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Florida Legal Guidelines 2013
Florida Legal Guidelines 2013
101
Law
Not Applicable
03/17/2014

Additional Law Flashcards

 


 

Cards

Term

Bondsman Authority to Arrest

Definition
In Florida, bondsmen are licensed and regulated under Florida Statute § 648 and have arrest powers pursuant to Florida Statutes § 903.22. A bondsman (also referred to as a “surety”) is legally considered to have custody of a defendant (also referred to as a “principal”) who has been released from law enforcement/corrections custody on bail. A bondsman may authorize a peace officer to make the arrest of a principal, by endorsing the authorization on a certified copy of the bond. Prior to making an arrest predicated on an endorsed authorization on a certified copy of a bond, officers should verify the validity of the certified copy, as well the licensure and authority of the bondsman.
Term
A bondsman may arrest a principal
Definition
Before or after the forfeiture of the bond. Florida Statutes § 903.22 – § 903.29.
Term
Register v. Barton, 75 So. 2d 187 (Fla.1954)-
Definition

 

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.

 

Term
Buchanan v. State, 927 So. 2d 209 (Fla. 5th DCA 2006)-
Definition
A bondsman may only use reasonable force in apprehending a fugitive (principal).However, the use of deadly force will usually be considered “reasonable” when used “…to overcome declared, open and armed resistance…”
Term

 

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

unless

Definition

 

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

 

Term
Career Consular Officers
Definition
Consular Officers are Consuls-General, Deputy Consuls-General, Consuls, and Vice-Consuls. They are also official representatives of foreign governments. They are entitled to limited immunities.
Term
Foreign career Consular Officer is not liable for arrest or detention pending trial except
Definition

 

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.

 

Term
Career Consular Officers can be identified by
Definition
credentials issued by the State Department and by other locally issued official identification papers. The State Department credential bears its seal, the name of the officer, his title and the signature of State Department officials.
Term
Honorary Consuls / Families of Consular Officers-
Definition
These individuals are not immune from arrest or detention; they are also not entitled to personal immunity from the civil and criminal jurisdiction of the receiving state except as to official acts performed in the exercise of their consular functions.
Term
Consular Premises-
Definition
Consular premises used exclusively for the work of the consular post cannot be entered without explicit permission of the head of the consular post or his designee or by the head of the diplomatic mission. This permission may be assumed in the case of fire or other disaster requiring prompt protective action.
Term
Consular Archives, Documents, Records, and Correspondence-
Definition
The consular archives and documents are sacred at all times.
Term
When a Consular Officer is stopped for a moving traffic violation ascertaining that he or she possesses the proper credentials, should exercise discretion based on the nature of the violation
Definition
and either let him or her go with a warning of the danger of his or her actions or proceed with issuance of appropriate citation. Mere issuance of a traffic citation does not constitute arrest or detention.
Term

 

Consular Officer Driving While Under the Influence

 

Definition

 

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.

Term
Foreign Nationals-
Definition
Vienna Convention This treaty mandates that foreign nationals who are arrested or detained be advised of their right to consult with members of their consulate or consular officials. In some instances it is mandatory that the arresting or detaining authority notify the nearest consular officials of the arrest or detention of the foreign national, regardless of the national’s wishes.
Term

 

Loiterer or Prowler § 856.021

 

Definition

 

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.

 

Term
G.C. v. State, (Fla. 4th DCA 2005); D.S.D. v. State,  (Fla. 5th DCA 2008).-
Definition
Courts have described this activity as “incipient criminal behavior” (beginning to exist or appear; in an initial stage). Some of the circumstances which courts have considered cause for alarm are whether the person takes flight, refuses to identify himself, or attempts to conceal himself, or an object.
Term
Driscoll v. State, 458 So. 2d 1188 (Fla. 4th DCA 1984).-
Definition
Miranda warnings must be given prior to any questions being asked which would dispel the officer’s alarm, as the questioning would be considered custodial.
Term

 

Probable Cause

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

Definition
The determination of probable cause for an arrest is a layered concept, wherein the officer can use all the factors and circumstances available at the time, “the totality of the circumstances. In Florida, probable cause for an arrest exists “…where the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.
Term

 

Misdemeanor exceptions 2013

 

Definition

 

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).

