Ch. 901 ARRESTS Ch When warrant of arrest to be issued Direction and execution of warrant.

Transcription

1 Judicial officers to be committing magistrates. When warrant of arrest to be issued. Direction and execution of Admission to bail when arrest occurs in another county. Issue of warrant when offense triable in another county. When summons shall be issued. How summons served. Effect of not answering summons. Summons against corporation. Effect of failure by corporation to answer summons. When arrest by officer without warrant is lawful. Stop and Frisk Law. Method of arrest by officer by a Method of arrest by officer without Officer may summon assistance. Right of officer to break into building. Use offorce to effect release of person making arrest detained in building. Search of person arrested. Search of person arrested for identifying device indicating a medical disability. Arrest after escape or rescue. Right of person arrested to consult attorney. Municipal officer, arrest outside corporate limits in fresh pursuit. Recognition of International Treaties Act; identification certificate; notification upon arrest. Definition. Notice to appear for misdemeanors or violations of municipal or county ordinances; forms and requisites. Authorization to take person to medical facility. How notice to appear served. Failure to obey written promise to appear. Issuance of warrant on failure to appear. Arrest records; expunging; exceptions. Retail theft; detention and arrest; exemption from liability for false arrest; resisting arrest; penalties Judicial officers to be committing magistrates.-each state judicial officer is a conservator of the peace and a committing magistrate with authority to issue warrants of arrest, commit offenders to jail, and recognize them to appear to answer the charge. He may require sureties of the peace when the peace has been substantially threatened or disturbed. History.-s. l, ch , 1939; CGL 1940 Supp. 8663(1); s. 1, ch ; s. 4, ch ; s. 34, ch cf.-s Parent or guardian to be notified before trial of minor; service CHAPTER 901 ARRESTS 2106 of notice When warrant of arrest to be issued. A warrant may be issued for the arrest of the person complained against if the magistrate, from the examination of the complainant and other witnesses reasonably believes that the person complained against has committed an offense within his jurisdiction. History.-s. 2, ch , 1939; CGL 1940 Supp. 8663(2); s. 5, ch Direction and execution of Warrants shall be directed to all sheriffs of the state. A warrant shall be executed only by the sheriff of the county in which the arrest is made unless the arrest is made in fresh pursuit, in which event it may be executed by any sheriff who is advised of the existence of the An arrest may be made on any day and at any time of the day or night. History.-s. 4, ch , 1939; CGL 1940 Supp. 8663(4); s. 6, ch ; s. 34, ch Admission to bail when arrest occurs in another county.- (1) When an arrest by a warrant occurs in a county other than the one in which the alleged offense was committed and the warrant issued, ifthe person arrested has a right to bail, the arresting officer shall ir;iform him ofhis right and, upon request, shall take him before a magistrate or other official of the same county having authority to admit to bail. The official shall admit the person arrested to bail for his appearance before the magistrate who issued the (2) If the person arrested does not have a right to bail or, when informed of his right to bail, does not furnish bail immediately, the officer who made the arrest or the officer having the warrant shall take him before the magistrate who issued the History.-s. 7, ch , 1939; CGL 1940 Supp. 8663(7); s. 6, ch Issue of warrant when offense trial)le in another county.- (1) When a complaint before a magistrate charges the commission of an offense that is punishable by death or life imprisonment and is triable in another county of the state, but it appears that the person against whom the complaint is made is in the county where the complaint is made, the same proceedings for issuing a warrant shall be used as prescribed in this chapter, except that the warrant shall require the person against whom the complaint is made to be taken before a designated magistrate of the county in which the offense is triable. (2) If the person arrested has a right to bail the officer making the arrest shall inform him of his right to bail and, on request, shall take him before a magistrate or other official having authority to admit to bail in the county in which the arrest is made. The official shall admit him to bail for his appearance before the magistrate designated in the (3) If the person arrested does not have a right to

