Arrests - Arrest Warrants, Arrests Based on Probable Cause, & Notices to Appear

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After a criminal investigation is concluded in Florida, the police officer decides whether to make an arrest based on probable cause. There are two ways that a police officer can make an arrest. First, in some cases, the officer can arrest without a warrant based on probable cause. Second, an officer can seek an arrest warrant signed by a judge, who determines that there is probable cause in the case.

What is probable cause?

Probable cause is not defined in Florida, but is generally understood to mean that the evidence is more likely than not that the person committed the crime. The evidence can come in the form of an affidavit, complaint or deposition of a law enforcement officer. Typically, this is the arrest warrant or the arrest and booking report.

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Florida arrest warrants must be in writing, setting forth substantially the nature of the offense, commanding the person to be arrested, with the person's name (or if unknown, with a reasonable certain description), the date issued, the county, and must be signed by a judge with the amount of bail and return date.

Typically, a police officer will go to the State Attorney's Office and open up an arrest warrant file. They will speak with the Assistant State Attorney and together the officer and Assistant State Attorney will draft an arrest warrant. The arrest warrant will include a factual statement by the officer describing probably cause for the arrest. The police officer, and/or the Assistant State Attorney will then take the arrest warrant affidavit to a judge. The judge will review the affidavit and if the judge believes that probable cause is established in the affidavit, will issue an arrest warrant. The judge will also assign a bond, usually upon recommendation of the police officer and/or assistant state attorney. Once the person is arrested, they can post the bond and get out of jail without going in front of a judge. Some charges require that no bond be set and that the person go before a judge within 24 hours for a First Appearance.

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In some cases, police officers can make a Florida arrest without an arrest warrant. The officer must have probable cause to believe the person committed the crime. Within 24 hours, a judge will review the evidence to make sure that there is probable cause.

Authorization to arrest a citizen without an arrest warrant is found in Florida Rules of Criminal Procedure 901.15.

An officer may arrest a person without a warrant when:

1. the person committed a felony or misdemeanor or municipal or country ordinance violation in the presence of the officer,
   
2. the officer reasonably believes that the person committed a felony that was actually committed,
3. a felony has been or is being committed and officer reasonably believes that the person committed it,
4. DUI, and other offenses under Chapter 316.
   
5. violation of injunction for protection,
6. domestic violence
   
7. violation of pretrial release in a domestic violence case,
   
8. child abuse,
9. battery
10. criminal mischief,
11. trespass in a secure area of an airport,
12. assault on a law enforcement officer, firefighter, emergency medical care provider, public transit employees or agents, etc.
    
13. violation of safety zones

When a person is arrested without a warrant in Florida, that person must be brought before a judge within 24 hours of the person's arrest, for First Appearance. Often, in conjunction with the First Appearance, the judge will determine two things:

1. whether there is probable cause for the arrest (if the judge holds a probable cause hearing), and
   
2. what the person's bond should be.
   

Having a Florida criminal defense attorney at first appearance can be crucial. The criminal attorney can often save you money by seeking a lower bond or release on your own recognizance. The attorney can also challenge the probable cause.

Also, there is often tremendous pressure for people to plead guilty at first appearance. A criminal lawyer can take that pressure off of you by obtaining a bond from the court, passing the case for arraignment and helping you through the process, without the pressure of having to decide whether to plead guilty at first appearance and whether you will be punished if you decide not to plead guilty at first appearance.

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The key words here are may and unless. So the officer may issue a notice to appear or make an arrest. It is their choice unless any of the 6 enumerated conditions above are present. If they are, then the officer shall make an actual arrest. The original officer or a booking officer at the jail may issue an NTA. The booking officer would have to investigate the person's residence, length of residence in the community, employment record, character and mental condition, past record of convictions and past history of appearances at court proceedings.

What happens if I don't appear in court on the Notice to Appear?

If you don't appear in court, a Florida arrest warrant shall be issued.

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