 

Term

 

Civil Action for Deprivation of Rights

 

Marshall v. Sawyer-

Definition
(Punitive damages) The only elements which need to be present in order to establish a claim for damages under the Civil Rights Act are that the conduct complained of was engaged in under color of state law, and that such conduct subjected the plaintiff to the deprivation of rights, privileges, or immunities secured by the Constitution of the United States.
Term
SECTION 1983 of Title 42, U.S. Code
Definition
Civil Action for Deprivation of Rights:civil rights act of 1871. This provision was formerly enacted as part of the Ku Klux Klan Actof 1871 and was originally designed to combat post-Civil War racial violence in the Southern states. Reenacted as part of the Civil Rights Act, section 1983 is as of the early 2000s the primary means of enforcing all constitutional rights.Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Term
SECTION 1985 of Title 42, USC
Definition

 

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

 

Term
SECTION 242 of Title 18, USC
Definition
Deprivation of Rights Under Color of Law: This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S. This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race. Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs. Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned 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 both, or may be sentenced to death.
Term
SECTION 241 of Title 18, USC
Definition

 

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.

 

Term

 

FREEDOM OF RELIGION AND ANIMAL SACRIFICES

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

Definition
U.S. Supreme Court found that the City of Hialeah ordinances aimed at stopping the practice of animal sacrifices were contrary to the constitutional principles of the Free Exercise Clause.
Term

Pre-trial Briefings

are set

Definition
At present, cases in County Court are assigned to prosecutors 10 days before the scheduled trial.
Term
Check-In for Court
Definition
Prior to a trial, police officers should check-in with the prosecutor in the courtroom. Cases have been dismissed by the presiding judge when, for example, the case was announced and the police officer was in the hallway or testifying in another courtroom and the prosecutor did not know where the police officer was. All prosecutors are told to report to their courtroom fifteen (15) to thirty (30) minutes before the calendar is called.
Term

 

Intent––The Burden of Proof there are 3

 

Definition

1. Specific intent


2. General intent


3. No intent


Term
Specific intent
Definition
This element is embodied within the language of a statute delineating a particular crime. Specific intent in such cases is an essential element of the crime which must be alleged and proved, e.g., entering with intent to commit a felony; assault with intent to rape. In order to convict, the trier of fact (judge or jury) must find such specific intent beyond a reasonable doubt.
Term
General intent
Definition
General intent crimes are characterized by the doing of a particular act which is prohibited by law. In such cases the perpetrator intends to do this particular act and the evidence must show beyond a reasonable doubt that the act was committed. No specific intent need be alleged or proved by the state. Robbery is an example of a general intent crime. Aggravated assault is another good example. The mere doing of the act (except in self-defense) is the offense.
Term
No intent-
Definition
It is this kind of offense that is most familiar to the average citizen. A citizen may commit this kind of offense without being aware that he or she has done any particular act. Many examples are found in the everyday type of traffic offense, e.g., disobeying a red light; stop sign; speeding, etc. Lack of intent to do the act is no defense, and the state need not prove any intent whatsoever. Categorically, intent is immaterial.
Term
Burke v. State, 672 So. 2d 829 (Fla. 1st DCA 1995)-
Definition
To convict a defendant of possession of burglary tools, the state must prove not only that the defendant intended to commit burglary or trespass while those tools were in his possession, but that the defendant actually intended to use those tools to perpetrate the crime. An overt act toward the commission of the crime is necessary to prove intent, mere possession of a tool is not enough.
Term

 

Lineups and Confrontations

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

Definition
A properly conducted witness-suspect confrontation is a valuable investigative technique which “is consistent with good police work. The Courts permit this type of identification, which generally occurs within a few hours after the offense, based on the rationale that an immediate confrontation permits the police to determine whether they have the actual offender and, if not, to continue their search for him and promptly release the innocent person.
Term

 

 

Lineups and Confrontations

 

 

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

Definition
Thus, if a suspect is apprehended shortly after a crime has been committed, it is proper to return the suspect to the crime scene and allow the witnesses or victim an opportunity to make an identification or, where it is more convenient to do so, the suspect may be brought to the police station where the confrontation can be conducted.
Term

 

 

Lineups and Confrontations

 


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

Definition
If a witness or victim has been seriously injured and is hospitalized, an arrested subject may be brought to the hospital for identification purposes. Similarly, if the suspect is found at a hospital where he or she is being treated, the witness or victim may be taken there for a confrontation.
Term

 

Conducting Identification Confrontation

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

Definition
There is authority in Florida for allowing up to four days. absent some great need or unusual circumstances, it is suggested that, in the vast majority of cases, the observation of the suspect should not be conducted more than four hours after the crime occurred.
Term

 

Conducting Identification Confrontation

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

Definition
The requirements that a suspect be allowed to have counsel present during an identification proceeding apply only to situations where the subject has been formally charged with a crime. Prior to the time that an information or indictment is filed, a suspect may be required to submit to a confrontation without the assistance of counsel. Pre-indictment lineups are not a critical stage and thus there is no right to counsel.
Term

