Legal Guidelines.pdf

LEGISLATIVE REVISIONS OF NOTE 2023 LEGISLATIVE SESSION Florida Statutes Section (FSS) 322.033, Unauthorized aliens; invalid out-of-state-license was created. FSS 322.033 prohibits the use of certain classes of out-of-state licenses to operate a motor vehicle in Florida. Specifically, the statute indicates that out- of-state licenses issued exclusively to undocumented immigrants are invalid in Florida. The Florida Department of Highway Safety and Motor Vehicles (FLHSMV) has published a list of the types of out-of-state licenses that are invalid in Florida for the purpose of operating a motor vehicle. Officers should check FLHSMV’s website prior to taking any enforcement action pursuant to FSS 322.033. An officer who encounters a person operating a motor vehicle with an out-of-state license deemed invalid by FSS 322.033 may issue a citation for driving without a license (FSS 322.03, Drivers must be licensed; penalties). Officers should note that, some nonresidents of Florida may still legally operate a motor vehicle in Florida with an out-of-state license pursuant to criteria outlined in FSS 322.031, Nonresident; when license required. Florida Statutes Section (FSS) 403.413 – Florida Litter Law was amended as follows: An individual who intentionally dumps less than 15 pounds or 27 cubic feet of noncommercial litter on private property in violation of FSS 403.413(4) without intending to intimidate or threaten commits a noncriminal infraction. This offense will now be charged under FSS 403.413(6)(a)1. An individual who violates FSS 403.413(6)(a)1 for the purpose of intimidating or threatening the owner, resident, or invitee of a property commits a first-degree misdemeanor under FSS 403.413(6) (a)2.a. An individual who violates FSS 403.413(6)(a)1 for the purpose of intimidating or threatening the owner, resident, or invitee of a property and the litter contains a credible threat commits a third- degree felony under FSS 403.413(6)(a)2.b. If an officer determines a violation of this statute was motivated by bias against a person’s race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age of the victim, the officer must document the proper bias/motivation on their report. FSS 784.0493 – Harassment or intimidation based on religious or ethnic heritage was created and establishes the following: An individual who willfully and maliciously harasses or intimidates a person due to their wearing or displaying an item related to any religion or ethnic heritage commits a first-degree misdemeanor under FSS 784.0493(3). If, while violating FSS 784.0493(3), an individual makes a credible threat to the person who is the subject of the harassment or intimidation, the individual commits a third-degree felony under FSS 784.0493(4). “Harass” is defined as to engage in a course of conduct directed at a specific person that causes substantial emotional distress to that person and serves no legitimate purpose. A violation of FSS 784.0493 is considered a hate crime and requires the proper articulation and selection of the bias/motivation. If an officer determines a violation of this statute was motivated by bias against a person’s race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age of the victim, the officer must document the proper bias/motivation on their report. FSS 806.13 – Criminal mischief was amended to add the following violations and definition: An individual who knowingly and intentionally displays or projects an image onto a building, structure, or other property without the owner’s written consent commits a first-degree misdemeanor under FSS 806.13(6)(a). If the image displayed or projected in violation of FSS 806.13(6)(a) contains a credible threat, the individual commits a third-degree felony under FSS 806.13(6)(b). “Image” is defined as a visual representation or likeness of a person or object, and includes text, graphics, logos, artwork, or any combination thereof. If an officer determines a violation of this statute was motivated by bias against a person’s race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age of the victim, the officer must document the proper bias/motivation on their report. FSS 810.098 – Trespass for the purpose of threatening or intimidating another person was created and establishes the following: An individual who willfully enters a state university or Florida College System institution without authorization, license, or invitation, for the purpose of threatening or intimidating another person, and who after being asked to leave by the university or institution remains, commits a first-degree misdemeanor under FSS 810.098(1)(a). If an officer determines a violation of this statute was motivated by bias against a person’s race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age of the victim, the officer must document the proper bias/motivation on their report. FSS 871.01 – Disturbing schools and religious or other assemblies was amended as follows: An individual who willfully and maliciously interrupts or disturbs a school gathering for the worship of God, an assembly of people gathered for the worship of God, an assembly of people met for the purpose of acknowledging someone’s death, or any other assembly of people gathered for any lawful purpose commits a first-degree misdemeanor under FSS 871.01(1)(a). If an individual makes a credible threat while violating FSS 871.01(1)(a), the individual commits a third-degree felony under FSS 871.01(1)(b). If an officer determines a violation of this statute was motivated by bias against a person’s race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age of the victim, the officer must document the proper bias/motivation on their report. FSS 784.031, Battery by Strangulation was created and makes battery by strangulation a third-degree felony. A person commits battery by strangulation if he or she knowingly and intentionally, against the will of another person, impedes the normal breathing or circulation of the blood of that person, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person. FSS 860.142, Catalytic Converter Antitheft Act, A catalytic converter is an emission control device that is designed to be installed and operate in a motor vehicle to convert toxic gases and pollutants in the motor vehicle’s exhaust system into less toxic substances via chemical reaction. Only a registered secondary metals recycler may purchase a detached catalytic converter. Registered secondary metals recyclers who purchase a detached catalytic converter must comply with recordkeeping requirements and other requirements relevant to the recycler. The recycler is subject to first-degree misdemeanor, third-degree felony, or second-degree felony penalties for noncompliance, depending on the requirement or number of violations. It is a third-degree felony for a person to knowingly possess, purchase, sell, or install a: Stolen catalytic converter. Catalytic converter that has been removed from a stolen motor vehicle. New or detached catalytic converter from which the manufacturer’s part identification number, aftermarket identification number, or owner-applied number has been removed, altered, or defaced. Detached catalytic converter without proof of ownership, unless the person is a registered secondary metals recycler, a salvage motor vehicle dealer, or meets criteria for exemption. Proof that a person was in possession of two or more detached catalytic converters, unless satisfactorily explained, gives rise to an inference that the person in possession of the catalytic converters knew or should have known that the catalytic converters may have been stolen or fraudulently obtained. FSS 860.147, Import, Sale, or installation of counterfeit, fake, or nonfunctional catalytic converters, makes it a second-degree felony for a person to knowingly import, manufacture, purchase for the purpose of reselling or installing, sell, offer for sale, install, or reinstall in a motor vehicle a counterfeit, fake, or nonfunctional catalytic converter. Constitutional or Permitless Carry Florida’s concealed carry laws were amended to allow authorized individuals to carry a concealed weapon or firearm without a concealed license. In Florida, an individual may now carry a concealed weapon or firearm if: 1. The individual possess a valid concealed weapons license. 