Legal Definition and Elements of Arrest in Florida Law

GENERAL An “arrest” is the apprehension or taking into custody of an alleged offender, in order that he may be brought into the proper court to answer for a crime. Gustafson v. State, 243 So.2d 615 (Fla. 4th DCA 1971). The elements of arrest are: (1) a purpose and intent to effect arrest under real or perceived authority; (2) an actual or constructive seizure or detention of a person by an arresting officer; (3) communication by the arresting officer to the person arrested of their intention or purpose to effect arrest; and (4) the understanding of the person arrested that it is the intention of the arresting officer to arrest and detain them. Clark v. State, 322 So.2d 635 (Fla. 3rd DCA 1975). All arrests must be predicated upon a probable cause belief that a crime has been committed and that the subject in custody is the person who committed the crime. The arresting officers must be able to clearly articulate the facts that led him/her to believe that a crime was committed by the individual arrested. The Arrest Affidavit must contain facts and details about the crime; specifically, it must contain the elements of the crime charged. The laws of arrest are governed by Florida Statutes Section 901. There are two forms of arrest, an arrest with a warrant and without a warrant. Arrest with a warrant: (1) Arrest warrant – a court order authorizing and requiring law enforcement to take a named individual into custody to answer for specified charges. An officer making an arrest pursuant to a warrant must inform the arrestee of the cause of arrest and that a warrant has been issued unless the individual flees, forcibly resists the officer, or if giving the information will jeopardize the arrest. § 901.16, Fla. Stat. The right to be free from unreasonable intrusion into one’s home is one of the most strictly guarded rights within the law. Absent exigent circumstances or consent, officers cannot enter a home without a warrant. An arrest warrant authorizes law enforcement to enter a residence when they have reasonable grounds to believe the residence is the actual residence of the subject of the warrant and a reasonable belief that the subject of the warrant is within the residence. VPS v. State, 816 So.2d 801 (Fla. 4th DCA 2002). However, an arrest warrant alone will not authorize law enforcement to enter a third-party residence in which the subject of the warrant does not actually reside. In such cases, law enforcement officers are required to obtain a search warrant for the third-party residence. Steagald v. United States, 101 S. Ct. 1642 (1981). To force entry into a building or property where the subject of an arrest warrant is or is reasonably believed to be, an officer must first be denied entry after having announced his or her authority and purpose to make an arrest by warrant. § 901.19, Fla. Stat. The need to announce is waived when: 1. The person within already knows of the officer’s authority and purpose, 2. The officer has a justified belief that persons within are in imminent peril of bodily harm, 3. Announcing would increase peril to the officer, or 4. The individuals within are engaged in conduct which justify a belief that an escape or destruction of evidence is being attempted. Benefield v. State, 160 So.2d 706 (Fla. 1964). (2) Capias – a court order authorizing an arrest for failure appear in court. These warrants are referred to as “bench warrants” for misdemeanors, “alias capias” (AC) for felonies, or “pick-up orders” for juvenile cases. Arrest without a warrant – a law enforcement officer may arrest a person without a warrant under the following circumstances: (1) The person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the officer. An arrest for the commission of a misdemeanor or the violation of a municipal or county ordinance shall be made immediately or in fresh pursuit. § 901.15(1), Fla. Stat. (2) A felony has been committed and the officer reasonably believes that the person committed it. § 901.15(2), Fla. Stat. (3) The officer reasonably believes that a felony has been or is being committed and that the person to be arrested has committed or is committing it. § 901.15(3), Fla. Stat. (4) A warrant for the arrest has been issued and is held by another peace officer for execution. § 901.15(4), Fla. Stat. (5) A violation of chapter 316 has been committed in the presence of the officer. Such an arrest may be made immediately or in fresh pursuit. § 901.15(5), Fla. Stat. (6) Upon review of a signed affidavit provided to an officer by a law enforcement officer of the United States Government or a United States military law enforcement officer, from which the officer determines he or she has probable cause to believe that a