 

 

Photographic Displays

 

 

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

Definition
Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement…We are unwilling to prohibit its employment.
Term

 

Photographic Displays

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

Definition
The photo-identification procedures will only be considered impermissibly suggestive where all circumstances indicate the identification is unreliable.
Term

Photographic Displays


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

Definition
A suspect has no right to counsel at a photographic display regardless of whether the display is conducted prior to indictment.
Term

Photographic Displays


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

Definition
A suspect has no right to counsel at a photographic display regardless of whether the display is conducted post-indictment.
Term

 

Lineups

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

Definition
a suspect in custody may be presented in lineups concerning other crimes for which he has not been charged.
Term

Lineups


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

Definition
The Supreme Court has ruled that a post-indictment lineup is a “critical stage” in criminal proceedings which necessitates the presence of counsel on the defendant’s behalf. The Supreme Court has recognized that the lineup is an integral part of the police effort to correctly identify an offender.
Term

Lineups


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

Definition
Due process will only intervene to exclude the identification when there is a high danger of misidentification.
Term

Lineups


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

Definition
Where an out-of-court identification was the result of undue police influence, an in-court identification may be excluded because the independent ability of the witness to remember the defendant is fatally tainted.
Term

 

Fifth Amendment Rights

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

Definition
The prosecution may not use statements whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.
Term

Fifth Amendment Rights


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

Definition
The U.S. Supreme Court held that the “police dominated atmosphere” prevailed when Reyes Orozco was questioned in his own bedroom reference a shooting. While Orozco’s bedroom was not “the isolated setting of the police station,” the atmosphere was nonetheless coercive in nature, and Miranda warnings should have been given.
Term

Fifth Amendment Rights


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

(Edwards Rule)

Definition
When an accused has invoked his right to have counsel present during custodial interrogation, questioning by police must be terminated until counsel has been made available or until the accused initiates further communication.
Term

 

When Miranda warnings are NOT required:

 

Definition

 

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.

Term

 

When Miranda warnings are always required

 

Definition

 

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)

Term

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


defendant takes the stand

Definition
when a defendant takes the stand to testify in his or her own defense, he or she may be impeached by prior statements even if the statement had been ruled inadmissible (on technical grounds) when originally offered by the prosecutor.
Term

 

Truancy

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

Definition
The search incident to arrest exception to the warrant requirement does not apply to taking a truant child into custody because truancy is not a crime and is not an arrest. If there is reasonable suspicion that the truant is carrying a dangerous weapon, the truant should be frisked for weapons prior to being delivered to the appropriate school system site.
Term

 

Dependent Children

 

Definition
A law enforcement officer may take a child into custody if he or she has reasonable grounds to believe the child has been abandoned, abused, or neglected or is in immediate danger. The officer should deliver the child to a protective investigator, who shall then determine if the child needs to be placed in a shelter or released.
Term

 

DOMESTIC VIOLENCE

 

Definition

 

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.

 

Term
Enforcement of Injunctions -
Definition
In order for an arrest to be made, the police officer must ensure that the respondent was properly served with the domestic violence injunction. Verify the validity and service of an injunction.
Term
Recognition of Foreign Protection Orders–§ 741.315, Fla. Stat
Definition
Federal law requires that injunctions for protection from domestic violence issued by a foreign state must be accorded full faith and credit by the courts of this state. Law enforcement officers in the State of Florida must enforce the injunctions as if they were issued by a Florida court. In order for the provisions regarding child custody, visitation and support to be enforced by the law enforcement officer, the petitioner must have the foreign order domesticated. A pick-up order or order of bodily attachment may be enforced without domesticating the foreign order.
Term
Child Custody Court Orders From Other States
Definition
An officer may not enforce a court order issued by another state or jurisdiction unless the court order has been domesticated, and a break order issued by a court.
Term

 

REPOSSESSION

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

Definition
Self-help repossessions are lawful if they can be accomplished without a breach of the peace. The great majority of courts find unauthorized entries into the debtor’s residence to be breaches of the peace, and many find entry into his or her place of business or garage to be such a breach.
Term

REPOSSESSION


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

Definition
The Court specifically stated that the debtor’s physical objection bars repossession even from a public street.
Term
Repossessor
Definition
are required to carry both their repossessor’s license and an identification card issued by their employer when on duty. § 493.6111, Fla. Stat. Violation of this law is a first degree misdemeanor.
Term

 

SEARCH AND SEIZURE

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

Definition
The penalty for an unlawful seizure is “suppression of the evidence,” and in addition, under the “fruit of the poisonous tree doctrine,” Any search or seizure not based upon a warrant is considered unreasonable unless an exception exists, e.g., consent, exigent circumstances, vehicle search, stop and frisk, etc.
Term