2. The individual is 21 years of age or older, unless the individual: a. Is not a U.S. citizen or permanent resident; b. Suffers from a physical condition that prevents them from handling a firearm safely; c. Is a convicted felon d. Is under the age of 24 and found to have committed a delinquent act which would be a felony if committed by an adult; e. Chronically or habitually abuses alcohol or other substances; f. Has been found by a court to lack the capacity to manage their property or essential health; or has been adjudicated mentally defective g. Is the subject of an active domestic violence or repeat violence injunction; h. Was found guilty of a crime under Chapter 893, (Drug Abuse Prevention and Control) within the last three years; i. Has had an adjudication of guilt withheld, a suspended sentence, or completed probation within the last three years on any of the following: i. A felony ii. Any misdemeanor crime of domestic iii. violence and/or iv. A misdemeanor crime of violence. j. Is prohibited from purchasing or possessing a firearm under Florida or Federal law. ARREST 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: Animals: 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, dart-firing 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 make an arrest is a lesser standard than that required for a conviction, which is “proof beyond a reasonable doubt.” The only factors which will be reviewed to determine whether an officer had probable cause for an arrest, are those factors known to the officer pre-arrest. Pre-arrest factors establishing probable cause may include the officer’s observations (as well as those of fellow officers), information received from citizens (witness, informants, victims, etc.) and physical evidence. The pre-arrest factors establishing probable cause are the most important because these factors must establish probable cause prior to making the formal arrest. While post-arrest factors may be used in the subsequent determination of “proof beyond a reasonable doubt,” probable cause for the initial arrest must exist at the time of the arrest. Guidelines Once an officer has determined that probable cause exists and an arrest has been made, it is equally important that the documentation of the incident and circumstances be as complete and accurate as possible. The initial evaluation of whether probable cause for the arrest exists will be made by a judge or an assistant state attorney based on a review of the arrest affidavit. Therefore, it is critical that this document contain all the necessary elements to establish probable cause. Officers should document all facts and evidence that will lead the reviewer to the conclusion that probable cause exists for the arrest. Facts supporting all elements of the charged offense should be covered. Avoid using broad conclusory statements. It is also encouraged for officers to provide details as to how and/or why the officer encountered the subject in the first place. A detailed arrest affidavit and accompanying police report may also serve to refresh an officer’s memory if court proceedings take place after an extended period of time. There can be serious consequences for both the officer and the department if it is determined that there was no probable cause for an arrest. Charges against the defendant will be dismissed, evidence may be suppressed (which may affect other defendants), the officer and department may be the target of civil lawsuits and the officer may face criminal charges. Release of Arrestee During the course of an investigation information may come to light subsequent to the arrest that affects the probable cause determination. Probable cause to believe that the defendant committed the crime may “evaporate” in light of new information uncovered in the subsequent investigation. This may occur shortly after the arrest, or after an extended period of time. Upon making a determination that probable cause for an arrest no longer exists (which, depending on the circumstances, may require consultation with the prosecutor or in-house counsel), the arrestee should be immediately released. The officer(s) should make every effort to return the individual to his/her prearrest state by transporting the arrestee to the original place of detention, releasing all personal property impounded, etc. Accordingly, the arrestee should be given an explanation regarding the circumstances relating to his/ her release. Caution should be exercised in the release of information if the investigation is continuing so as not to divulge any active criminal investigative information. Individuals should be assisted in recovering their vehicle (if one has been towed) and given any other reasonable assistance. The subsequent release of an arrestee based on new information which negates probable cause does not mean that the orig- inal arrest was without probable cause or was illegal. The initial arrest still retains its legal validity based on the facts known to the officer at the time of the arrest. In all such cases, a detailed report must be prepared containing all pertinent information. Miami-Dade Police Department officers should refer to the Miami-Dade Police Department Manual, Chapter 18, Part 2, Prisoner Related Activities, III.,C., Safeguarding Against False Arrest. BONDSMEN Bondsman Authority to Arrest In Florida, bondsmen are licensed and regulated under Florida Statute § 648 and have arrest powers pursuant to § 903.22, Fla. Stat. 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. As such, the bondsman has statutory authority to “recapture” a defendant whose bail has been forfeited or when the bondsman surrenders the defendant to law enforcement authorities. A bondsman may arrest a principal before or up to two years after the forfeiture of the bond. § 903.22 – § 903.29, Fla. Stat. 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. Authority of Out-of-State Bondsman 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), Fla. Stat. Additionally, the power of an out-of-state bondsman is derived from federal case law and recognized by the Florida Supreme Court. Register v. Barton, 75 So. 2d 187 (Fla.1954). If a person arresting a principal is not licensed under Florida law or by a foreign state, the arrest may be in violation of Florida law. Officers confronted with an arrest of a principal effected by an out-of-state bondsman, should make inquires as to the licensure and authority of the out-of-state bondsman. Use of Force by Bondsman A bondsman may only use reasonable force in apprehending a fugitive (principal). Reasonable force has been described as “…only that force that an ordinary, prudent, and intelligent person with the surety’s (bondsman’s) knowledge would have believed necessary in the circumstances to capture and surrender the principal”. Bondsmen have no statutory, common law or case law authority to use deadly force in effecting a capture. However, the use of deadly force will usually be considered “reasonable” when used “… to overcome declared, open and armed resistance…” to an arrest. Buchanan v. State, 927 So. 2d 209 (Fla. 5th DCA 2006). Armed Bondsman Bondsmen have no special authority under § 903, Fla. Stat. or § 648, Fla. Stat., to be armed. Accordingly, a bondsman must either possess a valid license or qualify for a license under § 790.06, Fla. Stat., to carry a concealed weapon or firearm. In situations where an officer encounters a bondsman who is armed and either has a license to carry a concealed weapon or firearm or is authorized to carry a concealed weapon or firearm, he/she should follow the routine procedure to verify that the concealed weapon or firearm license is valid. DIPLOMATIC AND CONSULAR OFFICIALS The information provided in this section are excerpts from the United States Department of State, Office of Foreign Missions publication entitled, Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities. It is published verbatim for the information and guidance that it provides to law enforcement officers. This following information is a brief summary on this topic, a complete copy of the publication can be downloaded at: http://travel.state.gov/CNA. International law requires that law enforcement authorities of the United States extend certain privileges and immunities to members of foreign diplomatic missions and consular posts. Most of these privileges and immunities are not absolute, and law enforcement officers retain their fundamental responsibility to protect and police the orderly conduct of persons in the United States. The following information is provided as a guide to the categories of foreign mission personnel and the privileges and immunities to which each is entitled. It explains how to identify (and verify the identity of) such persons and furnishes guidance to assist law enforcement officers in the handling of incidents involving foreign diplomatic and consular personnel. What is diplomatic immunity? Diplomatic immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local courts and other authorities for both their official and, to a large extent, their personal activities. Basis of Immunity The underlying concept of the special privileges and immunities accorded foreign diplomatic and consular representatives is that foreign representatives can carry out their duties effectively only if they are accorded a certain degree of insulation from the application of standard law enforcement practices of the host country. On a practical level, a failure of the authorities of the United States to fully respect the immunities of foreign diplomatic and consular personnel may complicate diplomatic relations between the United States and the other country concerned. It may also lead to harsher treatment of U.S. personnel abroad, since the principle of reciprocity has, from the most ancient times, been integral to diplomatic and consular relations. It should be emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. This is a crucial point for law enforcement officers to understand in their dealings with foreign diplomatic and consular personnel. While police officers are obliged, under international customary and treaty law, to recognize the immunity of the envoy, they must not ignore or condone the commission of crimes. As is explained in greater detail below, adherence to police procedures in such cases is often essential in order for the United States to