Bondsman Authority to Arrest

An out-of-state bondsman has the authority to recapture a principal in Florida, if he/she holds an equivalent license (to that which is issued in Florida) by the state where the bond was written. Florida Statutes § 648.30(3). Additionally, the power of an out-of-state bondsman is derived from federal common law and recognized by the Florida Supreme Court.

Bondsmen have no authority under § 903 or § 648 to be armed

unless

A bondsman must possess a valid license under § 790.06 to carry a concealed weapon or firearm.

in the case of a grave crime (felony offense that would endanger the public safety) and pursuant to a decision by the competent judicial authority. His immunity from criminal jurisdiction is limited to acts performed in the exercise of consular functions and is subject to court determination.

Consular Officer Driving While Under the Influence

1. Take him or her to the station or a location where he or she can recover sufficiently to enable him to drive safely.

2. Take him or her to a telephone so that he or she can call a relative or a friend to come for him or her.

3. Call a taxi for him or her.

4. Take him or her home.

Offenses Involving Family Members of a Consular Officer - Family members of a Consular Officer cannot claim immunity.

Loiterer or Prowler § 856.021

The crime of loitering and prowling requires proof of two elements, both of which must be committed in the officer’s presence prior to arrest. The accused was (1) loitering and prowling in a manner not usual for law-abiding citizens, and (2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property located in the vicinity.

Probable Cause

Jenkins v. State, 978 So. 2d 116 (Fla. 2008) -

Misdemeanor exceptions 2013

A violation of Chapter 316, State Uniform Traffic Control, has been committed in the presence of the officer. See misdemeanor exception source at § 901.15(5) for important additional details.

§ 790.233, Possession of firearm or ammunition prohibited when person is subject to a domestic violence injunction;

§ 741.31, Violation of a domestic violence injunction;

§ 784.047, Penalties for violating protective injunctions, which violates: an injunction for protection entered pursuant to § 741.30, or

§ 784.046, Action by victim of repeat violence, sexual violence, or dating violence for protective injunction, or

a foreign protection order accorded full faith and credit pursuant to § 741.315, Recognition of foreign protection orders.

See misdemeanor exception source at § 901.15(6) for important additional details.

An act of domestic violence, as defined in § 741.28. See misdemeanor exception source at § 901.15(7) for important additional details.

An act of child abuse, as defined in § 827.03, Abuse, aggravated abuse, and neglect of a child or has violated § 787.025, Luring or enticing a child. See § 901.15(8) for important additional details.

Any battery upon another person, as defined in § 784.03. Misdemeanor exception source: § 901.15(9)(a).

Criminal mischief or a graffiti-related offense as described in § 806.13. Misdemeanor exception source: 901.15(9)(b).

A violation of a safety zone, security zone, regulated navigation area, or naval vessel protection zone as described in § 327.461. Misdemeanor exception source: § 901.15(9)(c).

An act that violates a condition of pretrial release provided in § 903.047 when the original arrest was for an act of domestic violence as defined in § 741.28. Misdemeanor exception source: § 901.15(13).

An act of trespass in a secure area of an airport when signs are posted in conspicuous area of the airport which notify that unauthorized entry into such areas constitutes a trespass and specify the methods for gaining authorized access to such areas. See misdemeanor exception source at § 901.15(14) for important additional details.

An assault upon a law enforcement officer, a firefighter, an emergency medical care provider, public transit employees or agents, or other specified officers as set forth in § 784.07 or an assault or battery upon any employee of a receiving facility as defined in § 394.455 who is engaged in the lawful performance of his or her duties. Misdemeanor exception source: § 901.15(15).

A criminal act according to § 790.01, Carrying concealed weapons. Misdemeanor exception source: § 790.02.

A criminal act according to § 856.021, Loitering or prowling. Misdemeanor exception source: § 856.031.

Possession of not more than 20 grams of cannabis according to § 893.13(6)(b). Misdemeanor exception source: § 893.13(6)(d).

An act of retail theft, farm theft, or transit fare evasion as defined in § 812.015. Misdemeanor exception source: § 812.015.

Any offense committed under the provisions of Chapter 316, State Uniform Traffic Control or Chapter 322, Drivers’ Licenses, in connection with a crash after investigation at the scene. Misdemeanor exception source: § 316.645.

Any violation of § 748.048, Stalking. Misdemeanor exception source: § 784.048(6).