 

Entry of Premises to Effect an Arrest

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

Definition
- (requirement arrests with a warrant and for warrantless arrests due to exigent circumstances or in hot pursuit)Entering one’s home without legal authority and neglect to give the occupants notice have been condemned by the law and the common custom of this country and England from time immemorial.
Term

 

Entry of Premises to Effect an Arrest

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

Definition
Prohibits warrantless and non-consensual entries into a suspect’s home in order to make a routine felony arrest. An arrest warrant for the person coupled with reasonable grounds to believe the person is in the residence is necessary to effect an arrest of the person in his residence.
Term

 

Entry of Premises to Effect an Arrest

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

Definition
If the suspect to be arrested is believed to be located at a third party’s residence, an arrest warrant as well as a search warrant is required.
Term

 

Entry of Premises to Effect an Arrest

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

Definition
Florida case law prohibits an officer from forcibly entering a private residence to effect an arrest for a misdemeanor, even if the crime is committed in the officer’s presence.
Term

 

Entry of Premises Execute Search Warrant Unannounced

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

Definition
The determination of whether or not it is reasonable for police to enter without knocking and announcing their authority must be evaluated at the time of entry.
Term

 

Florida recognized four exceptions to the knock and announce rule

 

Definition

 

(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.

Term

 

Search of Person Incident to Lawful Arrest

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

Definition
When a lawful arrest is made without a warrant, an officer may search the person arrested and the area within his or her immediate control, which means the area immediately surrounding the person where the person might gain possession of a weapon or evidence which can be destroyed.
Term

 

Search Premises Incident to Lawful Arrest

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

Definition
Officers may also conduct a protective sweep of the rest of the premises after an in-home arrest if there is reasonable suspicion based on articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene, but in no event no longer than is necessary to dispel the suspicion or complete the arrest and depart the premises
Term

 

Search Premises Incident to Lawful Arrest

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

Definition
A warrantless protective sweep of the defendant’s home following his detention in his front yard was found to be impermissible because the officers entered the home as part of a routine procedure and not based on any articulable facts which would warrant a reasonable belief that there was a dangerous person in the home.
Term

Motor Vehicles Search Incident to Lawful Arrest


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

Definition
The passenger compartment of a motor vehicle and any open, closed, or locked containers found therein may be searched incident to a lawful arrest of an occupant.
Term

 

Motor Vehicles Search Incident to Lawful Arrest

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

Definition
- An officer may search the vehicle’s passenger compartment incident to arrest even when the officer does not make contact with the subject until he or she has already left the vehicle. This premise was expounded upon in 2009 by Gant.
Term

 

Motor Vehicles Search Incident to Lawful Arrest

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

Definition
Court held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence related to the arrest.
Term

 

Motor Vehicles Search Incident to Lawful Arrest

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

Definition
No search may be made of the trunk incident to the same arrest unless there is independent probable cause or a lawful inventory search is conducted pursuant to standardized police procedures. (Hatchback is not considered a trunk but part of the passenger compartment Florida v Wells).
Term

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)

Definition
If there is probable cause that a vehicle contains fruits or instrumentalities of a crime, or contraband, the entire vehicle, including any locked or unlocked containers, may be searched.
Term

 

Motor Vehicles Search Based Upon Probable Cause

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

Definition
Once a motor vehicle has been lawfully stopped, an officer may order the driver, and/or any passenger(s) to exit the vehicle.
Term

 

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)

Definition
Any pat down or search of the driver and/or passenger(s) must still be based on reasonable suspicion or probable cause.
Term

 

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)

Definition
A police officer conducting a lawful traffic stop may not, as a matter of course, order a passenger who has left the stopped vehicle to return to and remain in the vehicle until completion of the stop. If the officer has articulable founded suspicion of criminal activity or a reasonable belief that the passenger poses a threat to the safety of the officer, himself, or others, the officer may then order the passenger to return to and remain in the vehicle.
Term

 

Motor Vehicles Search Based Upon Consent

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

Definition
The United States Supreme Court has held a search to be lawful when police receive general consent to search a vehicle for narcotics, and thereupon, without specific permission, open closed containers found in the vehicle that might reasonably hold the object of their search.
Term

 

Pretextual Seizures/Stops

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

Definition
The United States Supreme Court has ruled that a police officer, having probable cause to stop a vehicle for any traffic violation, may do so even if the officer has an ulterior motive for making the stop. his holding applies to all traffic stops, whether or not the officer is in a marked or unmarked vehicle.
Term

 