2 bail or, when informed of his right to bail, does not furnish bail immediately, he shall be taken before the magistrate designated in the History.-s. 8, ch , 1939; CGL 1940 Supp. 8663(8); s. 6, ch When summons shall be issued.-'- (1) When the complaint is for an offense that the magistrate is empowered to try summarily, he shall issue a summons instead of a warrant, unless he reasonably believes that the person against whom the complaint was made will not appear upon a summons, in which event he shall issue a (2) When the complaint is for a misdemeanor that the magistrate is not empowered to try summarily, he shall issue a summons instead of a warrant if he reasonably believes that the person against whom the complaint was made will appear upon a summons. (3) The summons shall set forth substantially the nature of the offense and shall command the person against whom the complaint was made to appear before the magistrate at a stated time and place. History.-s. 9, ch , 1939; CGL 1940 Supp. 8663(9); s. 6, ch How summons served.-a summons shall be served in the same manner as a summons in a civil action. History.-s. 10, ch , 1939; CGL 1940 Supp. 8663(10); s. 6, ch cf.-s Service of process generally Effect of not answering summons. Failure to appear as commanded by a summons without good cause is an indirect criminal contempt of court and may be punished by a fine of not more than $100. When a person fails to appear as commanded by a summons, the magistrate shall issue a If the magistrate acquires reason to believe that the person summoned will not appear as commanded after issuing a summons, he may issue a History.-s. 11, ch , 1939; CGL 1940 Supp. 8663(11); s. 6, ch Summons against corporation. When a complaint of an offense is made against a corporation, the magistrate shall issue a summons that shall set forth substantially the nature of the offense and command the corporation to appear before him at a stated time and place. History.-s. 12, ch , 1939; CGL 1940 Supp. 8663(12); s. 6, ch Effect of failure by corporation to answer summons.-if, after being summoned, the corporation does not appear, a plea of not guilty shall be entered by the court having jurisdiction to try the offense for which the summons was issued, and the court shall proceed to trial and judgment without further process. History.-s. 14, ch , 1939; CGL 1940 Supp. 8663(14); s. 6, ch When arrest by officer without warrant is lawful.-a peace officer may arrest a person without a warrant when: (1) The person has committed a felony or misdemeanor or violated a municipal ordinance in the presence of the officer. Arrest for the commission of a misdemeanor or violation of a municipal ordinance shall be made immediately or in fresh pursuit (2) A felony has been committed and he reasonably believes that the person committed it. (3) He reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it. (4) A warrant for the arrest has been issued and is held by another peace officer for execution. (5) A violation of chapter 316 has been committed in the presence of the officer, Such arrest may be made immediately or on fresh pursuit. (6) The officer has probable cause to believe that the person has committed a battery upon the person's spouse and the officer: (a) Finds evidence of bodily harm; or (b) The officer reasonably believes that there is danger of violence unless the person alleged to have committed the battery is arrested without delay. History.-s. 15, ch , 1939; CGL 1940 Supp. 8663(15); s. 1, ch , 1943; s. 6, ch ; s. 4, ch ; s. 1, ch cf.-ss , Cruelty to children or animals; arrest without Stop and Frisk Law.- (1) This section may be known and cited as the "Florida Stop and Frisk law." (2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense. (3) No person shall be temporarily detained under the provisions of subsection (2) longer than is reasonably necessary to effect the purposes of that subsection. Such temporary detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof. (4) Ifat any time after the onset of the temporary detention authorized by subsection (2), probable cause for arrest of person shall appear, the person shall be arrested. If, after an inquiry into the circumstances which prompted the tempora,ry detention, no probable cause for the arrest of the person shall appear, he shall be released. (5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized. (6) No evidence seized by a law enforcement officer in any search under this section shall be admissible against any person in any court of this state or political subdivision thereof unless the search which disclosed its existence was authorized by and con-

