Florida Criminal Procedure Coffey Spring 2018
1/9/18 Arrest (Class#1)
For our first class, please see http://www.youtube.com/watch?v=wOx6OM01M5M
A. What is arrest?
California v. Hodari D., 499 U.S. 621, 622-627 (1991)
Facts: The Petitioner and other youths fled after seeing a patrolling police car. The police gave chase and ordered the Petitioner to stop. The Petitioner continued to flee, throwing a rock later identified as crack cocaine. The Petitioner was subsequently caught.
Issue: Has a seizure occurred when a person, who is told to stop by police, runs from the police?
Rule: An arrest (seizure) occurs when physical force has been applied to a person, or when a person submits to the assertion of authority.
Held: No. A seizure of a person has not occurred until that person has been physically seized, or seized through the submission to authority.
Discussion. An arrest has not occurred when a person runs from the police.
B. Warrantless arrest (Fla. Stat. § 901.15(1), (2), (3), and (5))
Although Florida statute law provides for arrest pursuant to warrant, see materials infra at
F, and arrest pursuant to the filing of a prosecutor’s Information, see Fla. Stat. 932.48, the vast
majority of arrests in Florida are made by police officers acting without warrant.
(The general rule that a warrantless misdemeanor arrest must be for a crime occurring in
the arresting officer’s presence is set out in § 901.15, as are a number of exceptions. But certain
other exceptions are scattered throughout the Florida Statutes, e.g., § 812.015(4) (retail theft or
farm theft); § 316.645 (certain automobile accidents); § 828.17 (animal cruelty); § 893.13(6)(d)
(possession of marijuana); § 790.02 (carrying a concealed weapon); § 856.031 (“loitering and
prowling”);§ 509.162(2) (theft in a public lodging establishment or restaurant); § 509.143(2)2
(disorderly conduct on licensed premises); § 327.30(6) (boating accidents); § 784.048(6)
C. “Stop and frisk” (a/k/a Terry stops)
Terry v. Ohio, 392 U.S. 1 (1968)
Facts: The officer noticed the Petitioner talking with another individual on a street corner while repeatedly walking up and down the same street. The men would periodically peer into a store window and then talk some more. The men also spoke to a third man whom they eventually followed up the street. The officer believed that the Petitioner and the other men were “casing” a store for a potential robbery. The officer decided to approach the men for questioning, and given the nature of the behavior the officer decided to perform a quick search of the men before questioning. A quick frisking of the Petitioner produced a concealed weapon and the Petitioner was charged with carrying a concealed weapon.
Rule: An officer may perform a search for weapons without a warrant, even without probable cause, when the officer reasonably believes that the person may be armed and dangerous.
Issue: Whether a search for weapons without probable cause for arrest is an unreasonable search under the Fourth Amendment to the United States Constitution (”Constitution”)?
Held: The Supreme Court of the United States (”Supreme Court”) held that it is a reasonable search when an officer performs a quick seizure and a limited search for weapons on a person that the officer reasonably believes could be armed. A typical beat officer would be unduly burdened by being prohibited from searching individuals that the officer suspects to be armed.
Dissent: Justice William Douglas (”J. Douglas”) dissented, reasoning that the majority’s holding would grant powers to officers to authorize a search and seizure that even a magistrate would not possess.
Concurrence: Justice John Harlan (”J. Harlan”) agreed with the majority, but he emphasized an additional necessity of the reasonableness of the stop to investigate the crime.
Justice Byron White (”J. White”) agreed with the majority, but he emphasized that the particular facts of the case, that there was suspicion of a violent act, merit the forcible stop and frisk.
Discussion. The facts of the case are important to understand the Supreme Court’s willingness to allow the search. The suspicious activity was a violent crime, armed robbery, and if the officer’s suspicions were correct then he would be in a dangerous position to approach the men for questioning without searching them. The officer also did not detain the men for a long period of time to constitute an arrest without probable cause.