formulate appropriate measures through diplomatic channels to deal with such offenders. Categories of Persons Entitled to Privileges and Immunities The staffs of diplomatic missions (embassies) are afforded the highest level of privileges and immunities in the host country in order that they may effectively perform their important duties. The following is a list of diplomatic categories: Diplomatic Agents – They have complete personal inviolability, which means that they may not be handcuffed (except in extraordinary circumstances), arrested, or detained; and neither their property (including vehicles) nor residences may be entered or searched. Diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host country’s courts and thus cannot be prosecuted no matter how serious the offense unless their immunity is waived. They cannot be forced to be witnesses in a criminal proceeding. Family members forming part of the household of diplomatic agents enjoy precisely the same privileges and immunities as do the sponsoring diplomatic agents. Members of Administrative and Technical Staff – perform tasks critical to the inner workings of the embassy. Accordingly, they enjoy privileges and immunities identical to those of diplomatic agents in respect to personal inviolability, immunity from criminal jurisdiction, and immunity from the obligation to provide evidence as witnesses. Also, like those of diplomatic agents, the family members of administrative and technical staff enjoy the same privileges and immunities. Members of Service Staff – perform less critical support tasks and only have official acts immunity. They do not have personal inviolability, no inviolability of property and no immunity from the obligation to provide evidence as witnesses. The families of service staff members enjoy no privileges or immunities. Special Bilateral Agreements - there are some countries with which the United States has concluded bilateral agreements that grant to all members of the staff of their respective embassies (provided that they are nationals of the sending country) the privileges and immunities to which only diplomatic agents are normally entitled. Identification cards will reflect this status but police officers should be aware of this distinction because they may have to confront situations where a chauffeur or mechanic from the embassy of one of these countries asserts a right to full diplomatic privileges and immunities. Temporary Duty – are persons sent to the United States on short-term official duty with diplomatic missions ordinarily do not enjoy any privileges and immunities (law enforcement authorities should nonetheless always seek prompt verification from the U.S. Department of State in particular cases involving such individuals). Waivers Always keep in mind that privileges and immunities are extended from one country to another in order to permit their respective representatives to perform their duties effectively; in a sense, it may be said the sending countries “own” these privileges and immunities. Therefore, while the individual enjoying such immunities may not waive them, the sending states can, and do. Police authorities should never address the alleged commission of a crime by a person enjoying full criminal immunity with the belief that there is no possibility that a prosecution could result. The U.S. Department of State requests waivers of immunity in every case where the prosecutor advises that, but for the immunity, charges would be pursued. In serious cases, if a waiver is refused, the offender will be expelled from the United States and the U.S. Department of State will request that a warrant be issued and appropriate entries to the National Crime Information Center (NCIC) database be made by the responsible jurisdiction. The seeking of waiver of immunity is handled entirely via diplomatic channels, but effective and informed police work becomes the basis of the prosecutor’s decision and the foundation for the U.S. Department of State’s waiver requests and any subsequent prosecutions or expulsions. Members of Consular Posts (Normal and Special Bilateral) Consular personnel perform a variety of functions of principal interest to their respective sending countries (e.g., issuance of travel documents, attending to the difficulties of their own nationals who are in the host country, and generally promoting the commerce of the sending country). Countries have long recognized the importance of consular functions to their overall relations, but consular personnel generally do not have the principal role of providing communication between the two countries — that function is performed by diplomatic agents at embassies in capitals. The 1963 Vienna Convention on Consular Relations grants a very limited level of privileges and immunities to consular personnel assigned to consulates that are located outside of capitals. There is a common misunderstanding that consular personnel have diplomatic status and are entitled to diplomatic immunity. Consular Officers Consular officers are those members of consular posts who are recognized by both the sending and the host country as fully authorized to perform the broad array of formal consular functions. They have only official acts or functional immunity in respect of both criminal and civil matters, and their personal inviolability is quite limited. Consular officers may be arrested or detained pending trial only if the offense is a felony and that the arrest is made pursuant to a decision by a competent judicial authority (e.g., a warrant issued by an appropriate court). They can be prosecuted for misdemeanors, but remain at liberty pending trial or other disposition of charges. Property of consular officers is not inviolable. Consular officers are not obliged to provide evidence as witnesses in connection with matters involving their official duties, to produce official documents, or to provide expert witness testimony on the laws of the sending country. Absent a bilateral agreement, the family members of consular officers enjoy no personal inviolability and no jurisdictional immunity of any kind. As indicated, official acts immunity pertains in numerous different circumstances. No law enforcement officer, U.S. Department of State officer, diplomatic mission, or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue which may only be resolved by the court with subject matter jurisdiction over the alleged crime. Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel). At this point, however, such person may assert as an affirmative defense that the actions complained of arose in connection with the performance of official acts. If, upon examination of the circumstances complained of, the court agrees, then the court is without jurisdiction to proceed and the case must be dismissed. Law enforcement officers are requested to contact the Department of State before arresting a consular officer, or, if not possible, immediately after arrest. Identification of Persons Entitled to Privileges and Immunities in the United States It is critical for a law enforcement officer to identify quickly and accurately the status of any person asserting immunity. Numerous documents are associated with foreign diplomats; only one provides an accurate indication of the status of the holder. This section endeavors to explain the array of documents and clarify for police officers which one may be relied upon. Identification Cards Issued by the U.S. Department Of State The only authoritative identification document is the identity card issued by the U.S. Department of State, the U.S. Mission to the United Nations in the case of persons accredited to the United Nations, and the American Institute in Taiwan for the employees of TECRO or TECO. There are three types of identification cards: Diplomatic (blue border for diplomats), Official (green border for embassy employees and United Nations Permanent Mission support staff, and TECRO employees), and Consular (red border for consular personnel and TECO employees). The identification cards are 3- 7/16” x 2-3/16” and contain a photograph of the bearer. The bearer’s name, title, mission, city and state, date of birth, identification number, and expiration date appear on the front of the card. The U.S. Department of State seal appears on the back of the card. A brief statement of the bearer’s criminal immunity, if any, is printed on the reverse side. While this form of identification is generally to be relied upon, law enforcement authorities are nonetheless urged to immediately seek verification in connection with any serious incident or in any case where they have reason to doubt the validity of the card. Police officers should be alert to the fact that newly arrived members of diplomatic and consular staffs may not yet have these official identity documents and should contact the U.S. Department of State at (202) 647-1985 or (202) 647-1727 for verification if confronted with such situations. Handling Incidents - General Procedures Verifying Suspect Identify and Status When a law enforcement officer is called to the scene of a criminal incident involving a person who claims diplomatic or consular immunity, the first step should be to verify the status of the suspect. Should the person be unable to produce satisfactory identification and the situation be one that would normally warrant arrest