Pretextual Seizures/Stops

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

Definition
The U.S. Supreme Court held that the Fourth Amendment does not require police officers to inform a motorist at the end of a traffic stop that they are free to go before seeking permission to search the motorist's car.
Term

 

Plain View Seizures

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

Definition
If contraband is left in open view and is observed by police who are at a location where they have a legal right to be, and the incriminating character of an object is immediately apparent, the police may seize the object without a warrant.
Term

 

Casual Contact / Encounters

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

Definition
An officer need not have reasonable suspicion or probable cause when the encounter with a citizen is consensual.
Term

 

Anonymous Tips

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

Definition
An anonymous tip that fails to predict future conduct of the suspect being informed on is insufficient to establish the requisite reasonable suspicion to support a valid frisk.
Term

 

Stop and Frisk

California v. Hodari -

Definition
An arrest deprives a person of their liberty by legal authority. An arrest takes persons, for the purpose of holding or detaining them, to answer a criminal charge or civil demand under real or assumed authority. An arrest occurs at the moment the person submits to a show of authority or is physically restrained.
Term

 

Stop and Frisk

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

Definition

 

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.

 

Term

 

Stop and Frisk

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

Definition
The Supreme Court has recently decided that flight at the sight of the police in a high crime area in and of itself constitutes sufficient articulable factors to establish reasonable suspicion for an investigative detention under the Fourth Amendment.
Term

 

Stop and Frisk

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

Definition
If, in the course of a patdown for the weapons, you should detect narcotics or other contraband, whose contour or mass makes its identity and criminality immediately apparent to you based on your experience and training, you may seize the object.
Term

 

Protective Searches Vehicles

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

Definition
If an officer has a probable cause to believe there are readily accessible weapons concealed within the vehicle; the officer may perform a frisk of the vehicle. The officer may not search a locked or inaccessible area of the automobile, but may check for weapons and seize contraband found in plain view.
Term

 

Protective Searches Persons

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

(Terry Stop)

Definition
A decision of the U.S. Supreme Court has clarified the authority of police officers to conduct limited protective searches of the area around a person, in addition to a protective frisk of the person, for weapons, when grounds exist that indicate that the person may be dangerous and have access to a weapon.
Term

 

Weapons in Motor Vehicles (Concealed)

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

Definition
A firearm in a holster without the safety strap across the hammer is not securely encased and therefore constitutes a concealed firearm.
Term

Weapons in Motor Vehicles (Not Concealed)


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

Definition

 

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.

 

Term

 

Use of Force

3 Legal Justification–Touching or the Use of Force

Definition

 

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

 

(2) Self-Defense; and

 

(3) Arrest.

 

Term

 

Use of Force

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

Definition
requires that the officer either reasonably believes that the fleeing felon poses a threat of death or serious bodily harm to the officer or others, or the officer reasonably believes that a fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person before use of force can be justified in arresting fleeing felons. These last two phrases would include the initial warrant or warrantless arrest of felons, as well as individuals who have escaped from immediate custody after any arrest has been effected.
Term

 

ENFORCEMENT OF TRAFFIC LAWS ON PRIVATE PROPERTY

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

Definition
Officers are often called upon to investigate motor vehicle crashes or take enforcement action relating to traffic offenses or parking violations on property that is privately owned. In general, officers may conduct traffic enforcement on all roads on which the public has the right to travel. This includes public roads and highways, as well as on quasi-public property (property that is privately owned but “used” by the public). Rarely can traffic enforcement occur on purely private property. A few exceptions exist (i.e., DUI and handicap parking).
Term

EVICTION OF TENANTS AND GUESTS: POLICE ACTION MAY BE TAKEN

The Florida Residential Landlord and Tenant Act

Definition
The Florida Residential Landlord and Tenant Act governs most of the traditionally recognized rental arrangements for dwellings, such as those for apartments, town homes, duplexes, and single family housing units. 83.40-83.682, Fla. Stat. In tenancy situations covered by the Act, the only means by which a landlord can legally recover possession of the dwelling unit without the consent of the tenant (evict the tenant) is to maintain an action for possession in the county court of the county where the premises is located. 83.59, Fla. Stat. If this action is successful, a writ of possession will be issued to the sheriff, who is authorized to put the landlord in possession after a prescribed notice period. 83.62, Fla. Stat. A lawful eviction can be accomplished only by a law enforcement officer acting pursuant to a civil writ of possession.
Term

 

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)

Definition

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

Term
1. The first class involves hotels and motels. 509.141, Fla. Stat.
Definition

 

  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.

 

Term
2. The second type of living arrangement
Definition

 

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.

 

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

 

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.

 

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