criminal procedure

“You Are Under Arrest For………”

Those words can be striking and being placed under arrest can be a scary and confusing experience. Not only is it confusing for the person arrested, but it can be just as scary, if not more, for the family and friends of the person arrested. During this confusion, the person arrested often develops a misconception that the police or state attorney are looking out for that person’s interest. Remember, the police and the state attorney have the goal of solving the case and proving that the arrested person committed the  alleged crime, and they can do whatever they can under the law to assist them in proving their case. Methods of Arrest

There are three ways you can be placed under arrest: (1) through an arrest warrant, also known as a capias; (2) through an officer actually seeing you  “from his/her point of view” commit a crime; or (3) if an officer has cause to believe you committed a crime.

Capias /Arrest Warrant

Under Florida Criminal Procedure Rule 3.121 an arrest warrant shall have the following requirements:

(1) be in writing and in the name of the State of Florida

(2) set forth substantially the nature of the offense

(3) command that the person against whom the complaint was made be arrested and brought before a judge

(4) specify the name of the person to be arrested or, if the name is unknown to the judge, designate the person by any name or description by which the person can be identified with reasonable certainty

(5) state the date when issued and the county where issued

(6) be signed by the judge with the title of the office and

(7) in all offenses bailable as of right be endorsed with the amount of bail and the return date.

Generally, if the elements above are met, a valid warrant exists and the sheriff can execute the warrant.  (However, sometimes a faulty warrant may lead to serious problems for the police. See: )

Valid Warrants can be a powerful tool for the police in arresting individuals and may limit arguments that a potential defendant may have regarding the “actual arrest.”

An Officer Sees You Commit A Crime

Unlike a warrant, if an officer sees you commit a crime he or she can legally place you under arrest OR he or she can give you a Notice to Appear.

Under Florida Criminal Procedure Rule 3.130, if you are placed under arrest, within 24 hours you will have a First Appearance. Under Florida Criminal Procedure Rule 3.130(b), the judge shall immediately inform the defendant of the charge and provide the defendant with a copy of the complaint. The judge shall also adequately advise the defendant that:

(1) the defendant is not required to say anything, and that anything the defendant says may be used against him or her;

(2) if unrepresented, that the defendant has a right to counsel, and, if financially unable to afford counsel, that counsel will be appointed; and

(3) the defendant has a right to communicate with counsel, family, or friends, and if necessary, will be provided reasonable means to do so.

Also, during the first appearance the Judge generally has a Probable Cause hearing.

Under Florida Criminal Procedure Rule 3.133 (a)(1):

a nonadversary probable cause determination shall be held before a judge within 48 hours from the time of the defendant’s arrest; provided, however, that this proceeding shall not be required when a probable cause determination has been previously made by a judge and an arrest warrant issued for the specific offense for which the defendant is charged.

The judge after a showing of extraordinary circumstance may continue the proceeding for not more than 24 hours beyond the 48-hour period. The judge, after a showing that an extraordinary circumstance still exists, may continue the proceeding for not more than 24 additional hours following the expiration of the initial 24-hour continuance.

Unlike a situation where there is a warrant, the lack of a warrant may give the defendant a better chance of arguing there was an invalid arrest.

Notice to Appear

If you are not arrested by the officer, a ticket will be issued with a Notice To Appear. Essentially, you are free to leave but you MUST appear at the scheduled date or a capias (warrant) may be issued.  Under Florida Criminal Procedure 3.125 (b):

If a person is arrested for an offense declared to be a misdemeanor of the first or second degree or a violation, or is arrested for violation of a municipal or county ordinance triable in the county, and demand to be taken before a judge is not made, notice to appear may be issued by the arresting officer unless:

(1) the accused fails or refuses to sufficiently identify himself or herself or supply the required information;

(2) the accused refuses to sign the notice to appear;

(3) the officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to the accused or others;

(4) the accused has no ties with the jurisdiction reasonably sufficient to assure the accused’s appearance or there is substantial risk that the accused will refuse to respond to the notice;

(5) the officer has any suspicion that the accused may be wanted in any jurisdiction; or

(6) it appears that the accused previously has failed to respond to a notice or a summons or has violated the conditions of any pretrial release program.

Under Florida Rules of Criminal Procedure 3.125 (c), if you are placed under arrest then the booking officer may issue notice to appear if the officer determines that there is a likelihood that the accused will appear as directed, based on a reasonable investigation of the accused’s:

(1) residence and length of residence in the community;

(2) family ties in the community;

(2) employment record;

(3) character and mental condition;

(4) past record of convictions; or

(5) past history of appearance at court proceedings.

The Notice to Appear scenario gives the defendant more flexibility in terms of knowing that he is possibly facing charges, and it gives him a chance to be less overwhelmed by the system (i.e. not having to be arrested, taken to jail, booked, seeing a judge and getting released on bond or own recognizant). Furthermore, it provides the defendant time to consult with an attorney, work on the case himself, or even have the possibility of seeking a public defender.

Getting arrested and the days following the arrest  can be confusing and scary for the person arrested and their family members. The most important thing to do is to stay calm and remember you have rights.