or detention, the officer should inform the individual that he or she will be detained until his or her identity can be confirmed. In all cases, including those in which the suspect provides a U.S. Department of State-issued identification card, the law enforcement officer should verify the suspect’s status by contacting the U.S. Department of State. Once the status is verified, the officer should prepare his or her report, fully describing the details and circumstances of the incident in accordance with normal police procedures. Personal Inviolability and Questions Regarding Handcuffing If the suspect enjoys personal inviolability, he or she may not be handcuffed, except when that individual poses an immediate threat to safety and may not be arrested or detained. Once all pertinent information is obtained, that person must be released. A copy of the incident report should be faxed or emailed as soon as possible to the U.S. Department of State in Washington, D.C. Detailed documentation of incidents is essential to enable the U.S. Department of State to carry out its policies. Traffic Enforcement Stopping a mission member or dependent and issuing a traffic citation for a moving violation is permitted and does not constitute arrest or detention. However, the subject may not be compelled to sign the citation. In all cases, officers should follow their departmental guidelines and document the facts of the case fully. A copy of the citation and any other documentation regarding the incident should be forwarded to the U.S. Department of State as soon as possible. For “must appear” offenses, the U.S. Department of State uses the citation and any report as the basis for requesting an “express waiver of immunity.” Individuals cited for pre-payable offenses are given the option of paying the fine or obtaining a waiver in order to contest the charge. DUI and Other Serious Cases In serious cases, e.g., DUI, personal injury, and accidents, officers on the scene should make telephonic notification to the U.S. Department of State (using the numbers provided on the reverse side of the Department of State driver’s license if available). The officer should follow his or her department’s guidelines with respect to the conduct of a field sobriety investigation. If appropriate, standardized field sobriety testing should be offered and the results fully documented. The taking of these tests may not be compelled. If the officer judges the individual too impaired to drive safely, the officer should not permit the individual to continue to drive (even in the case of diplomatic agents). Depending on the circumstances, there are several options. The officer may, with the individual’s permission, take the individual to the police station or other location where he or she may recover sufficiently to drive; the officer may summon, or allow the individual to summon, a friend or relative to drive; or the police officer may call a taxi for the individual. If appropriate, the police may choose to provide the individual with transportation. Driver History, Infractions, and “Point” Program The U.S. Department of State’s Diplomatic Motor Vehicle Office maintains driver histories on all its licensees and assesses points for moving violations. Drivers who demonstrate a pattern of bad driving habits or who commit an egregious offense such as DUI are subject to having their licenses suspended or revoked as appropriate. This policy can be enforced effectively only if all driving infractions (DUI, reckless driving, etc.) are reported promptly to the U.S. Department of State. It is U.S. Department of State policy to assign “points” for driving infractions and to suspend the operator license of foreign mission personnel who abuse the privilege of driving in the United States by repeatedly committing traffic violations and demonstrating unsafe driving practices. Property Inviolability and Vehicles The property of a person enjoying full criminal immunity, including his or her vehicle, may not be searched or seized. Such vehicles may not be impounded or “booted” but may be towed the distance necessary to remove them from obstructing traffic or endangering public safety. If a vehicle that is owned by a diplomat is suspected of being stolen or used in the commission of a crime, occupants of the vehicle may be required to present vehicle documentation to permit police verification of the vehicle’s status through standard access to NLETS (use access code US). Should the vehicle prove to have been stolen or to have been used by unauthorized persons in the commission of a crime, the inviolability to which the vehicle would normally be entitled must be considered temporarily suspended, and normal search of the vehicle and, if appropriate, its detention, are permissible. Vehicles registered to consular officials, including those with full criminal immunity, and consulates are not inviolable and may be towed, impounded, or booted in accordance with local procedures. The U.S. Department of State should be notified if a consular vehicle has been detained or impounded so that its Office of Foreign Missions can follow up with the proper consular official or mission. FOREIGN NATIONALS In 1967, the United States ratified the Vienna Convention on Consular Relations. Vienna Convention on Consular Relations, April 24, 1963, art. 36, 21 U.S.T. 77, T.I.A.S. No. 6820. 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. The provisions of this treaty must be applied to the arrest or detention of foreign nationals who are signatories to the treaty regardless of whether the United States extends diplomatic recognition to that nation, e.g., Cuba. For purposes of consular notification, a foreign national is defined as any person who is not a United States citizen. This includes resident aliens and foreign nationals illegally in the United States. When a foreign national is arrested, officers should take the following steps: 1. Determine the foreign national’s country. Normally, this is the country on whose passport or other travel document the foreign national travels. 2. If the foreign national is from one of the countries with which the United States has a bilateral agreement requiring mandatory notification in the event of an arrest, the officer must immediately notify the consulate or representative of the foreign national’s government. 3. If the foreign national is from a country with which the United States does not have a bilateral agreement requiring mandatory notification, the officer must still offer the arrestee the opportunity to have their consulate or interest section notified. 4. All foreign national arrestees must be afforded the option of consular notification, regardless of whether the United States maintains diplomatic relations with their countries. For example, if an Iraqi, Iranian or Cuban national is arrested, that arrestee must be given the opportunity to have their respective interest sections in Washington, D.C. notified. 5. Officers shall make written documentation of the notification of a consular official if the foreign national is from a mandatory notification country. If the foreign national is not from a mandatory notification country, the officer should document that the foreign national was advised of his or her right to have a consular official notified, and whether or not notification was made or refused by the foreign national. 6. Officers must realize that subjects still have to be advised of their Miranda rights where appropriate. Advising foreign nationals of the right to have a consular official notified of their arrest or detention, or the mandatory notification of a consular official, must be done in addition to, and not as a substitute for, Miranda warnings. BODY-WORN CAMERAS Florida Statutes Section 943.1718, exempts police body-worn cameras from the statutory prohibitions on interception of oral communications outlined in Florida Statutes, Chapter 934, Security of Communications, surveillance. As a result, law enforcement officers using body-worn cameras as authorized by their agency are not required to obtain consent of all parties to the communication prior to recording. Florida law requires that body-worn camera records be retained for a period of at least 90 days. CELL-SITE LOCATION INFORMATION When a cell phone connects to a cell site for signal to make or receive calls or text messages, the cell-site generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store CSLI for their own business purposes. The United States Supreme Court has noted that “the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.” Carpenter v. United States, 138 S.Ct. 2206 (2018). As a result of this case, the U.S. Supreme Court has held that an individual maintains a legitimate expectation of privacy in the records of his physical movements as captured through an individual’s cellphone. Accordingly, law enforcement must obtain a warrant supported by probable cause before acquiring CSLI records. However, if law enforcement is confronted with exigent circumstances, such urgent situations will likely justify the warrantless collection of CSLI. In these exigent situations law enforcement officers should consult with the State Attorney’s office prior to taking action. CHILD CUSTODY DISPUTES Several scenarios present themselves to officers who are called to the scene of a child custody dispute. Many