misdemeanor has been committed, in the presence of the United States law enforcement officer or the United States military law enforcement officer on federal military property over which the state has maintained exclusive jurisdiction for such a misdemeanor. (7) (a) A law enforcement officer of the Florida National Guard, has probable cause to believe a felony was committed on state military property or when a felony or misdemeanor was committed in his or her presence on such property. (b) All law enforcement officers of the Florida National Guard shall promptly surrender all persons arrested and charged with a felony to the sheriff of the county within which the state military property is located, and all persons arrested and charged with misdemeanors shall be surrendered to the applicable authority as may be provided by law, but otherwise to the sheriff of the county in which the state military property is located. The Florida National Guard shall promptly notify the applicable law enforcement agency of an arrest and the location of the prisoner. (8) Certain specified misdemeanor offenses which allow for arrest without a warrant. See WARRANTLESS ARREST/ MISDEMEANOR EXCEPTION for a list of the misdemeanor exceptions for which an officer may make a warrantless misdemeanor arrest with probable cause. WARRANTLESS ARREST/MISDEMEANOR EXCEPTIONS A police officer may make a warrantless arrest if there is probable cause to believe that a felony has been committed and the individual is the perpetrator of the crime. If the crime involved is a misdemeanor, the officer may not ordinarily make a warrant- less arrest unless the crime was committed in his or her presence or a statutory exception allows for the warrantless arrest. There are a number of statutory exceptions concerning misdemeanors commonly known as the “Misdemeanor Exceptions.” The following list of crimes provide the authority for an officer to make a warrantless misdemeanor arrest without witnessing the elements of the crime, as long as there is probable cause to believe that the crime occurred and the individual to be arrested is the perpetrator of the crime: 1. Leaving or depositing a poison in any common street or in any yard or enclosure not occupied or owned by the perpetrator as detailed in § 828.08, Fla. Stat. (Misdemeanor exception source § 828.17, Fla. Stat.). 2. Cruelty to animals as detailed in § 828.12, Fla. Stat. (Misdemeanor exception source § 828.17, Fla. Stat.). 3. Confinement of animals without sufficient food, water, or exercise as detailed in § 828.13, Fla. Stat. (Misdemeanor exception source § 828.17, Fla. Stat.). 4. Violations of livestock transportation requirements as detailed in § 828.14, Fla. Stat. (Misdemeanor exception source § 828.17, Fla. Stat.) 5. Selling or comingling of animals with contagious disease without disclosure as described in § 828.16, Fla. Stat. (Misdemeanor exception source § 828.17, Fla. Stat.). 6. Assault on specified officers and medical personnel: 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, Fla. Stat., or an assault or battery upon any employee of a receiving facility as defined in § 394.455, Fla. Stat., who is engaged in the lawful performance of their duties. (Misdemeanor exception source § 901.15(15), Fla. Stat.). 7. Battery: Any battery upon another person, as defined in § 784.03, Fla. Stat. (Misdemeanor exception source § 901.15(9)(a), Fla. Stat.). 8. Child Abuse: An act of child abuse, as defined in § 827.03, Fla. Stat., or an act of luring or enticing a child for unlawful purposes as defined in § 787.025, Fla. Stat., (Misdemeanor exception source 901.15(8), Fla. Stat.). 9. Criminal Mischief/Graffiti: An act of Criminal mischief, including graffiti, as described in § 806.13, Fla. Stat. (Misdemeanor exception source § 901.15(9)(b), Fla. Stat.). 10. Concealed Weapon: The unauthorized carrying of a concealed weapon or electric device on or about one’s person excluding self-defense chemical sprays, nonlethal stun guns, dartfiring stun guns, or other nonlethal electric devises that are designed solely for defensive purposes. (Misdemeanor exception source § 790.02, Fla. Stat.). 11. Disorderly Conduct at Licensed Establishments: Any acts of a breach of the peace or disorderly conduct as defined in § 877.03, Fla. Stat., combined with a threat to the life or safety of the person or others which occurs on the premises of a licensed establishment. (Misdemeanor exception source § 509.143(2), Fla. Stat.). Domestic Violence: 12. An act of domestic violence, as defined in § 741.28, Fla. Stat., or dating violence, as provided in § 784.046, Fla. Stat. (Misdemeanor exception source § 901.15(7), Fla. Stat.). 