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Prowling, Burglary, and Possession of Burglary Tools in Florida: What Counts as Evidence?

In Florida, as in many states, there exists not only a crime of burglary—which consists of breaking and entering into a dwelling, structure, or automobile with criminal intent—but a separate crime of possession of burglary tools. This crime is often a “freebie” for the state: it’s rare that someone who commits a burglary will be arrested without the actual burglary tools, such as gloves, a crowbar, or a screwdriver, in his or her possession. And the person’s actual commission of a burglary using the tools usually serves as adequate proof of his or her intentions for those tools.

However, the story is different where, at the time of arrest, the defendant hasn’t actually committed a burglary, but rather is just wandering around in a residential neighborhood (for whatever reason). Now, in some instances, wandering around and acting suspiciously can constitute the crime of loitering or prowling, which Florida law defines as requiring: (1) being present in a place, at a time, or in a manner not usual for law-abiding individuals; and (2) doing so under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. But this crime, unlike burglary, isn’t a felony. So what happens to someone who is charged with loitering or prowling who, when police search him or her, is later found to be in possession of burglar’s tools? Can the fact that he or she possessed, say, a crowbar, be used to show that he or she was guilty of prowling?

Opinion of the Florida Courts

Florida Courts have repeatedly found that, because loitering or prowling is a misdemeanor, both elements of the offense must be committed in the officer’s presence prior to arrest. Therefore, the evidence is limited to what the arresting officer actually observes after he or she arrives on the scene. As a result, if a police officer arrests someone for prowling, and then, upon searching his or her person or belongings, finds that he or she has, say, rope, a screwdriver, and a black mask, that evidence can’t be used as proof that he or she was prowling. The discovery of corroborating evidence after the fact doesn’t show that, at the time of the arrest, the individual had committed an act of prowling in contemplation of a burglary. Rather, courts will only look at what had happened before the defendant was arrested. The tools discovered upon a search of someone’s bag weren’t part of the officer’s knowledge at the time of the arrest, and the Florida Court of Appeals has repeatedly reversed convictions for prowling predicated on burglary tools discovered post hoc.

Contact an Attorney for Help

Let the law of evidence work for you. A Fort Lauderdale attorney like Kevin J. Kulik, P.A. understands the many complexities of the burglary laws (as well as related offenses like possession of burglary tools and prowling) and will hold the state to its evidentiary burden.

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