3 ducted in compliance with the provisions of subsections (2)-(5). History.-ss. 1, 2, ch Method of arrest by officer by a war rant.-a peace officer making an arrest by a warrant shall inform the person to be arrested of the cause of arrest and that a warrant has been issued, except when the person flees or forcibly resists before the officer has an opportunity to inform him, or when giving the information will imperil the arrest. The officer need not have the warrant in his possession at the time of arrest but on request of the person arrested shall show it to him as soon as practicable. History.-s. 16, ch , 1939; CGL 1940 Supp. 8663(16); s. 6, ch Method of arrest by officer without -A peace officer making an arrest without a warrant shall inform the person to be arrested of his authority and the cause of arrest except when the person flees or forcibly resists before the officer has an opportunity to inform him or when giving the information will imperil the arrest. History.-s. 17, ch , 1939; CGL 1940 Supp. 8663(17); s. 6, ch Officer may summon assistance.-a peace officer making a lawful arrest may command the aid of persons he deems necessary to make the arrest. A person commanded to aid shall render assistance as directed by the officer. A person commanded to aid a peace officer shall have the same authority to arrest as that peace officer and shall not be civilly liable for any reasonable conduct in rendering assistance to that officer. History.-s. 18, ch , 1939; CGL 1940 Supp. 8663(18); s. 7, ch cf.-s Refusing to assist prison officers in arresting escaped convicts. s Neglect or refusal to aid peace officers Right of officer to break into build ing.- (1) If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be. (2) When any of the implements, devices, or apparatus commonly used for gambling purposes are found in any house, room, booth, or other place used for the purpose of gambling, a peace officer shall seize and hold them subject to the discretion of the court, to be used as evidence, and afterwards they shall be publicly destroyed in the presence of witnesses under order of the court to that effect. History.-s. 19, ch , 1939; CGL 1940 Supp. 8663(19); s. 8, ch cf.-s Finding of gambling implements prima facie evidence of gam bling Use of force to effect release of person making arrest detained in building.-a peace officer may use any reasonable force to liberate himself or another person from detention in a building entered for the purpose of making a lawful arrest. History.-s. 20, ch , 1939; CGL 1940 Supp. 8663(20); s. 9, ch Search of person arrested.- (1) When a lawful arrest is effected, a peace officer may search the person arrested and the area within the person's immediate presence for the purpose of: (a) Protecting the officer from attack; (b) Preventing the person from escaping; or (c) Discovering the fruits of a crime. (2) A peace officer making a lawful search without a warrant may seize all instruments, articles, or things discovered on the person arrested or within the person's immediate control, the seizure of which is reasonably necessary for the purpose of: (a) Protecting the officer from attack; (b) Preventing the escape of the arrested person; or (c) Assuring subsequent lawful custody of the fruits of a crime or of the articles used in the commission of a crime. Hlstory.-s. 21, ch , 1939; CGL 1940 Supp. 8663(21); s. 10, ch Search of person arrested for identifying device indicating a medical disability. Every law enforcement officer, sheriff, deputy sheriff, or other arresting officer shall, when arresting any person who appears to be inebriated, intoxicated, or not in control of his physical functions, examine such person to ascertain whether or not the person is wearing a medic-alert bracelet or necklace or has upon his person some other visible identifying device which would specifically delineate a medical disability which would account for the actions of such person. Any arresting officer who does, in fact, discover such identifying device upon such person shall take immediate steps to aid the affiicted person in receiving medication or other treatment for his disability. History.-s. 1, ch Arrest after escape or rescue.-if a person lawfully arrested escapes or is rescued, the person from whose custody he escapes or was rescued or any other officer may immediately pursue and retake the person arrested without a warrant at any time and in any place. History.-s. 22, ch , 1939; CGL 1940 Supp. 8663(22); s. 11, ch Right of person arrested to consult attorney.-a person arrested shall be allowed to consult with any attorney entitled to practice in this statp; il lone and in private at the place of custody, as often and for such periods of time as is reasonable. History.-s. 24, ch , 1939; CGL 1940 Supp. 8663(24); s. 13, ch Municipal officer, arrest outside corporate limits in fresh pursuit.-a police officer of a municipality, when necessary to make an arrest, may make a fresh pursuit of a person from within the municipality to any point in the county in which the municipality is located when the person pursued has violated a city ordinance or committed a misdemeanor within the municipality, or the officer reasonably believes that the person has committed or is committing a felony. History.-s. l, ch ; s. 14, ch