Any acts of a breach of the peace or disorderly conduct as defined in § 877.03 on the premises of a licensed public lodging establishment as defined in § 509.013(4)(a). Misdemeanor exception source: § 509.143(2).

Any act of trespass on a campus or other facility of a school as defined in § 810.097. Misdemeanor exception source: § 810.097(4).

Civil Action for Deprivation of Rights

Marshall v. Sawyer-

Conspiracy to Interfere with Civil Rights–Depriving Persons of Rights or Privileges: (1) Preventing officer from performing duties

If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; (2) Obstructing justice; intimidating party, witness, or juror

If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; (3) Depriving persons of rights or privileges

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators

This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same):

It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured. Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.

FREEDOM OF RELIGION AND ANIMAL SACRIFICES

Lukumi Babalu Aye Inc. v. Hialeah, 508 U.S. 520 (1993)-

Pre-trial Briefings

are set

Intent––The Burden of Proof there are 3

1. Specific intent

2. General intent

3. No intent

Lineups and Confrontations

U.S. v. Sanchez, 422 F.2d 1198 (2nd Cir. 1970)

Lineups and Confrontations

U.S. ex rel. Cummings v. Zelker, 455 F.2d 714 (2nd Cir. 1972)

Lineups and Confrontations

Stovall v. Denno, 388 U.S. 293 (1967)

Conducting Identification Confrontation

Ashford v. State, (Fla. 1973) Time Constraint

Conducting Identification Confrontation

Ashford v. State, (Fla. 1973) (Right to Have Counsel Present)-

Photographic Displays

Simmons v. United States, 390 U.S. 377, 384 (1968)

Photographic Displays

M.J.S. v. State, 386 So. 2d 323 (Fla. 2d DCA 1980) -

Photographic Displays

Kirby v. Illinois, 406 U.S. 682 (1972)

Photographic Displays

United States v. Ash, 413 U.S. 300 (1973) -

Lineups

United States v. Thomas, 543 F.2d 1226 (8th Cir. 1976)

Lineups

United States v. Wade, 388 U.S. 218, 222 (1967) -

Lineups

Baxter v. State,(Fla. 2d DCA 1978) -

Lineups

Smith v. State, 362 So. 2d 417 (Fla. 1st DCA 1978) -

Fifth Amendment Rights

Miranda v. Arizona, 384 U.S. 436, 444 (1966) -

Fifth Amendment Rights

Orozco v. Texas 394 U.S. 324 (1969) -

Fifth Amendment Rights

Edwards v. Arizona, 451 U.S. 477, 482 (1981) (Invoke Counsel)

(Edwards Rule)

When Miranda warnings are NOT required:

1. During the typical traffic stop, including DUI, i.e., until “custodial interrogation” commences.

2. During a typical “stop and frisk.”

3. During ordinary field or “on the scene” investigations, e.g., for questions like: “What happened here?” or “Did anyone see what happened to the gun?”

4. During street encounters when the subject has reason to believe that he or she is free to leave.

5. During voluntary appearances at police headquarters where the subject has no reason to believe that he or she is not free to leave.

6. During interviews at the subject’s home or office when the subject has no reason to believe that he or she is not free to terminate the interview and dismiss the officers.

7. During interviews in stores, restaurants, or other places of public accommodations when the subject has no reason to believe he or she is not free to leave.

8. Generally, when a subject is confined in a hospital but not under arrest– exception: suspect in pain and under sedation.

9. When the interrogator is not a law enforcement officer, e.g., department store security officer.

10. When the questions are routine in nature, e.g., name, address, etc., and not calculated to elicit incriminating evidence.

When Miranda warnings are always required

1. Read the full Miranda warning–from a prepared text or card–no matter how familiar the defendant claims he or she is with the rights. The card or prepared text will ensure that you forget nothing and will make for better courtroom presentation.

2. If possible, obtain the waiver and statement in writing.

3. Be prepared to carry the burden of proof that the waiver was voluntary, knowing, intelligent, and free of coercion. Fortunately, this is a judicial determination and the standard is that of preponderance of the evidence and not that of proof beyond reasonable doubt.

(If a statement is made that was voluntary and not coerced, but the Miranda warning was not read, it may be used at trial under special circumstances)

Harris v. New York, 401 U.S. 222 (1971)

defendant takes the stand

Truancy

L.C. v. State, 23 So. 3d 1215 (Fla. 3d DCA 2009)

Dependent Children

DOMESTIC VIOLENCE

Domestic violence” means - any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.