See: Fla. Stat. §901.151 – “Stop & Frisk Law”
Illinois v. Wardlow, 528 U.S. 119, 121-126 (2000)
Facts: While holding an opaque bag in an area known for heavy narcotics trafficking, the defendant flees on seeing police officers patrolling, and two officers catch up to him and conduct a pat-down weapons search finding a .38 caliber handgun on his person. Trial court denied the defendant’s motion to suppress, but the appellate court reversed. The Illinois Supreme Court upheld the lower appellate court’s result stating that the combination of sudden flight and presence in a high crime area did not reach the status of reasonable suspicion necessary to justify a Terry stop. The Supreme Court granted certiorari to the State of Illinois.
Rule: Nervous, evasive behavior and location in a high crime area are relevant factors in determining the reasonable suspicion necessary for a Terry stop under the Fourth Amendment.
Issue: Are officers justified in suspecting that a defendant was involved in criminal activity based on the combination of their presence in an area of frequent narcotics trafficking and the defendant’s unprovoked flight on noticing them?
Held: Yes. Reverse and remand the judgment.
• Reasonable suspicion justifying a Terry stop is met in this situation. Determination of reasonable suspicion has to be based on commonsense inferences about human behavior, and officers are justified in suspecting that defendant was involved in criminal activity based on his flight and the fact that he was in a high crime area.
• Officers are not required to ignore relevant characteristics of a location in determining whether further investigation is warranted.
• Headlong flight is suggestive of wrongdoing.
• Concurrence. Justice John Paul Stevens concurred in part and dissented in part in the course of saying he agreed with the court’s rejection of a rule proposed by the state courts authorizing the detention of anyone who flees at the sight of a police car. He also rejected the idea of the opposite rule, that it would never justify a Terry stop. He also expressed the view that even in a high crime neighborhood, unprovoked flight does not automatically lead to reasonable suspicion justifying a Terry stop and frisk.
Discussion: This case shifts the balance in the direction of police freedom as opposed to individual rights. The question remains however, to what extent this case restricts the ability of citizens to avoid the police and yet not still be stopped. May walking into a convenience store when police drive up become the basis for a Terry stop? It seems unlikely, but these are the issues that this result creates.
C.E.L. v. State, 24 So.3d 1181 (Fla. 2009)
Facts: A youth is standing around in a high crime area (where he lives.) The police show up with identifiable clothes on and start to approach him and he runs away. They tell him to stop, he doesn’t. They chase him, tackle him, frisk him, and find nothing on him. The police say they told him to stop and when he failed to do so they were entitled to arrest him.
Police said the factors were: he ran away and was in a high crime area.
Issue: Was the command to “stop” a lawful command under the circumstances.
Rule: If there is articulable reasonable suspicion and a suspect flees after being told to stop he is guilty of resisting arrest without violence.
Conclusion: The court says, “Wardlow says high crime area plus head-long flight from cops = articulable reasonable suspicion. “
Dissent: I think we should revisit what Wardlow meant with “high crime area” and “head-long flight from the police.” How large is the high crime area? Where are the lines? What crimes make it a high crime area? Where is the area compared to?
D. Knock and announce (Fla. Stat. §§ 901.19, 933.09)
State v. Cable, 51 So.3d 434 (Fla. 2010)
Facts: Cops had warrant and did not knock and announce and it “came to life” in court.
Issue: Whether FL follows US SC in not suppressing evidence for failure to knock and announce.
Conclusion: 1964 case: under the statute, violation of knock and announce results in evidence suppression.
3 situations, no knock:
Someone is known to be in danger.
Destruction of evidence.
Feudal circumstances (GUNFIRE!!)
E. Hot pursuit (Fla. Stat. § 901.25)
Porter v. State, 765 So.2d 76 (Fla. 4th DCA 2000)
Facts: Pompano Beach police officers received a BOLO that an armed robbery had occurred…PBP Officers Romb and Fletcher were close to the area and were notified by an off-duty officer that the suspected vehicle was observed getting onto I-95 South. After some waiting the officers spotted the Cadillac which matched the BOLO description and observed it contained 4 black males, also matched the BOLO, speeding down the road. They followed them into Ft. Lauderdale and when they parked at an apartment complex the officers detained the four individuals as they attempted to flee. They observed items in the vehicle matching the description of the stolen items and promptly arrested the men. (in Ft. Lauderdale by Pompano Beach Officers.)
