Warrantless Arrest Exceptions in Florida
When can an officer in Florida make a warrantless arrest for a misdemeanor? As a general rule, a warrant is required for a misdemeanor arrest unless:
- all of the elements of the misdemeanor were committed in the officer’s presence;
- the officer has probable cause for the arrest and the misdemeanor is on the list of statutory exceptions found in Section 901.15, F.S.; or
- the officer has reasonable grounds to believe that the subject has violated probation or community control in any material respect (sometimes called the “COP VOP” exception contained in Section 948.06).
The list of statutory exceptions to the warrant requirement gets longer every year as the Florida Legislature continues to amend the statute to add new misdemeanors to the list. The most recent exception added to the list is for the offense of “racing on highways” under Florida Statute Section 316.191(5).
If the officer makes a warrantless arrest for a misdemeanor without conforming to these rules, then the arrest is illegal. In those case, the criminal defense attorney will file and litigate a “motion to suppress” any evidence gathered as a result of the illegal detention or arrest. If the court grants the motion, the prosecutor might be forced to drop the charges for insufficient evidence.
2020 List of Florida’s Misdemeanor Exceptions
For a misdemeanor, the officer cannot legally make a warrantless arrest unless the crime was committed in his or her presence as explained below. For this reason, the rule is often called the “in the presence” requirement.
Florida law provides for certain exceptions to this warrantless arrest rule for misdemeanors in Florida. Even if every element of the crime was not committed in the officer’s presence, if the offense is contained on this list and the officer has probable cause, then the officer is permitted to make a warrantless arrest.
Florida law currently includes the following twenty-two (22) offenses:
- Assault on a Specified Person:
- If an assault allegedly occurred on 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 their duties (see F.S. § 901.15(15)).
- A battery upon another person under § 784.03 (see § 901.15(9)(a)).
- Child Abuse:
- An act of child abuse under § 827.03 or any act of abuse, aggravated abuse, and neglect of a child or a violation of § 787.025 or luring or enticing a child (see § 901.15(8)).
- Concealed Weapon:
- A criminal act of carrying a concealed weapon under § 790.01 (see § 790.02).
- Criminal Mischief:
- Any act of Criminal Mischief under § 806.13. (see § 901.15(9)(b)).
- Disorderly Conduct on the Premises of a Licensed Establishment:
- An act 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). (see § 509.143(2)), when the officer has probable cause to believe the disorderly conduct occurred on the premises of a licensed establishment and, in the course of such violation, created a threat to the life or safety of the person or others.
- Domestic Violence:
- Any act of domestic violence, as defined in § 741.28. (see § 901.15(7)).
- Possession of not more than 20 grams of cannabis according to § 893.13(6)(b) (see § 893.13(6)(d)).
- Any Graffiti-related offense as described in § 806.13 (see § 901.15(9)(b)).
- Loitering and Prowling:
- Any criminal act under § 856.021 for loitering and prowling (see § 856.031).
- Order of Protection:
- A foreign protection order accorded full faith and credit pursuant to § 741.315 which provides for recognition of foreign protection orders (see § 901.15(6)).
- Possession of Weapon by Specified Person:
- A criminal act under § 790.235 for possession of firearm or ammunition prohibited when the person is subject to a domestic violence injunction (see § 901.15(6)).
- Sexual Cyberharassment (aka “Revenge Porn”):
- Under Section 784.049(4)(a), a law enforcement officer may arrest, without an arrest warrant, any person that he or she has probable cause to believe has violated the statute prohibiting sexual cyberharassment (sometimes called “revenge porn”). The statute for misdemeanor sexual cyberharassment contains an explicit exception to the misdemeanor warrant requirement.
- A violation of § 748.048 for stalking (see § 784.048(6)).
- Trespass at an Airport:
- It is alleged that a trespass occurred in a secure area of an airport when signs are posted in a conspicuous area of airport which notifies the public that unauthorized entry into such areas constitutes a trespass and specify the methods for gaining authorized access to such areas (see F. S. § 901.15(14)).
- Trespass at a School:
- An act of trespass on a campus or other facility of a school as defined in § 810.097 (see § 810.097(4)).
- Traffic Crimes discovered as part of a crash investigation:
- An offense committed under the provision of Chapter 316, State Uniform Traffic Control, or Chapter 322 for drivers’ licenses in connection with a crash after an investigation at the scene (see § 316.645) including DUI with property damage.
- Learn more about what happens when a person is arrested for DUI without a warrant when the officer did not actually witness the driver in actual physical control of the vehicle and when no crash occurred.
- Any act of retail theft, farm theft, or transit fair evasion as defined in § 812.015 (see § 812.015).
- Vessel Safety:
- A violation of a safety zone, security zone, regulated navigation area, or naval vessel protection zone as described in § 327.461 (see § 901.15(9)(c)).
- Violation of Domestic Violence Pretrial Release:
- Any 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 (see § 901.15(13)).
- Violation of a Domestic Violence Protective Order Injunction:
- A criminal act for violation of an injunction for protection against domestic violence under § 741.31 (see § 901.15(6)).
- Any criminal act under § 784.047 for violating protective injunctions entered pursuant to § 741.30.
- Violation of Other Protective Injunctions:
- Any criminal act under § 784.046 for violation of repeat violence, sexual violence, or dating violence for a protective injunction (see § 901.15(6)).
- Racing on Highways
- Section 316.191(5) provides that “[w]henever a law enforcement officer has probable cause to believe that a person violated subsection (2) [of the racing on highways statute], the officer may arrest and take such person into custody without a warrant.”
Warrantless Arrest for a Probation Violation
For anyone on felony or misdemeanor probation, a new law violation might lead to a warrantless arrest for violation of probation or community control.
