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Warrantless Arrest in Florida 

This article explains when a law enforcement officer in Florida can make a warrantless arrest for either a felony or misdemeanor. The article explains other ways that a criminal prosecution can be initiated including a direct file information after a walk-in complaint.

This article also provides a detailed list of the offenses that are statutory exceptions to the warrant requirement for a misdemeanor in Florida. The 2018 list of Florida misdemeanor exceptions is important. If an arrest warrant is required but the arresting officer makes a warrantless arrest, then all evidence gathered as a result of that illegal arrest will be suppressed if the appropriate motion is filed by the criminal defense attorney.

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 the Sammis Law Firm.

Call 813-250-0500 to talk with an attorney about your case.

Warrantless Arrest for a Felony in Florida

Under Florida law, a police officer can make a warrantless arrest for any felony offense if there is probable cause to believe:

  1. that a felony has been committed; and
  2. 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.

For a misdemeanor charge, however, the officer cannot normally 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. The list of offenses that are not covered by this rule are commonly known as the "Florida Misdemeanor Exceptions."

List of the Florida Misdemeanor Exceptions for 2018

In misdemeanor cases, Florida law provides for a number of statutory exceptions to the warrant requirement discussed above. A law enforcement officer in Florida can make an arrest without a warrant (provided that there is probable cause) even if every element was not committed in the officer's actual presence for the following offenses:

  1. 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)).
  2. Battery:
    • A battery upon another person under § 784.03 (see § 901.15(9)(a)).
  3. 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)).
  4. Domestic Violence:
    • Any act of domestic violence, as defined in § 741.28. (see § 901.15(7)).
  5. Violation of DV 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)).
  6. 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.
  7. 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)).
  8. Protection Order:
    • 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)).
  9. Stalking:
    • A violation of § 748.048 for stalking (see § 784.048(6)).
  10. Sexual Cyberharassment:
    • 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.
  11. 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)).
  12. Concealed Weapon:
    • A criminal act of carrying a concealed weapon under § 790.01 (see § 790.02).
  13. Criminal Mischief:
    • Any act of Criminal Mischief under § 806.13. (see § 901.15(9)(b)).
  14. Disorderly Conduct:
    • 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)).
  15. Trespass:
    • An act of trespass on a campus or other facility of a school as defined in § 810.097 (see § 810.097(4)).
  16. 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)).
  17. Drugs:
    • Possession of not more than 20 grams of cannabis according to § 893.13(6)(b) (see § 893.13(6)(d)).
  18. Graffiti:
    • Any Graffiti-related offense as described in § 806.13 (see § 901.15(9)(b)).
  19. Loitering and Prowling:
    • Any criminal act under § 856.021 for loitering and prowling (see § 856.031).
  20. Theft:
    • Any act of retail theft, farm theft, or transit fair evasion as defined in § 812.015 (see § 812.015).
  21. 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.
  22. 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)).

If the officer makes an arrest for a misdemeanor not on this list when the officer did not witness all of the elements of the offense, then any evidence gathered as a result of that illegal arrest can be suppressed if the proper "motion to suppress evidence" is filed by a criminal defense attorney.

In other words, for most misdemeanor offenses, the officer is not permitted to make a warrantless arrest unless all elements of the offense are committed in the officer's presence. The offenses listed above are considered to be exceptions to this warrantless arrest rule. The list of exceptions is expanded each year as new offenses are added to the statutory list.

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 offenes, 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 cases, the report is submitted to the 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.

Attorney explains Florida's "In the Presence" Requirement

Whether your case involves an arrest warrant, a warrantless arrest, or a direct file, contact an experienced criminal defense attorney at the Sammis Law Firm. We represent clients in felony and misdemeanor charges throughout Hillsborough County prosecuted at the courthouse in Tampa and Plant City.

This article explains the requirements for a warrant before making an arrest for a misdemeanor (often called the "in the presence" requirement) unless the misdemeanor is listed in the statute as one of the exceptions to this rule.

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, May 25, 2018.