4 Recognition of International Treaties Act; identification certificate; notification upon arrest.- (1) The following shall be known as the "Recognition Of International Treaties Act." (2) The Department of State may, upon application, issue identification certificates to those official representatives of sovereign nations that are on official business within the boundaries of Florida. (3) Wherever in the state a citizen of any sovereign nation to which the United States extends diplomatic recognition shall be arrested or detained for any reason whatsoever, the official who makes the arrest or detention shall immediately notify the nearest consul or other officer of the nation concerned or, if unknown, the Embassy in Washington, D.C., of the nation concerned or, if unknown, the nearest state judicial officer who shall in turn notify either of the above. Failure to give notice shall not be a defense in any criminal proceedings against any citizen of a sovereign nation and shall not be cause for his discharge from custody. History.-ss. 1 3, ch ; ss. 10, 35, ch ; s. 15, ch Definition.-As used in ss , unless the context clearly indicates otherwise, "notice to appear" means a written order issued by a law enforcement officer in lieu of physical arrest, requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time. Note.-ln re clarification of Florida Rules of Practice and Procedure, Notice to appear for misdemeanors or violations of municipal or county ordinances; forms and requisites.- (1) If a person is arrested for an offense declared to be a misdemeanor of the first or second degree or for a violation of a municipal or county ordinance triable in the county court and does not demand to be taken before a magistrate, the arresting officer or booking officer may issue such person a notice to appear unless: (a) The accused fails to identify himself sufficiently or supply the required information; (b) The accused refuses to sign the notice to appear; (c) The officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to himself or others; (d) The accused has no ties with the jurisdiction reasonably sufficient to assure his appearance or there is substantial risk that he will refuse to respond to the notice; (e) The officer has any suspicion that the accused may be wanted in any jurisdiction; or (f) It appears that the accused has previously failed to respond to a notice or a summons or has violated the conditions of any pretrial release program. (2) If a notice to appear is issued pursuant to subsection (1) for a misdemeanor or violation of a municipal or county ordinance, the notice shall be issued immediately upon arrest or after the person has been taken to police headquarters (3) If the arresting officer, in lieu of issuance of a notice to appear, determines that the accused person should be taken to police headquarters, the booking officer may issue a notice to appear if he determines that there is a likelihood that the accused will appear as directed, based on a reasonable investigation of the following: (a) Residence and length ofresidence in the community; (bl Family ties; (c) Employment record; (d) Character and mental condition; (e) Past record of convictions; and (f) Past history of appearance at court proceedings. (4) The arresting officer shall prepare in quadruplicate a written notice to appear in court containing the name and address of the person, the offense charged, the time and place where the person shall appear in court, the name and address of the court, the name of the arresting officer, and the signature of the person. The court specified in the notice shall be the trial court having jurisdiction to try the offense charged. (5) The issuance of a notice to appear shall not be construed to affect a law enforcement officer's authority to conduct an otherwise lawful search, as provided by law. (6) Rules and regulations of procedure governing the exercise of authority to issue notices to appear shall be established by the chiefs of the respective law enforcement agencies having jurisdiction in order effectively to implement the provisions of ss (7) Nothing contained herein shall prevent the operation of a traffic violations bureau, the issuance of citations for traffic violations, or any procedure pursuant to chapter 316. History.-s. l, ch Authorization to take person to medical facility,-even though a notice to appear is issued, a law enforcement officer shall be authorized to take a person to a medical facility for such care as appropriate How notice to appear served.-the officer shall deliver one copy of the notice to appear to the arrested person, and such person, in order to secure release, shall give his written promise to appear in court by signing the two notice copies to be retained by the officer. The arresting officer or other duly authorized official shall then release the person arrested from custody. Note.-ln re clarification of Florida Rules of Practice and Procedure, Failure to obey written promise to appear.-any person who willfully fails to appear before any court or judicial officer as required by a written notice to appear shall be fined not more than the fine of the principal charge or imprisoned up to the maximum sentence of imprisonment of the prin-