Criminal justice attorneys often called this type of arrest the “C.O.P. V.O.P.” since the law enforcement officer, instead of the probation officer, triggered the violation through a probable cause affidavit.
Florida Statute Section 948.06 provides:
Section 948.06 – Violation of probation or community control; revocation; modification; continuance; failure to pay restitution or cost of supervision.
Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or community control in a material respect, any law enforcement officer who is aware of the probationary or community control status of the probationer or offender in community control or any probation officer may arrest or request any county or municipal law enforcement officer to arrest such probationer or offender without warrant wherever found and return him or her to the court granting such probation or community control.
Warrantless Arrest after a Traffic Crash
Section 316.645 expands the officer’s authority to permit a warrantless arrest where, in the course of a personal investigation into a traffic crash, an officer gains reasonable and probable grounds to believe that a driver of a vehicle involved in the crash has committed an offense under Chapters 316 or 322, Fla. Stat., in connection with the crash.
Even a collision without resulting damage might qualify as a “traffic crash” as stated in § 316.645 which could trigger an officer’s warrantless arrest authority under that statute. In fact, the standard jury instructions for § 316.027 define a crash as a vehicle’s collision with another vehicle, person, or object. Fla. Std. Jury Instr. (Crim.) 28.4.
What if the only damage is to the suspect’s vehicle? Even if there is no damage to any property other than the suspect’s vehicle, it might qualify as a “traffic crash” under § 316.645.
For example, in Department of Highway Safety v. Williams, 937 So. 2d 815 (Fla. 1st DCA 2006), there was a single-vehicle collision that resulted in approximately $100 of damage to the driver’s own vehicle. 937 So. 2d at 816. The driver argued that because there was no damage to property other than her own, there was no “traffic crash” under § 316.645, and her arrest was unlawful. Id.
The First District approved the use of “the commonly accepted definitions of the terms ‘crash,’ variously defined as ‘a breaking to pieces by or as if by collision’ or ‘an instance of crashing,’ . . . and ‘collide,’ which in turn means ‘to come together with solid or direct impact.’ ” Id. at 817.
The court found that “[a]lthough the term ‘traffic crash’ reasonably contemplates some degree of damage, it clearly does not imply that damage must have occurred to the property of another, nor does it set a minimum amount necessary in order for such an incident to legally occur.” Id.
Warrantless Arrest for Misdemeanor DUI
The rules for DUI cases are particularly important because much of the evidence is gathered after the detention or arrest. An officer can effect a warrantless arrest of a person for misdemeanor DUI under any of the following three circumstances:
(1) the officer witnesses each element of a prima facie case;
(2) the officer is investigating a traffic crash and develops probable cause to charge DUI; or
(3) one officer calls upon another for assistance and the combined observations of the two or more officers, communicated between or among them, establish probable cause for the arrest.
Sawyer v. State, 905 So.2d 232234 (Fla. 2d DCA 2005).
Non-Arrest Walk in Complaints
Officers may not arrest for other misdemeanors not occurring in the officer’s presence without a warrant. Instead, for those offenses, a report is submitted to the State Attorney Office for the issuance of an arrest warrant by means of a request for prosecution.
In juvenile justice cases in Florida, the report is submitted to the State Attorney’s Office (SAO) for the issuance of a misdemeanor complaint.
Prosecutors with the State Attorney’s Office receives complaints and reports of criminal activity from different sources, including the general public and law enforcement officers that have not arrested the suspect.
After receiving a complaint, each complaint is investigated by the State Attorney’s Office to determine whether a crime has occurred and who has committed the crime.
The investigation can include statements from the witnesses, using search warrants to obtain additional information, or using a subpoena duces tecum to compel the production of documents.
After the investigation is completed, the State Attorney’s Office will make a decision about whether to file an Information or decline to file any charges. If charges are filed, an arrest warrant or issue summons will be prepared to bring the accused into custody.
In other cases, the complaint can be forwarded to the Clerk who will take the affidavit and administer an oath. The Clerk will then issue a summons.
After the summons is issued, the complainant is entitled to a hearing before a magistrate. The magistrate may issue a capias (warrant) if the party complained against fails to appear at the hearing or the evidence is sufficient.
Rules for a Felony Warrantless Arrest in Florida
Under Florida law, a police officer can make a warrantless arrest for any felony offense if there is probable cause to believe:
- that a felony has been committed; and
- the individual accused is the perpetrator of the crime.
In some felony cases, the investigating officer will not make an arrest, but will instead forward the complaint by the complaining witness to the State Attorney’s Office so that a prosecutor can make the filing decision.
The person accused can also hire a criminal defense attorney to present their side of the story to the prosecutor before the filing decision is made.
Attorney for the Warrantless Arrest in Florida
Whether your case involves an arrest warrant, a warrantless arrest, or a direct file, contact an experienced criminal defense attorney at Sammis Law Firm.
We represent clients in felony and misdemeanor charges throughout Hillsborough County prosecuted at the courthouse in Tampa and Plant City.
Contact us to find out whether a warrant is required before making an arrest for a misdemeanor (often called the “in presence” requirement), or whether a warrantless arrest exceptions applies.
If the criminal prosecution for a misdemeanor is initiated through a direct file information after a walk-in complaint, then we can help you present your side of the story before a filing decision is made.
If you have questions about an arrest warrant or a warrantless arrest in Tampa, Hillsborough County, or the surrounding areas of Tampa Bay, then contact an experienced criminal defense attorney at Sammis Law Firm.
Our main office is located in downtown Tampa in Hillsborough County, FL. We also have a second office located in New Port Richey in Pasco County.
Call (813) 250-0500 to talk directly with an attorney about the facts of your case. We can begin your defense today.
This article was last updated on Friday, March 6, 2020.