factors must be taken into consideration by an officer prior to making a decision in such a matter. Break Orders—If a respondent is refusing to release custody of a child pursuant to a court order, the officer must have a break order to enter a structure to enforce the court order. There can be no police enforcement unless there is a specific court order directing the Department to take action coupled with a “break order” which contains verbiage permitting law enforcement to use whatever force necessary to gain access to the child(ren). Additionally, these orders do not authorize a party in the custody dispute to commit any crimes, such as criminal mischief or trespass, to obtain the child(ren). If a valid break order is presented and is to be executed by the officer, the officer may seek the assistance of the Fire Department only for the use of fire department equipment. Fire Department personnel may not assist in executing the break order. Officers with questions regarding child custody orders should contact their agencies’ legal counsel. The following is a synopsis of some of the more frequently encountered situations when responding to a child custody dispute and suggested courses of action for the officer. NO COURT ORDERED CUSTODY / MARRIED OR UNMARRIED PARENTS Officers may be called to the scene where one parent is alleging that the other parent is attempting to conceal the child from him or her, or flee the jurisdiction with the child. Even though there is no court order determining rights to custody, § 787.03, Fla. Stat., Interference with Custody, makes the malicious deprivation of another person’s custodial rights a third-degree felony. If there is no court order determining custody, and one parent is attempting to leave with the child, but not flee the jurisdiction, the responding officer should attempt to maintain the status quo. That is, whoever has the child upon the officer’s arrival should keep the child. When investigating such a case, the officer should ascertain the destination of the parent who is leaving with the child so as to ensure that there is no intended concealment of the child from the other parent which would violate § 787.03, Fla. Stat. It is important to note that this statute does not apply to a parent who is the victim of any act of domestic violence, believes that he or she is about to become a victim of an act of domestic violence, or believes that his or her action was necessary to preserve the child from danger to his or her welfare and thereby seeks shelter from such acts or possible acts. COURT ORDERED CUSTODY / MARRIED OR UNMARRIED PARENTS If one of the parents has been awarded custody by a court order and the other parent is attempting to conceal the child from the custodial parent or flee the jurisdiction with the child, such concealing or removal contrary to the court order is a felony of the third degree pursuant to § 787.04, Fla. Stat., Removing Minors from State or Concealing Minors Contrary to State Agency Order or Court Order. CHILD CUSTODY COURT ORDERS FROM OTHER STATES 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 in the local jurisdiction, for example, in Miami-Dade County a domesticated order is evidenced by a signature of a local judge, e.g., a Miami-Dade County judge. CONFLICTING CHILD CUSTODY COURT ORDERS FROM DIFFERENT STATES If one parent has a court order from one state and the other parent has a conflicting order issued from a local Florida court, the local order does not necessarily take precedence over the other state’s order. Only one of the states can have jurisdiction and the responding officer should maintain the status quo and contact their agencies’ legal counsel for assistance. COURT ORDERS FROM FOREIGN COUNTRIES United States Code, Title 22 § 9003, requires that full faith and credit be accorded by the courts of the States and the courts of the United States to the judgment of any foreign court ordering or denying the return of the child. “Full Faith and Credit,” which is provided for in Article IV, Section 1 of the United States Constitution, means that a state must accord the judgment of the court of another state the same credit that the judgment is entitled to in the courts of that state. It is recommended, in order to comply with the full faith and credit requirement, that the officer who is presented such an order review it with the same scrutiny as would be given an order issued by a Florida judge, i.e., only the original or a certified copy of the order should be accepted as valid. Absent such an order, the officer should treat the situation according to the guidelines suggested in the above paragraphs. LEAVING STATE WITH CHILD It is a violation of § 787.04, Fla. Stat., Removing Minors From State or Concealing Minors Contrary to State Agency Order or Court Order, for a parent, whether custodial or non-custodial, to conceal the child from the other parent or flee the state with the child in violation of a court order. However, if the court order is silent as to whether a parent may take the child out of the state and a parent leaves Florida with the child, it is probably a civil matter. The situation would become a criminal offense only if investigation revealed that the circumstances and destination indicated that parent and child would not be returning to the state and their whereabouts were intended to remain unknown. Where a parent has been awarded sole custody of a child and the other parent has no rights to the child, including no visitation rights, the custodial parent is free to leave and travel or relocate wherever he or she pleases. FLEEING JURISDICTION WITH CHILD VIA SHIP UNDER UNITED STATES OR FOREIGN FLAG Where the parent is fleeing the jurisdiction with the child via a ship docked at the local Port, regardless of whether the ship is under a United States flag or foreign flag, a police officer has the authority to board the ship to enforce a violation of state law. Additionally, the ship’s departure may be delayed long enough to complete the investigation. This jurisdiction also extends to acts or omissions occurring on a ship outside the jurisdiction of waters of the state under special circumstances provided for in § 910.006, Fla. Stat., State Special Maritime Criminal Jurisdiction. This section also provides that enforcement action be administered in a manner consistent with all other federal laws and treaties, and with the cooperation of the master of the ship, if feasible. If a crime occurs on the high seas, and the state chooses to exercise jurisdiction under § 910.006, Fla. Stat., the Federal Bureau of Investigation should be contacted and advised of the circumstances of the crime, as concurrent jurisdiction may possibly exist. FLEEING JURISDICTION WITH CHILD VIA AIRCRAFT A police officer has police authority on an aircraft that is docked with the aircraft’s passenger door open. However, the aircraft’s captain has superseding authority on an aircraft once the aircraft door is sealed. On a domestic or international flight where a fleeing parent boards the aircraft with the child, the officer should seek the assistance of the F.A.A. and/or flight crew by explaining the state law violation and asking permission to board the aircraft. This assistance should be sought even though the aircraft door is open. If the aircraft door is sealed, the police officer must seek the assistance of the F.A.A. in delaying the aircraft’s departure. If the officer determines that the circumstances of the custody dispute are civil in nature, the officer should maintain the status quo and document the incident on the appropriate report. It is recommended that officers contact their agency legal advisor when presented with a child custody order from a foreign country or with court orders from different jurisdictions which are in apparent conflict with each other. Also, it is important that officers closely review §§ 787.03-787.04, Fla. Stat., prior to making an arrest pursuant to either section because both contain knowledge and intent as elements of the crime. There are exemptions from prosecution under these laws, some of which are briefly noted in the paragraphs above. CIVIL FORFEITURE GUIDELINES MECHANICS OF FORFEITURE Forfeiture in Florida involves the seizure by and ultimate transfer of ownership to a law enforcement agency of real or personal property used or attempted to be used in criminal activity, or which represents the proceeds or is purchased from the proceeds of illegal activity. Forfeiture seeks to accomplish the following law enforcement goals: to deprive criminals of their ill-gotten gains; to prevent the further illicit use of property; and to deter illegal behavior. Forfeiture is a civil remedy made available to law enforcement agencies pursuant to the Florida Contraband Forfeiture Act (“the Act”), as contained in §§ 932.701 - 932.7062, Florida Statutes. The Act provides that contraband as defined in the statute, may be seized by a law enforcement agency based upon probable cause and thereupon forfeited through a civil court proceeding, or trial, upon proof beyond a reasonable doubt (equivalent to the standard required in a criminal case). Such a trial must be held before a jury unless waived by the claimant to the property. Real property seizures differ from personal property seizures as described below. The Act requires law enforcement agencies