a.m. When they saw an officer behind them, they abruptly turned and almost lost control of their bikes. The officer signaled them to stop, and asked them what they were doing in the area. They initially refused to identify themselves, but then did so, although appellant at first gave a false name. They told the officer they had gotten lost on their way home. A pat-down search of appellant produced a wrench and a pair of bolt cutters was found on his friend. The officer arrested them for loitering and prowling and possession of burglary tools.
Conviction under section 856.021, Florida Statutes (1987) requires proof that: (1) the defendant was loitering or prowling in a place, at a time, or in a manner unusual for a law-abiding individual under (2) circumstances that warrant a justifiable and reasonable alarm or concern for the safety of persons or property in the vicinity. In considering the second element, courts have found that the behavior must imminently threaten the safety of persons or property. State v. Ecker,
In this case, the state argues that the fact that the boys were on the street at that hour, coupled with their abrupt right hand turn upon seeing the officer, was sufficient to justify their detention. Then, because their explanation for their presence was not convincing and they pos
We find that the detention of the boys was not justified. In Patmore v. State,
Here, the officer stopped the boys because they were riding bicycles in the early morning hours and turned abruptly when they saw him. It is undisputed that they did not attempt to elude the officer once he signaled them to stop. Subsequently, tools were discovered and the boys initially failed to identify themselves. This conduct does not satisfy the two elements of loitering and prowling. To establish this offense, it must be shown beyond a reasonable doubt that the boys were loitering in a manner unusual for law abiding individuals and that their actions warranted an alarm or concern for the safety of either persons or property in the area. D.A. v. State,
In addition, the tools found on the boys do not give rise to a suspicion of imminent criminal activity. There must be an immediate threat to persons or property in the area in order to justify an arrest for this offense. State v. Ecker,
Likewise, appellant’s conviction for possession of burglary tools must be reversed. Appellant was in possession of a wrench which he stated that he used to tighten a loose screw on his bicycle wheel. The officer stated he believed appellant until he found the bolt cutters on his friend. The state offered no evidence that appellant intended to use the tool to commit a burglary. Thomas v. State,
REVERSED AND REMANDED.