5 cipal charge, or both, regardless of the disposition of the charge upon which he was originally arrested. Nothing in this section shall interfere with or prevent the court from exercising its power to punish for contempt. W.:::.~i;;--~~ ~l~~ifi~!a~~ of Florida Rules of Practice and Procedure, Issuance of warrant on failure to appear.-when a person signs a writt~n notice to appear and fails to respond to the notice to appear, a warrant of arrest shall be issued. Hlstory.-s. 1, ch Arrest records; expunging; exceptions.-if a person who has never previously been convicted of a criminal offense or municipal ordinance violation is charged with a violation of a municipal ordinance or a ~elony or!ilisdei;ne~nor, but.is acquitted or released without bemg adjudicated gmlty, he may file a motion with the court wherein the charge was brought to expunge the record of arrest from the official records of the arresting authority. Notice of such motion shall be served upon the prosecuting authority charged with the du~y of prose~uting the offense and upon the arresting authority. The court shall issue an order to expunge all official records relating to such arrest, indictment or information, trial, and dismissal or discharge. However, the court shall require that nonpublic records be retained by the Department of Criminal Law Enforcement and be made available by said department only to law enforcement agencies in the event of a future investigation of said person relative to a pending charge, indictment, or infori;nati?n again~t or upon said person for an act which, if committed, would be an offense similar in nature to the offense for which said person had been charged and not found guilty. The court shall not e~ter an order expunging the records as above provided when there are several acts, or said person has been charged with several offenses originating out of or related to the offense or offenses for which such person had been charged and not found guilty, and when the charge and adjudication of nonguilt did not include all such charges or all such several acts. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or indictment or information. No person as to whom such order has been entered shall be held thereafter under any provision of Florida law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest in response to any nonjudicial inquiry made of him for any purpose. Hlstory.-s. 1, ch ; s. i, ch Note.-See Johnson v. State, 336 So.2d 93 (Fla. 1976). cf.-s Fingerprinting persons charged with crime Retail theft; detention and arrest; exemption from liability for false arrest; resisting arrest; penalties.- (1) A peace officer, or a merchant, or a merchant's employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person and that he can recover them by taking the person into custody, may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time. Such taking into custody and detention by a peace officer, merchant, or merchant's employee shall not render such police officer, merchant, or merchant's employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention. (2) Any peace officer may arrest either on or off the premises and without warrant any person he has probable cause for believing has committed larceny in retail or wholesale establishments. (3) A merchant or a merchant's employee who causes such arrest as provided for in subsection (1) hereof of a person for larceny of goods held for sale shall not be criminally or civilly liable for false arrest or false imprisonment where the merchant or merchant's employee has probable cause for believing that the. person arrested committed larceny of goods held for sale. (4) An individual who resists the reasonable effort of a peace officer, merchant, or merchant's employee to recover merchandise which the peace officer, merchant, or merchant's employee had probable cause to believe the individual had concealed or removed from its place of display or elsewhere and is subsequently found to be guilty of larceny of the subject merchandise shall be guilty of a misdemeanor of the first degree, punishable as provided in s or s unless the individual did not know, or have reason to know, that the person seeking to recover the merchandise was a peace officer, merchant, or merchant's employee. History.-ss. 1-3, ch , 1955; ss. i, 2, ch ; s. 3, ch ; s. 806, ch ; s. 1, ch ; s. 65, ch ; s. 1, ch Note.-Former s