to apply for an ex-parte order of probable cause within ten business days of every seizure (in addition to any request by a claimant for an adversarial preliminary hearing). A ruling of “no probable cause” requires the agency to return the property within five days. A law enforcement agency is strictly required to proceed against seized property by filing a Complaint/Petition for Forfeiture within 45 days of seizure in the jurisdiction wherein the seizure or the predicate offense(s) occurred. The filing of the complaint/petition initiates an “in rem” civil action, wherein the seizing agency is the plaintiff/petitioner, and the property itself is the defendant. A person claiming an interest in the property is known as the claimant and must answer the complaint/petition pursuant to the Florida Rules of Civil Procedure upon service by the seizing agency. The Act also requires that all persons known to the seizing agency to have an interest in the property be sent notice by certified mail within five (5) working days of the seizure that they are entitled to an Adversarial Preliminary Hearing, which must be held within ten (10) days from the receipt of any request for such a hearing. Notice must be afforded to all known owners or lienholders, as well as to any person in possession of property when seized. The courts have found that any tardiness in sending the notice violates due process and requires that the seized property be returned. The purpose of the hearing is to prevent improper seizures by having the court make an early determination as to whether probable cause exists that the seized property constitutes contraband. A finding by the court that probable cause does not exist subjects the seizing agency to court costs and attorney’s fees up to $2,000. Typically, the seizing officer is called upon to testify at the Adversarial Preliminary Hearing and should be prepared to face cross-examination by the claimant’s defense counsel. Persons in possession of property when seized may participate at the Adversarial Preliminary Hearing, regardless of their ownership interest. Even if a seizing agency meets it burden at trial of proving beyond a reasonable doubt that seized property constitutes contraband, there are two statutory defenses available to a claimant under the Act, either as an innocent owner or a bona fide lienholder. It is the seizing agency’s burden to disprove these defenses by a preponderance of the evidence (the greater weight of the evidence). The seizing agency must prove that an owner either knew, or should have known after reasonable inquiry, that his or her property was being employed or was likely to be employed in criminal activity. Similarly, the seizing agency must prove that any bona fide lienholder, at the time the lien was made, had actual knowledge that the property was being employed or was likely to be employed in criminal activity. Once a forfeiture action has been timely initiated by filing a civil complaint/petition within 45 days of seizure, no other action to recover any interest in the property may be maintained. Such prohibited actions would include a replevin or similar action filed in civil court or a motion for return of property filed in a related criminal case. As in all civil cases, full discovery may be taken by the claimant, and officers should be prepared to collect requested material and be deposed as required. Forfeiture is a civil matter controlled by statute and proceeds independent of any criminal proceedings. However, the Act requires an arrest of the owner of the property seized with the following exceptions: 1. The owner cannot be identified after a diligent search, or the person in possession of the property denies ownership and the owner of the property cannot be identified by means that are available to the employee or agent of the seizing agency at the time of the seizure; 2. The owner of the property is a fugitive from justice or is deceased; 3. An individual who does not own the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article under § 932.701 and the owner of the property had actual knowledge of the criminal activity; 4. The owner of the property agrees to be a confidential informant as defined in § 914.28; or 5. The property is a monetary instrument. Since forfeiture is considered “quasi-criminal” in nature, Fourth Amendment search and seizure issues are relevant and may be independently considered within the civil forfeiture action. A finding that property was illegally seized would thereupon result in its suppression as evidence in the forfeiture case. FACTORS TO ESTABLISH PROBABLE CAUSE UNDER “TOTALITY OF THE CIRCUMSTANCES” 1. The presence of any contraband: i.e., narcotics, illegally obtained prescription drugs, adulterated drugs, stolen property in vicinity of currency: i.e., same container, safe, room, house, motor vehicle, on claimant or in any area related to claimant, room, house, motor vehicle. 2. Large amount of currency itself. 3. Large amount of currency and claimant has bank accounts where currency could have been deposited. 4. “Marked” bills commingled with seized currency. 5. Bills are in small denominations expected of street sales. 6. Narcotics dog alerts to currency and/or to area where currency is located. 7. Distinctive packaging of currency with rubber bands. 8. Distinctive packaging of currency in “quick count” bundles. 9. Distinctive packaging of currency with duct tape or foil. 10. Distinctive packaging of currency with substance in attempt to mask narcotics odor, i.e., fabric softener sheets, axle grease, pepper, coffee, fish, detergent, feces, etc. 11. Currency which is not found with or near, but smells like any masking ingredient, or any substance indicating where $ had been hidden, i.e., gasoline odor. 12. Currency in dirty or other bad condition, indicating prior unusual location such as burial ground. 13. Unusual container for currency, i.e., diaper bag, “Crown Royale” bag, duffle bag. 14. Unusual location for currency, i.e., motor vehicle trunk, wheel well, hub cap, gas tank, person’s socks, taped or bound to legs or middle, hidden in private area. 15. False or hidden compartment in motor vehicle, boat or structure. 16. Currency which was printed after the date that currency was alleged to have been accumulated or saved. 17. Ledgers, documents, or markings on packaging of currency, indicating narcotics sales or money laundering. 18. Fingerprints on currency packaging or narcotics or money laundering ledgers. 19. Narcotics paraphernalia: baggies, rolling paper, pipes, razors, heat sealers, scales. 20. Firearms legally or illegally obtained or carried in vicinity of illegal activities. 21. Claimant gives nonexistent address or address where he/she is not known to reside. 22. Physical proximity of currency to firearms and paraphernalia. 23. Radar detector. 24. Paper and recovered numbers. 25. Cell phones and recovered numbers. 26. Currency counting machines. 27. Unusual amount of surveillance cameras. 28. Barred and heavy metal doors. 29. Heavy tinting on motor vehicle windows, windows in businesses and residences. 30. Claimant has numerous safe deposit boxes. 31. Persons acting as lookouts. 32. Admissions, confessions. 33. Conflicting or inconsistent stories as to source of currency, intended use or destination of currency, or other related facts from witnesses and claimant. 34. Denial of knowledge of currency. 35. Denial of ownership of currency. 36. Claimant’s extreme nervousness. 37. Claimant flees police. 38. Claimant physical abandonment of the currency or other property. 39. Claimant refuses to consent to search under unusual circumstances, i.e., police respond to crime scene where claimant or relative is a victim. 40. Inability or refusal by claimant to provide corroborative information which claimant makes about the currency. 41. Claimant or witnesses make statements which are not believable or factually impossible on their face. 42. Third party’s inability or refusal to corroborate claimant’s explanation of source or intended use of the currency. 43. Inability or refusal of claimant to state the amount of $ being claimed. 44. Lack of documentation for source and/ or intended use of currency. 45. Claimant’s alleged legitimate business as source of $ does not exist, or does not/cannot account for amount of currency. 46. Claimant has no documented or reported employment or income is inconsistently low in comparison to amount of currency. 47. Claimant filed no state sales tax for business, sales tax reports which are inconsistent with amount of income claimed and/or amount of currency seized. 48. Claimant filed no federal income tax returns, or income tax returns are inconsistent with amount of income claimed and/or amount of currency seized. 49. Claimant does not have government, professional, or regulatory licenses required for alleged business. 50. Claimant’s lifestyle (home, home furnishings, electronic equipment, motor vehicle) is not consistent with documented or reported income. 51. Claimant is a fugitive from justice (claim will be stricken only if claimant is a fugitive. In criminal case related to forfeiture; otherwise, it remains a factor). 52. Claimant uses or used false information or aka’s. 53. Prior police contact with claimant or other related to the claimant or the seizure, or at the place of the seizure: arrests, convictions, forfeitures, probation, other seizures of property. 