Held: Generally, an officer of a county or municipality has no official power to arrest an offender outside the boundaries of the officer’s county or municipality. The fresh pursuit exemption allows officers who attempt to detain or arrest within their territorial jurisdiction to continue to pursue a fleeing suspect even though the suspect crosses jurisdictional lines. The power to arrest after fresh pursuit presupposes that the officer had legally sufficient grounds to detain or arrest before arrestees left officer’s jurisdiction.
Thus, fresh pursuit encompasses: 1) that the police act without unnecessary delay; 2) that the pursuit be continuous and uninterrupted; and 3) that there be a close temporal relationship between the commission of the offense and the commencement of the pursuit and apprehension of the suspect.
Officers were in “fresh pursuit” when they responded 1) without unnecessary delay to the “be on the look-out” (BOLO) and, 2) in continuous and uninterrupted fashion, sought and apprehended the occupants of the car described in the BOLO within a matter of minutes, and thus, officers were authorized to make arrests outside their territorial jurisdiction for robbery committed in their jurisdiction; receding from State v. Greer, 761 So.2d 343. West’s F.S.A. § 901.25.
Fla. Stat. §§ 23.1225, 166.0495
A. Arrest pursuant to warrant or other process
1. Arrest warrant (Fla.R.Crim.P. 3.121) (Fla. Stat. §§ 901.01, 901.02)
An arrest warrant “is a legal process issued by competent legal authority, directing the arrest of a certain person or persons, upon sufficient grounds, which must be stated in the warrant.”
Harvey Cortlandt Voorhees, The Law of Arrest in Civil and Criminal
Actions sec. 27 at p. 18 (1904).
B. Capias, alias, and pluries
obable cause to believe that any person whom the officer 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, the officer 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 conducted in compliance with the provisions of subsections (2)-(5).
Arrest warrant (Fla.R.Crim.P. 3.121) (Fla. Stat. §§ 901.01, 901.02)
Rule 3.121. Arrest Warrant
(a) Issuance. –An arrest warrant, when issued, shall:
(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.
(b) Amendment. –No arrest warrant shall be dismissed nor shall any person in custody be discharged because of any defect as to form in the warrant; but the warrant may be amended by the judge to remedy such defect.
901.01 Judicial officers have committing authority.—Each state judicial officer is a conservator of the peace and has committing authority to issue warrants of arrest, commit offenders to jail, and recognize them to appear to answer the charge. He or she may require sureties of the peace when the peace has been substantially threatened or disturbed.
901.02 Issuance of arrest warrants.—
(1) A judge, upon examination of the complaint and proofs submitted, if satisfied that probable cause exists for the issuance of an arrest warrant for any crime committed within the judge’s jurisdiction, shall thereupon issue an arrest warrant signed by the judge with the judge’s name of office.
(2) The court may issue a warrant for the defendant’s arrest when all of the following circumstances apply:
(a) A complaint has been filed charging the commission of a misdemeanor only.
(b) The summons issued to the defendant has been returned unserved.
(c) The conditions of subsection (1) are met.
(3) A judge may electronically sign an arrest warrant if the requirements of subsection (1) or subsection (2) are met and the judge, based on an examination of the complaint and proofs submitted, determines that the complaint:
(a) Bears the affiant’s signature, or electronic signature if the complaint was submitted electronically.
(b) Is supported by an oath or affirmation administered by the judge or other person authorized by law to administer oaths.
(c) If submitted electronically, is submitted by reliable electronic means.
(4) An arrest warrant shall be deemed to be issued by a judge at the time the judge affixes the judge’s signature or electronic signature to the warrant. As used in this section, the term “electronic signature” has the same meaning as provided in s. 933.40.
RULE 3.730. ISSUANCE OF CAPIAS WHEN NECESSARY TO BRING
DEFENDANT BEFORE COURT
Whenever the court deems it necessary to do so in order to procure the presence of the defendant before it for the adjudication of guilt or the pronouncement of sentence, or both, when the defendant is not in custody, it shall direct the clerk to issue immediately or when directed by the prosecuting attorney a capias for the arrest of the defendant. Subsequent capiases may be issued from time to time by direction of the court or the prosecuting attorney.
Notice to appear (Fla.R.Crim.P. 3.125(a))
RULE 3.125. NOTICE TO APPEAR
(a) Definition. Unless indicated 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.