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Reseaching the violations of "prowling", also often referred to as "loitering" ,in WV did not produce any state statutes. However, it is possible that this is a municipal ordinance for Racine. (At one time, a similar law, vagrancy, remained a common law violation in WV, rather that a statutory one, long afer all other states had codified it!). Unfortuntately, Racine does not appear to publish these digitally on the net. (Please see http://www.statelocalgov.net/state-WV.cfm).
Therefore, a review of the law if available in other states can be helpful in determining its possible usage in WV/Racine. For instance, Florida' law on 'prowling, and in review of the facts you provided, is quite supportive. "The offense of loitering and prowling requires some evidence of incipient criminal behavior, and the offense cannot be established by suspicious after-the-fact activity."
Here is a case blurb providing more of an explanation. Keep in mind, in this case, there was a curfew by law, but the police had neglected to charge A.D. with the curfew violation, which they probably would have succeeded in. They were unable, ultimately, to succeed on the prowling charge, because as you indicate, "[s]ince when is it illegal for an aldult to be on the streets at night?" Short of a curfew ordinance, I agree with you.
A.D. v. State, 817 So.2d 1027 (Fla. 3d DCA June 5, 2002)
Miami Beach Police discovered A.D. walking along a sidewalk at 4:23 a.m. When questioned, A.D. told the officers that he was coming from the home of his friend, Willy. A.D. could not give Willy's address, but pointed to where Willy lived. Although A.D. lived in North Miami and said that he planned to take a taxi home, he had no money in his possession. The officers arrested A.D. for loitering and prowling....(At the adjudicatory hearing, the officers testified that Miami Beach had a curfew in operation between midnight and 6:00 a.m., but conceded that A.D. was not charged with a curfew violation.) A.D. moved for a judgment of acquittal on the charge of loitering and prowling, which motion was denied. The trial court found that A.D. committed the offense...
On appeal, the Third District reversed the adjudication and ordered A.D. discharged. The court noted that the offense of loitering and prowling in section 856.021(1) requires a showing that the defendant was engaged in incipient criminal behavior. The statute is forward-looking, and seeks to punish a certain type of criminal behavior before it ripens into the commission or attempted commission of a substantive crime. By contrast, the offense is not established by suspicious after-the-fact criminal behavior that would suggest an already completed criminal act. Because A.D.'s conduct did not point to the commission of a future crime, it could not be considered loitering and prowling under the statute.
For more details on the exact law being used by Racine (the citation number may be found on the ticket), I would go to the municipality and ask to see a copy of the law in question. Make a copy and review it thoroughly. Your son likely also has the added benefit of a witness, his friend who he was visiting, who can testify on his behalf. From the facts herein, and from what I have seen, this is something I would NOT roll over on - I would go the extra yard and clear myself, even if the violation ends up being a minimal one. But each individual, of course, must make his/her own decision :
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Hello, yes, it is the burden of the court to establish that all of the elements of the crime or violation have been met. That may not mean proving "prowling and looking to break into cars etc.. " but it does mean proving the elements in the law they have charged him under. In this case, you are in luck in that Racine, Wisconsin is with the times and publishes their ordinances. Its ordinance is not very unlike FL, but perhaps better for you even: Plus, I think your son has an extremely strong case based on the facts you present.