54. Police contact with claimant or others related to claimant or the seizure, or at the place of the seizure: arrests, convictions, forfeitures, probation, other seizures of property after the seizure. 55. Claimant was driving, flying, taking a train along a known narcotics route, or was at a known narcotics location. 56. City, country, area where $ is seized, or where claimant or currency was from or going to, is known source, location or distribution point for drugs, money laundering or other illegal activities. 57. Transmitting currency within or into or out of Florida in violation of Florida money transmitter law (chapter 560). 58. Transmitting currency within or into Florida in violation of any federal law, or the law of any other state or foreign country, including failure to make lawful declarations. 59. Structuring or “smurfing,” multiple deposits of under $10,000 to avoid state and federal reporting. Florida Forfeiture Handbook— 2005 edition Secher/Swain © 2005 Matthew Bender & Company, Inc., a member of the LexisNexis Group. FORFEITURE OF NARCOTICS RELATED CURRENCY Currency, or other means of exchange, which was used, attempted to be used, or intended to be used in violation of any provision of chapter 893 (drug abuse and control) may be seized and forfeited provided a nexus can be shown between the currency and narcotics activity. To establish a nexus the use of the currency does not have to be traced to a specific narcotics transaction. A nexus may be established when currency is found in close proximity to illegal narcotics, has visible residue adhering to the bills or the bills’ packaging, or when actually used to consummate a drug deal. Courts have also found that a nexus is present based off the totality of the circumstances when no narcotics are found. In Lobo v. Metro-Dade Police Dept., 505 So.2d 621 (3rd DCA 1987), the court found probable cause for seizure based on the totality of the circumstances, when a large amount of currency was found, the currency was found in a duffel bag in stacks secured with rubber bands (quick count bundles), conflicting statements as to the source of the currency existed, and a trained narcotics detection dog alerted to the money. It should be noted that an alert by a trained narcotics detection dog is significant in a drug currency case and provides evidence that currency was in recent, close or actual proximity to drugs, or had been just before packaging. An alert is not caused by any innocent environmental contamination of currency by cocaine residue on circulated U.S. currency. See, U.S. v. $22,474.00 in U.S. Currency, 246 F.3d 1212 (9th Cir. 2000). This global contamination theory, which states in essence that a dog alert is not probative of probable cause because a high percentage of circulated U.S. currency is contaminated with drug residue, was soundly rejected by the Eleventh Circuit Court of Appeals, citing studies by Drs. Furton and Rose which demonstrated that narcotics detection dogs alert to the odor of methyl benzoate, a by-product of street cocaine, and not otherwise to generally circulated currency. United States v. $242,484, 389 F. 3d 1149, at fn. 9-10 (11th Cir. 2004). For further reference see: “Identification of Odor Signature Chemicals in Cocaine”, by Kenneth G. Furton, et al., Journal of Chromatographic Science, Vol. 40, pg. 147, March 2002; and U.S. v. Funds in the Amount of $30,670.00, 403 F.3d 448, at 462 (7th Cir. 2005). Much evidentiary value and impact stem from the visual impression that circumstantial factors may create. Therefore, every effort should be made to document the currency appearance prior to moving it or disturbing the packaging or wrappings. The containers or wrappings in which the currency is stored may also be significant, especially if they are not used to store or transport currency as a usual business practice. A person who is qualified through training and experience to render an expert opinion regarding the practices employed by drug traffickers should be able to opine that the currency was used in illegal narcotics activity. Circumstantial evidence to support a forfeiture seizure will, of course, vary from incident to incident. Therefore, it is a mistake in any case to rely on any one significant piece of evidence, and fail to preserve and use all of the small pieces of evidence that when combined add up to a totality of circumstances. Interviewing and documenting all witnesses at the time of the seizure as to the source and intended use of seized currency, and the witnesses’ activities surrounding the seizure, is essential to building your case. Immediate follow up to attempt to substantiate the information provided by witnesses is also important, since information provided in these cases is often inaccurate, conflicting, or not capable of being substantiated. Other factors which appellate courts have considered significant in determining that currency is subject to forfeiture include: notations such as names and numbers found on wrappers or narcotics, unusual containers for money (i.e., diaper bags, gas tanks), odorous masking substances or wrappings (i.e., duct tape, dryer sheets, coffee, axle grease), drug paraphernalia, firearms, and scales. It is important to note that evidence collected at the time of seizure including hearsay statements are admissible at a probable cause hearing. FORFEITURE OF REAL AND PERSONAL PROPERTY The Florida Contraband Forfeiture Act broadly provides for the seizure of any real or personal property which was used or attempted to be used in any way as an instrumentality in the commission of, or used or attempted to be used to facilitate the commission of, a felony, or which constitutes the proceeds of a felony. Personal property may be seized based on probable cause in the same manner as all other 4th Amendment seizures. Examples of personal property that can be seized include vehicles, boats, and airplanes, as well as money, jewelry, tools, computers, or records. The seizure and forfeiture of real property, however, differs extensively. Real property cannot be seized except by order of court or the filing of a “lis pendens” after a civil forfeiture action is filed, which serves as a claim against the property. Moreover, under Florida law, a person’s primary residence, or homestead, is exempt from seizure (although federal law may still allow for its seizure). Any questions concerning a forfeiture matter should be directed to your department’s legal counsel. SHARING IN THE PROCEEDS OF FEDERAL FORFEITURES The United States Attorney General may authorize a transfer of an equitable share in a federal forfeiture to a state or local law enforcement agency. Comprehensive Crime Control Act of 1984, Pub. L. No. 98473, 98 Stat. 1837 (1984). Consequently, state and local law enforcement agencies have the ability to share in the proceeds of a federal forfeiture action when they assist in a seizure or investigation arising out of violations of laws enforced by federal law enforcement agencies. The following Department of Justice Agencies participate in the sharing program: The Federal Bureau of Investigation; Drug Enforcement Administration; and Immigration and Naturalization Service (now Homeland Security). Additionally, the United States Park Police, United States Marshalls Service, United States Attorneys Offices, and the United States Postal Inspection Service participate in the forfeiture program, although they do not directly adopt state and local seizures. The following Department of Justice Agencies participate in the sharing pro- gram: The Federal Bureau of Investigation; Drug Enforcement Administration; and Bureau of Alcohol, Tobacco, Firearms and Explosives. Participating agencies outside the U.S. Department of Justice include: U.S. Department of Agriculture — Office of Inspector General, U.S. Department of Defense — Defense Criminal Investigative Service, U.S. Department of State — Bureau of Diplomatic Security, U.S. Food and Drug Administration — Office of Criminal Investigations, and U.S. Postal Inspection Service. The following agencies under the Department of Treasury have also participated in a similar sharing program administered by the Department of Treasury: Immigration and Customs Enforcement — Homeland Security Investigations, Internal Revenue Service - Criminal Investigation Division, United States Secret Service, U.S. Customs And Border Protection. Guide to Equitable Sharing for State, Local, and Tribal Law Enforcement Agencies 7/23/2018. State and local agencies are not automatically entitled to share in the proceeds of a federal forfeiture. An application must be made using the appropriate federal form(s). These forms are available from the field offices of the various federal agencies. Officers who assist any federal agency in an investigation, even if merely making a traffic stop that results in the seizure of property, should consult their Department’s Legal Counsel so that an application for equitable sharing of any seized property may be made if appropriate. The officer assisting in the seizure should complete the application for federal sharing. Questions concerning the completion of the application form should be directed to the department’s legal counsel or the concerned federal agency. The sharing request should be presented to the department’s legal