REPOSSESSION

Northside Motors of Florida, Inc. v. Brinkley, 282 So. 2d 617 (Fla. 1973)

REPOSSESSION

Quest v. Barnett Bank of Pensacola, 397 So. 2d 1020 (Fla. 1st DCA 1981) -

SEARCH AND SEIZURE

Wong Sun v. United States, 371 U.S. 471 (1963) -

Entry of Premises to Effect an Arrest

Benefield v. State, 160 So. 2d 706 (Fla. 1964) (Hot Pursuit Entry)

Entry of Premises to Effect an Arrest

Payton v. New York, 445 U.S. 573 (1980) (Routine Felony Arrests)

Entry of Premises to Effect an Arrest

Steagald v. United States, 451 U.S. 204 (1981) (Suspect third Party residence)

Entry of Premises to Effect an Arrest

Ortiz v. State, 600 So. 2d 530 (Fla. 3d DCA 1992) - (forcible entry misdemeanor)

Entry of Premises Execute Search Warrant Unannounced

State v. Bamber,(Fla. 1994) – (No-knock warrants)

Florida recognized four exceptions to the knock and announce rule

(1) Where the person within already knows of the officer’s purpose and authority;

(2) Where officers are justified in the belief that the persons within are in imminent peril of bodily harm;

(3) Where an officer’s peril would have been increased had the officer demanded entrance and stated purpose;

(4) Where officers believe that persons within are engaged in activities which indicate that an escape or destruction of evidence is being attempted or would be attempted.

Search of Person Incident to Lawful Arrest

Chimel v. California,(1969) - (Wing Span Rule)

Search Premises Incident to Lawful Arrest

Maryland v. Buie (1990) - (harbors an individual posing a danger to those on the arrest scene)

Search Premises Incident to Lawful Arrest

Mestral v. State, (Fla. 3d DCA 2009) - (Arrest in Front Yard)

Motor Vehicles Search Incident to Lawful Arrest

New York v. Belton, 453 U.S. 454 (1981) -

Motor Vehicles Search Incident to Lawful Arrest

Thornton v. U.S., 124 S.Ct. 2127 (2004)

Motor Vehicles Search Incident to Lawful Arrest

Arizona v. Gant, 129 S.Ct. 1710 (2009)

Motor Vehicles Search Incident to Lawful Arrest

California v. Bertine, 479 U.S. 367 (1987); Florida v. Wells, 495 U.S. 1 (1990)

Motor Vehicles Search Based Upon Probable Cause

California v. Acevedo, 500 U.S. 565 (1991) / U.S. v. Ross, 456 U.S. 798 (1982) / Carroll v U.S., 267 U.S. 132 (1925) (Fruits of the Crime)

Motor Vehicles Search Based Upon Probable Cause

Pennsylvania v. Mimms, 434 U.S. 106 (1997) (Order All Out of Vehicle)

Motor Vehicles Search Based Upon Probable Cause

Maryland v. Wilson, 519 U.S. 408 (1997)/McNeil v. State, 5th DCA Fla. (1995) Palm Bay PD case.- (Pat down of Passengers)

Motor Vehicles Search Based Upon Probable Cause

Wilson v. State,(Fla. 4th DCA 1999) / State v. McClendon,(Fla. 4th DCA 2003) (Order a passenger to return to or remain in vehicle)

Motor Vehicles Search Based Upon Consent

Florida v. Jimeno, 500 U.S. 248 (1991)

Pretextual Seizures/Stops

Whren v. United States, 116 S.Ct. 1769 (1996)

Pretextual Seizures/Stops

Ohio v. Robinette, 519 U.S. 33 (1996)

Plain View Seizures

Minnesota v. Dickerson, 508 U.S. 366 (1993); Horton v. California, 496 U.S. 128 (1990) (Plain View Feel Doctrine)

Casual Contact / Encounters

Florida v. Bostick, 501 U.S. 429 (1991) -

Anonymous Tips

Florida v. J.L., 529 U.S. 266 (2000)

Stop and Frisk

California v. Hodari -

Stop and Frisk

United States v Morales-Zamora (974 F. 2d 149 (1992)

A “pretextual stop” occurs if police use legal justification to make stop when true purpose of stop is to search person or vehicle for unrelated and more serious crime for which police lack reasonable suspicion necessary to support stop. Evidence in this case showed that primary reason for roadblock stop of defendant’s vehicle was not to check her driver’s license, but to ascertain, with the aid of narcotics detection dog, whether defendant possessed drugs, and thus, stop was pretextual and all that occurred after stop was tainted. A roadblock set up for sole purpose of subjecting all stopped vehicles to a canine sniff violated Fourth Amendment.