13. A criminal violation of a domestic violence injunction §741.30, Fla. Stat., a repeat violence injunction §784.046, Fla. Stat., an injunction for protection against exploitation of vulnerable adults §825.1035, Fla. Stat., or a foreign protection order §741.315, Fla. Stat. (Misdemeanor exception source § 901.15(6), Fla. Stat.). A complete list of possible criminal violations may be found as follows: 1. Fla. Stat. § 741.31, Fla. Stat., lists the criminal violations for a domestic violence injunction. 2. Fla. Stat. § 784.047, Fla. Stat., lists the criminal violations for a repeat violence injunction. 3. Fla. Stat. § 825.1036, Fla. Stat., lists the criminal violations for an injunction for protection against exploitation of vulnerable adults. 14. Possession of a firearm or ammunition while bound by a final injunction against domestic violence, stalking, or cyberstalking. §790.233, Fla. Stat. (Misdemeanor exception source § 901.15(6), Fla. Stat.). 15. An act that violates a condition of pre-trial release provided in § 903.047, Fla. Stat., when the original arrest was for an act of domestic violence as defined in § 741.28, Fla. Stat., or an act of dating violence as defined in §784.046, Fla. Stat. (Misdemeanor exception source § 901.15(13), Fla. Stat.). 16. Drugs: Possession of not more than 20 grams of cannabis according to § 893.13(6) (b), Fla. Stat. (Misdemeanor exception source § 893.13(6)(d), Fla. Stat.). 17. Exposure of Sexual Organs: An exposure of sexual organs in violation of § 800.03, Fla. Stat., (Misdemeanor exception source 901.15(9)(e), Fla. Stat.). 18. Loitering and Prowling: A criminal act according to § 856.021, Fla. Stat., (Misdemeanor exception source § 856.031, Fla. Stat.). 19. Obscene Material: an act of knowingly possessing an obscene, child-like sex doll as described in § 847.011(5)(b)(1), Fla. Stat. (Misdemeanor exception source 847.011(5)(c)(1), Fla. Stat.) 20. Racing: Racing, street takeover, or stunt driving violation as described in § 316.191(2), Fla. Stat., (Misdemeanor exception source 901.15(9)(d), Fla. Stat.). 21. Sexual Cyberharassment: There is probable cause to believe that the person has committed a criminal act of sexual cyberharassment as described in § 784.049, Fla. Stat. 22. Stalking: Any violation of § 748.048, Fla. Stat. (Misdemeanor exception source § 784.048(6), Fla. Stat.). 23. Theft from a Public Lodging Establishment or Public Food Service Establishment: as described in § 509.162, Fla. Stat. (Misdemeanor exception source § 509.162(2), Fla. Stat.) 24. Theft from a Retail Store or Farm: An act of retail theft, farm theft, or transit fair evasion as defined in § 812.015, Fla. Stat. (Misdemeanor exception source § 812.015, Fla. Stat.). 25. Traffic: Any criminal offense under the provision of Chapter 316, State Uniform Traffic Control, Chapter 320, Motor Vehicle Licenses, or Chapter 322, Drivers’ Licenses, which is discovered in the course of a traffic crash investigation, and which was committed by a driver involved in the crash. (Misdemeanor exception source § 316.645, Fla. Stat.). 26. Transit Fare Evasion: as detailed in § 812.015, Fla. Stat. (Misdemeanor exception source § 812.015(4), Fla. Stat.). 27. Trespass at Airport: Actions of trespass in a secure area of an airport when signs are posted in conspicuous area of airport which notify that unauthorized entry into such areas constitutes a trespass and specify the methods for gaining authorized access to such areas. (Misdemeanor exception source § 901.15(14), Fla. Stat.). 28. Trespass from Public Fair Grounds: as detailed in § 616.185, Fla. Stat. (Misdemeanor exception source § 616.185(3), Fla. Stat.). 29. Trespass from Schools: Any act of trespass on a campus or other facility of a school as defined in § 810.097, Fla. Stat. (Misdemeanor exception source § 810.097(4), Fla. Stat.). 30. Vessel Safety: A violation of a safety zone, security zone, regulated navigation area, or naval vessel protection zone as described in § 327.461, Fla. Stat. (Misdemeanor exception source § 901.15(9)(c), Fla. Stat.). PROBABLE CAUSE General An arrest by a police officer pursuant to a warrant or a warrant exception must al- ways be based on “probable cause.” The officer must have probable cause to believe that a particular statute has been violated by the subject, and that all the elements enumerated in the statute are present. In Florida, probable cause for an arrest exists where the facts and circumstances within an officer’s knowledge is sufficient to warrant a reasonable person in the belief that an offense has been or is being committed. Jenkins v. State, 978 So. 2d 116 (Fla. 2008). The determination of probable cause for an arrest is a layered concept, wherein the officer must use all the factors and circumstances available to them at the time, also known as “the totality of the circumstances.” Probable cause to