Coral Gables police will be able to arrest trespassers in private homes regardless of whether a police officer actually sees the incident, under a new law approved by city commissioners Tuesday.
Under current state law, police can arrest trespassers only if they personally witness the intrusion.
That’s why city police could not arrest seven young adults who entered the home of Miami Heat player Ray Allen around 2:30 a.m. on Aug. 14. In that case, no officers witnessed the suspects enter the house, although the intruders allegedly even entered the bedroom where the NBA star’s wife, Shannon Walker Allen, was asleep. So arresting the suspects for trespassing was not an option.
Police also said they could not charge the suspects with burglary because police lacked evidence that the youths — all were age 18 or 19 — intended to commit a crime in the house, which is a necessary element of burglary.
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The Miami-Dade state attorney’s office later charged all seven suspects with trespassing based on Walker Allen’s testimony. The youths will receive summonses ordering them to be appear in court and answer the charges.
Coral Gables’ new law makes trespassing a municipal ordinance violation, thereby sidestepping the state requirement that an officer witness a trespassing incident. Although an officer could not have charged a suspect under state law, the officer could charge under the city law.
The new law also declares that it’s unlawful to “willfully enter or observe the interior of a bedroom, or other area of a dwelling where there is a reasonable expectation of privacy.” This provision could effectively turn trespass into burglary in a case like the Allens’, where the suspects apparent motive was to gawk at the inside of the home of a celebrity. In principal, the city ordinance could make this gawking an “offense” in the meaning of the burglary statute, so that someone who trespassed for gawking purposes would become a burglar.
Under the U.S. Constitution, criminal laws cannot be applied retroactively, however.
The city’s law carries a fine of up to $500 fine and up to 60 days in jail, although its real purpose likely is to facilitate trespassing arrests or certain types of burglary charges, which carry more severe penalties.
The city’s ordinance also urges the Florida Legislature and Gov. Rick Scott to amend state law, calling it “a major public safety issue.”
“Either allow police to arrest a suspect who commits trespass of an occupied dwelling, whether or not it occurs in the presence of an officer, or by classifying trespass in an occupied dwelling as a third-degree felony,” the ordinance suggests.
Trespassing in an occupied home is now a first-degree misdemeanor. A third-degree felony would be the next step up.
“Residents have a reasonable expectation of privacy in their homes and more particularly in their bedrooms and other areas where people sleep, which would receive heightened protection from snooping and other forms of voyeurism, which pose significant public safety concerns,” City Attorney Craig Leen said.
Commissioners unanimously passed the ordinance as an “emergency” measure, eliminating the need for a second vote, as normally required for new laws.
Commissioner Vince Lago said the city needs “to make sure that our resident’s feel 100 percent secure.”
“I’m disappointed in the fact that we were unable to arrest those individuals. Hopefully we can right that wrong with this ordinance,” Lago said. “I think this is just a Band-Aid, and we need to set the bar just a little bit higher ... Coral Gables does not put up with this type of behavior.”
Police often don’t arrest people for misdemeanors unless they have an additional reason to do so — like when the suspect poses a risk to public safety or is wanted for another crime. Instead, officers can issue a “notice to appear,” telling the suspect to come to court and answer the charges.
In the Aug. 14 incident, police say the seven suspects entered the Allen home on Tahiti Beach after they celebrated going off to college at a friend’s house a few doors away.
The seven made their way through a communal beach in the Allens’ backyard. According to a police report, the group thought the house was vacant.
Making their way through a faulty back door, the group used their cellphone flashlight application to tour the home. However, Walker Allen, who was asleep with her children, was awakened by “flashes of light” and voices that “sounded like young adults,” according to the police report.
“What the f--- are you doing in my house?” she shouted, according to the police report.
A female voice shouted, “Oh my God,” which was followed by laughter, the report said. The teens quickly ran down the stairs, exited the way they came in and scampered across the backyard beach facing Biscayne Bay.
They were later tracked down at a friend’s home.
On Tuesday, City Attorney Leen assured residents that the city will lobby to make this a priority on next session’s legislative agenda.
“For the time being, this will fill the gap,” Lago said.