Stop and Frisk

Wardlow v. Illinois, 528 U.S. 119 (2000) (Flight Sight)

Stop and Frisk

Minnesota v. Dickerson, 508 U.S. 366 (1993) (Referred to as the Plain Feel Doctrine)

Protective Searches Vehicles

Michigan v. Long, 463 U.S. 1032 (1983) (Vehicle Frisk for Weapons)

Protective Searches Persons

Terry v. Ohio, 392 U.S. 1 (1968); Adams v. Williams, 407 U.S. 143 (1972)

(Terry Stop)

Weapons in Motor Vehicles (Concealed)

State v. Swoveland, 413 So. 2d 166 (Fla. 2d DCA 1982) (without safety strap) 

Weapons in Motor Vehicles (Not Concealed)

State v. Hanigan, 312 So. 2d 785 (Fla. 2d DCA 1975) (with a safety strap)

a holstered revolver, with a safety strap over the hammer found under the front seat of a motor vehicle was held to be securely encased.

Use of Force

3 Legal Justification–Touching or the Use of Force

(1) Consent (expressed, implied, emergency);

(2) Self-Defense; and

(3) Arrest.

Use of Force

Tennessee v. Garner, 471 U.S. 1 (1985) (fleeing felon rule)

ENFORCEMENT OF TRAFFIC LAWS ON PRIVATE PROPERTY

Goldstein v. State, 223 So. 2d. 354 (Fla. Ed DCA 1969); § 316.1959, Fla. Stat. (2208)

EVICTION OF TENANTS AND GUESTS: POLICE ACTION MAY BE TAKEN

The Florida Residential Landlord and Tenant Act

Three categories of residential or sleeping accommodations which persons may be removed by law enforcement officers after they have been told to leave by the operator of the premises.

(Remember, the point at which a “guest” ceases to be a transient visitor and becomes a resident)

1. The first class involves hotels and motels

2. The second type of living arrangement

3. Recreational vehicle parks are the third and final type of residential or sleeping accommodations

1. The first class involves hotels and motels. 509.141, Fla. Stat. (The initial determination that a law enforcement officer should make is whether the premises concerned qualify as the type of premises to which the laws authorizing arrest under Florida Statutes 509.141 apply. If a landlord claims that the premises qualify as a public lodging establishment (hotel or motel), the premises must consist of any unit, group of units, dwelling, building or group of buildings within a single complex of buildings, which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests. 509.013(4)(a), Fla. Stat. This definition of public lodging establishment specifically excludes dormitories, hospitals, nursing homes, sanitariums, or places renting four units or less, unless advertised as regularly rented to guests. Other exclusions apply as well. 509.013(4)(b), Fla. Stat.)  If the guest is in transient occupancy, both parties (the owner/operator and the guest) must intend that the occupancy was to be temporary. 509.013(12), Fla. Stat.Conversely, there is a presumption that a guest is not in transient occupancy if the dwelling unit is the sole residence of the guest. For example, even if an establishment qualifies as a public lodging establishment, if the dwelling unit is the sole residence of the guest, as evidenced by lack of a permanent address elsewhere, receipt of mail at the address of the dwelling unit, or identification such as a driver license reflecting the address of the dwelling unit, the guest is not in transient occupancy, and the provisions authorizing the arrest and removal of undesirable guests from such establishments do not apply. Such facts indicate a landlord/tenant situation, which must be resolved with a civil action for eviction.

2. The second type of living arrangement from where law enforcement officers may remove persons are residency facilities, whether public or private, when the occupancy is incidental to the provision of medical, geriatric, educational, counseling, religious, or similar services. 83.42(1), Fla. Stat. When making an arrest, the appropriate charge at such locations is 810.08, Trespass After Warning. If the situation is resolved with no arrest (i.e., the person leaves the premises after the officer gives a warning), a police report should still be completed. The report should not be titled Eviction.

3. Recreational vehicle parks are the third and final type of residential or sleeping accommodations from which persons may be removed by law enforcement officers. 513.13, Fla. Stat. For a premises to qualify as a recreational vehicle park, it must be set aside and offered for the parking of five or more recreational vehicles or tents. 513.01(10), Fla. Stat. If the premises qualifies, a similar analysis to that described above must be conducted to determine whether an arrest is authorized under Florida Statutes 513.13.