Sec. 66-107. Prowling and blocking. (a) No person shall loiter or prowl in a place, at a time, or in a manner not usual for law abiding individuals, under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such a claim is warranted is the fact that the actor takes flight upon the appearance of a police officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstances makes it impracticable, a peace officer shall, prior to any arrest for an offense under this subsection, afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this subsection if the peace officer did not comply with the preceding sentence, or if it appears at trial that the explanation given by the actor was true and, if believed by the peace officer at the time, would have dispelled the alarm. (b) No person shall loiter, loaf, wander, stand or remain idle either alone or in consort with others in a public place so as to obstruct any public street, highway, sidewalk or any other public place or building by hindering or impeding or tending to hinder or impede the free and uninterrupted passage of vehicles or pedestrians in such a manner that it is reasonable to believe will cause a threat to public safety or a breach of the peace. (Code 1973, § 25.04.010; Ord. No. 8-99, pt. 1, 5-4-99)
------ THE REMAINDER BELOW IS PART OF THE ORDINANCE, BUT I DON'T BELIEVE IT APPLIES TO YOUR SITUATION. BUT IN THE INTEREST OF THOROUGHNESS, INCLUDE SAME FOR YOUR INFORMATION:Sec. 66-108. Material obstructions. No person shall cause the obstruction of any public street, highway, sidewalk, or any other public place or building by the placement of any object or thing which would hinder or impede, or tend to hinder or impede, the free and uninterrupted passage of vehicles or pedestrians. (Code 1973, § 25.04.020)
Sec. 66-109. Occupying parkways. No person shall occupy that portion of the street right-of-way commonly known as the "parkway," except during the period from 5:00 a.m. prior to the scheduled beginning of a parade or demonstration until one hour after the end thereof, along the designated route of such parade or demonstration. (Ord. No. 22-90, pt. 1, § 25.04.025, 6-5-90; Ord. No. 12-93, pt. 1, 6-1-93)
Sec. 66-110. Sitting on or in vehicles without owner's consent. No person shall sit, climb, lean, or lie, without the consent of the owner or operator thereof, upon or in any portion of any vehicle parked upon any public property. (Code 1973, § 25.04.030)
Sec. 66-111. Order to disperse. When any person causes or commits any of the conditions enumerated in this article, a police officer shall order that person to stop causing or committing such conditions and to move on or disperse. Any person who fails or refuses to obey such order may be arrested for a violation of this article. (Code 1973, § 25.04.040)
Sec. 66-112. Penalty for violation. Upon conviction, any person found to be in violation of this article shall forfeit an amount as provided in section 1-15. (Code 1973, § 25.04.060; Ord. No. 21-01, pt. 3, 9-4-01)
Sec. 66-113. Menacing or aggressive panhandling prohibited. (a) Purpose. The purpose of this section is to ensure unimpeded pedestrian traffic flow, to maintain and protect the physical safety and well-being of pedestrians and to otherwise foster a safe and harassment-free climate in public places in the city. (b) Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
(1) "Public place" or "place open to the public" means an area generally visible to public view and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), and buildings open to the general public including those which serve food or drink, or provide entertainment, and the doorways or entrances in buildings or dwellings and the grounds enclosing them.
(2) "Known panhandler" means a person who within one year previous to the date of arrest for violation of this section has been convicted in a court of competent jurisdiction of any civil or criminal offense involving panhandling.
(3) A conversation or gesture or both shall be construed as "threatening" if a reasonably prudent individual would perceive such conduct as intending to result in the procurement of money or goods by threat or coercion.
(4) Behavior shall be construed as "aggressive" or "intimidating" if a reasonably prudent individual could be deterred from passing through or remaining in or near any thoroughfare, or place open to the public because of fear, concern or apprehension. (c) In or near any thoroughfare or place open to the public, no person either individually or as part of a group shall procure or attempt to procure a handout from another in an aggressive or intimidating manner. Among the circumstances which may be considered in determining whether such purpose or behavior is manifested are the following: that such person is a known panhandler; that such person continues to beckon to, accost or follow or ask passer(s)-by for a handout after the passer(s)-by has failed to respond or has told the person "no"; that such person engages in a course of conduct or commits any act which harasses or intimidates the passer(s)-by; or that such person utilizes or attempts to utilize bodily gestures or physical contact to impede the path of any passer(s)-by, including but not limited to unwanted touching or blocking the path or impeding the free movement of the passer(s)-by. The violator's conduct must be such as to demonstrate a specific intent to induce, solicit, or procure from another goods or money by aggressive or intimidating behavior. No arrest shall be made for a violation of this subsection unless the arresting officer first affords such person an opportunity to explain such conduct, and no one shall be convicted of violating this subsection if it appears at trial that the explanation given was true and disclosed a lawful purpose.
(d) No person shall procure or attempt to procure a handout when either the procurer or the person being solicited is located at any of the following locations: at a bus stop; in any public transportation vehicle or public transportation facility; in a vehicle which is parked or stopped on a public street or alley; at a sidewalk cafe; or within 20 feet in any direction from an automatic teller machine or entrance to a bank. (e) It shall be unlawful for any person to sit or recline on a public sidewalk with an intent to procure or attempt to procure a handout. (f) Severability. The provisions of this section are severable. If any provision of this section is held to be invalid or unconstitutional or if the application of any provision of this section to any person or circumstance is held to be invalid or unconstitutional, such holding shall not affect the other provisions or applications of this section which can be given effect without the invalid or unconstitutional provisions or applications. It is hereby declared to be the intent of the common council that this section would have been adopted had any invalid or unconstitutional provision or applications not been included herein. (Ord. No. 21-01, pt. 2, 9-4-01) Secs. 66-114--66-135. Reserved.
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