Former Prisoner Arrested in “I Just Got Out of Prison” T-Shirt May Be Going Back

This seems straightforward on its face, but it happened in Florida, so you can’t take that for granted.

Sources report that a Florida man is “back behind bars” after an incident on December 3. According to WFLA News, witnesses in the Tampa area called police to report seeing someone enter an unlocked car parked outside an apartment building. Entering an unlocked car isn’t a crime unless you’re not the owner (though I suppose you might be able to think of a way to do it illegally), and the report doesn’t state why the witnesses thought a crime was in progress. Of course the witnesses may have included the car’s owner, or perhaps friends of the car’s owner who didn’t recognize the man entering it.

Or they may have noticed that he was wearing a T-shirt that read “I JUST GOT OUT OF PRISON.”

That too is not a crime, of course, nor is it an admission that the person wearing the shirt has ever committed or been convicted of any crime. It could be a joke shirt, such as the one above that I created on a T-shirt website. One might buy such a shirt after visiting Alcatraz, for example, a prison that for some reason San Francisco, of all places, preserves as one of its most prominent landmarks. New York has the Statue of Liberty in its harbor, and San Francisco has—a prison? Okay. In any event, a tourist might buy such a shirt after “getting out” of Alcatraz, you see. It would be literally true, but also false, and therefore “funny.” Or the humor might derive simply from the idea that one who has just finished a prison term is unlikely to wear a shirt publicizing that fact, and so the shirt’s wearer is likely not, as it suggests, a criminal but merely a humorous person. The First Amendment protects the right to wear shirts of that kind—which is not to say it’s necessarily a good idea (or that you should accept the drink the person is offering you). It might give people the wrong impression.

Similarly, as we discussed a while back, wearing a T-shirt saying “What’s Mine is Mine, What’s Yours Is Mine” is not a criminal act, but you shouldn’t wear one while crawling through someone else’s window. See Bad Shirt for a Burglary” (Mar. 26, 2012). I suggested at the time that this shirt might be admissible evidence, not because it tends to prove the wearer actually considers other people’s property to be his (it doesn’t), but because it would tend to prove the burglar’s identity (if witnesses saw the burglar wearing it). On the other hand, there is a risk that a jury might wrongly interpret the message on the shirt as an admission, so a judge might exclude it for that reason. (More recently, a novelty bag generated a similar discussion. See Bag Marked ‘Bag Full of Drugs’ Allegedly Full of Drugs” (Feb. 5, 2020)). If you are accused of stealing the shirt, on the other hand, then it might well be admissible as evidence of the theft. SeeTips on Wearing the Clothes You Just Stole From Next Door” (May 25, 2012). But again the message itself would not be the problem.

Returning to the message at issue here, the shirt-generated humor would have a different quality if the wearer had, in fact, just gotten out of prison, especially if he were arrested while wearing a shirt saying so. Different, and in my view, better.

Police who responded to the call quickly located a white man about two blocks from the crime scene who was wearing tan shorts and a black T-shirt that said “I JUST GOT OUT OF PRISON.” This matched the witnesses’ description, so police suspected they had their man. From the report:

Deputies tracked the suspect down about two blocks away and questioned him about the alleged burglary. According to the arrest report, he refused to identify himself and cooperate with the investigation. “He was told he would be charged with obstruction and he continued to refuse, stating, ‘call my lawyer’,” the arrest report stated. Michael Gordon, 46, was identified via his fingerprints and was charged with obstruction by a disguised person. He was booked into the Pinellas County Jail.

I’m assuming this fact pattern will be on your next Crim Law test, so please apply my usual disclaimer to the following analysis.

Did police have probable cause to detain this man and question him about the alleged burglary? Trick question! Under Terry v. Ohio they only need “reasonable suspicion” to do that. He was two blocks away and matched the description closely, so no problem there. Did they have probable cause to arrest him for the alleged burglary? That’s less clear. Under Florida law, entering a building or “conveyance” is burglary if done “with the intent to commit an offense therein….” Did this guy intend to commit an offense (like theft) therein? Seems likely. But please don’t write “yes, because it seems likely to me” on your test. The report doesn’t suggest that the witnesses saw him take anything or that the police found him with anything taken from the car. It’s hard to think of another reason he might have gotten into someone else’s car, but please don’t write “yes, because I can’t think of another reason” on your test. It isn’t a crime just to get in an unlocked car.

Well, it is, but it isn’t “burglary.” It could be “trespass,” specifically “trespass in [a] structure or conveyance.” That’s a crime in Florida if you “willfully” enter a conveyance without the owner’s permission. “Willfully” means “voluntarily and consciously, not accidentally,” and there’s no suggestion that he tripped and fell into the car, so it seems like they would’ve had probable cause to arrest him for criminal trespass.

But they didn’t charge him with burglary or trespass, according to the report (and the Pinellas County Sheriff’s helpful “Who’s in Jail?” search tool). They charged him with “obstruction by a disguised person,” which the report just states without explanation as if that were a normal thing. Let us inquire further.

Florida does indeed have a crime called “obstruction by a disguised person“:

Whoever in any manner disguises himself or herself with intent to obstruct the due execution of the law, or with the intent to intimidate, hinder, or interrupt any officer …, whether such intent is effected or not, shall be guilty of a misdemeanor of the first degree….

But the report doesn’t say anything about a “disguise.” Nothing about a mask, or a hood, or even pulling a T-shirt that said “I JUST GOT OUT OF PRISON” up over his face. What it says is that “he refused to identify himself and cooperate with the investigation.” Refusing to identify yourself is not a “disguise.” And you don’t have to take my word that it isn’t, because Florida courts have held at least six times that it isn’t. See, e.g., Hartley v. State, 372 So. 2d 1180 (1979) (holding “disguise” means altering appearance, not giving a false name). If giving a false name isn’t “obstruction by disguise,” then giving no name also isn’t. (This is setting aside constitutional arguments about whether you can be compelled to identify yourself.)

[NOTE: Miranda joke deleted because that case may not apply here]

Again, seems like they had probable cause to charge him with criminal trespass, so why they chose this bogus charge instead is a little baffling. I suspect they enjoy demanding that people identify themselves and so that’s the first thing that came to mind, but I’m speculating.

I should clarify that (arguably) the suspect here had not “just” gotten out of prison—the report says he was released in March after serving time for something (it didn’t say what). But my headline is accurate, and it would still be funny if he had been arrested wearing a shirt that said “I HAVE A CRIMINAL RECORD,” for example, and for basically the same reason. Relevant to prove identity? Yes. Unduly prejudicial? Maybe. A good idea to wear it while committing a crime? Nope.

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