Arrests - Arrest Warrants, Arrests Based on Probable Cause, & Notices to Appear
After a criminal investigation is concluded, 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, 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.
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.
In some cases, police officers can make an 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:
- the person committed a felony or misdemeanor or municipal or country ordinance violation in the presence of the officer,
- the officer reasonably believes that the person committed a felony that was actually committed,
- a felony has been or is being committed and officer reasonably believes that the person committed it,
- DUI, and other offenses under Chapter 316.
- violation of injunction for protection,
- domestic violence
- violation of pretrial release in a domestic violence case,
- child abuse,
- criminal mischief,
- trespass in a secure area of an airport,
- assault on a law enforcement officer, firefighter, emergency medical care provider, public transit employees or agents, etc.
- violation of safety zones
When a person is arrested without a warrant, 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:
- whether there is probable cause for the arrest (if the judge holds a probable cause hearing), and
- what the person's bond should be.
Having a criminal defense attorney at first appearance can be crucial. The attorney can 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. An attorney 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.
What is a Notice to Appear?
A Notice to Appear is an arrest. They don't take you down to the jail in handcuffs and book you, but it is a legal arrest all the same. It looks like a traffic ticket, but it has the same legal effect as being placed in handcuffs and taken to jail. If you do not set a court date or show up to a court date that is set, a warrant will be issued for your arrest. When you do appear at court on a Notice to Appear, you will be facing possible jail time and other collateral consequences of having a criminal charge. The charge will show up on your record just as any other arrest would. Many people do not even know that they have been charged with a criminal charge when they are issued a Notice to Appear. But here is the law:
Criminal Rule of Criminal Procedure 3.125
"... 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."
When will a police officer issue a Notice to Appear?
The law authorizes a police officer in limited situations to issue a notice to appear instead of taking a person to jail. An officer may issue a notice to appear if the charge is a misdemeanor or municipal ordinance violation unless the person:
- fails to sufficiently identify him or herself,
- refuses to sign the NTA
- the officer reasonably believes the person poses an unreasonable risk of bodily injury to him or herself or others,
- the person has no ties to the community or that is a substantial risk the person won't appear for court,
- the officer has suspicion the person is wanted in any jurisdiction, or
- the person has previously failed to appear or violated terms of pretrial release.
What happens if I don't appear in court on the Notice to Appear?
If you don't appear in court, an arrest warrant shall be issued.