counsel for processing and certification of legal sufficiency. There are strict time restrictions on the submission of federal sharing applications. Applications must be submitted to the proper federal agency within 60 calendar days of the seizure resulting from joint investigations and 30 calendar days for adopted seizures. Consequently, the original sharing request should be submitted to the department’s legal counsel within 7 calendar days of the seizure or as soon thereafter. Late applications may result in the sharing request being denied by the concerned federal agency and the loss of substantial funds that would have gone to the agency’s Law Enforcement Trust Fund. Therefore, every effort should be made to ensure there are no delays in the processing of the sharing request. Generally, a separate application must be submitted for each seizure resulting from an investigation. For example, if an investigation results in the seizure of currency, an automobile, and 20 pieces of jewelry, a separate application must be submitted for the currency, automobile and the jewelry. The 20 pieces of jewelry can be submitted on one application provided they were all part of a single seizure. It should be noted that federal sharing is based on the net proceeds of federally forfeited property, which can be affected by many variables, e.g. administrative and maintenance costs associated with the forfeiture, upkeep of property, unfavorable judicial rulings, return of the property, etc. Additionally, the percentage of the proceeds requested may not be the percentage received. The exercise of sharing authority is discretionary by the federal government. Consequently, the amount shared may be substantially less than the amount seized. A more detailed explanation of procedures and restrictions on federal equitable sharing can be found in the Department of Treasury’s “Guide to Equitable Sharing for Foreign Countries and Federal, State and Local Law Enforcement Agencies,” and the Department of Justice’s “A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies.” CIVIL RIGHTS VIOLATIONS UNDER FEDERAL LAW POLICE LIABILITY UNDER FEDERAL LAW General Whenever any individual interferes with another’s rights there is a possibility of civil or criminal sanctions. The Federal law in this area has been termed “the Civil Rights Acts” but is actually divided into two areas, civil and criminal, each with its own unique definitions. CIVIL LIABILITY Section 1983 of Title 42, U.S. Code “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.” “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.” Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962). If you act in your official capacity you are acting under color of state (or local) law, and if your conduct results in the deprivation of any constitutionally guaranteed rights, you could be liable not only for actual damages, but for punitive damages if the element of malice is shown. Not only are improper acts committed under the color of law actionable, but also any act pursuant to local custom or usage that deprives a person of their federal constitutional rights. You are not liable for those acts which are purely ministerial in nature, such as the serving of warrants (search or arrest) pursuant to a court order unless you exceeded your authority. If you arrest without probable cause, you could be liable. However, you will not be held liable for enforcing any law that is later declared unconstitutional. Even if the complainant was convicted in state court in connection with a transgression (e.g., resisting arrest, burglary, or any crime incidental), this is not an available defense which shields you from liability; defenses available are a matter of Federal law and policy. States cannot create defenses to the Federal Civil Rights Act. Good faith and probable cause are defenses under a charge of false arrest brought under Section 1983 and prevalent tort law. The act complained of need not have been willfully committed for liability to attach, nor is it necessary to prove specific intent to deprive the plaintiff of a federal right. All causes of action arising out of Section 1983 must be for those acts committed by the officer under color of law, regulation, custom, or usage. CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS–DEPRIVING PERSONS OF RIGHTS OR PRIVILEGES Section 1985 of Title 42, USC (3) “If two or more persons in any State or Territory conspire…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…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 section deals with conspiracies to interfere with constitutionally guaranteed rights. It differs from § 1983 in that it sanctions conspiracies of either public officials or private persons. Conspiracy necessarily involves two or more persons and a successful completion of the conspiracy is not essential, but rather an overt act in furtherance of the conspiracy injuring a person or depriving him or her of property or the exercise of any rights or privileges of a citizen of the United States is compensable. There must also be an intentional or purposeful design to deprive the citizen of any of his or her secured rights. CRIMINAL LIABILITY Section 242 of Title 18, USC Section 242 of Title 18 makes it a crime for a person acting under color of law to willfully deprive a person of a right or privilege guaranteed under the Constitution or any federal law. “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section 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.” Federal causes of action under Section 1983 are only civil in nature and the remedies include money damages (nominal, compensatory, and punitive), injunctive relief and declaratory judgments. Federal violations under Section 242 have with criminal sanctions for some of these same types of illegal activities, and the courts read this section in conjunction with civil sanctions. There are two ways you can be liable when your actions deprive a person of a right, privilege, or immunity protected by the Constitution or laws of the United States: (1) If your actions are willful, i.e., you intentionally deprive somebody of his rights; or (2) By willfully subjecting any person to a different punishment or penalty because such person is an alien, or because of their race or color, other than is prescribed for the punishment of citizens. A violation of Section 242 may subject the offender to a sentence of death, imprisonment, a fine, or both imprisonment and a fine. Examples of actionable deprivations under (1) above: (a) Arrest made without probable cause or an arrest warrant. (b) Illegal search and seizure. (c) Unlawful assault or battery. (d) Wrongful homicides. In all of the above actions there must be an element of willfulness on the part of the officer, but the fact that the defendant officer may not have been thinking in constitutional terms is not material where his or her aim was not to enforce local law, but to deprive a citizen of a right and that right was protected by the Constitution. Section 241 pertains to police officers acting under color of law, as well as to private citizens, but it differs from Section 242 in two major respects. First, Section 241 is applicable only to a conspiracy involving two or more persons. Secondly, Section 241 pertains only to citizens of the United States, whereas Section 242 pertains to any person within federal jurisdiction. A violation of Section 241 is a felony which may subject the offender to a sentence of death, imprisonment, a fine, or both imprisonment and a fine. The county may assume responsibility for compensatory damages, but no local government would be authorized to pay any part of a judgment or claim which is punitive. CRIMINAL LIABILITY–SPECIAL EXCEPTIONS The statutory description of each crime lists the elements of the crime, the acts and mental state required for conviction. No violation occurs unless the defendant has acted in a manner and with the mental state that constitutes all the enumerated elements. A majority of the felonies listed in the Florida State Statutes require criminal intent as one of the elements. When the necessary intent is lacking, there is no violation. For example, the statutory crime of burglary is not committed unless the person who enters has the intent to commit some crime inside the premises. However, some felonies and a majority of misdemeanors do not have intent as an element. Merely doing the stated act or series of acts constitute a violation of the law. In the above example, the crime of burglary would not have been committed absent intent. However, without legal authority, the crime of trespass occurred. There are a number of special legal exceptions, exemptions, and defenses available in specific cases. One example is a legally issued court order directing a law enforcement officer to search a designated premise. Without permission or the authority of a judge, the entry of the premises, without the permission of the owner, would constitute criminal trespass. The court order, therefore, is a legal exception in this example. The Controlled Substance Act is another special exception to the rule. There is a statutory provision exempting law enforcement officers from prosecution for possession of a controlled substance when the possession is part of a supervised investigation. Therefore, any person or law enforcement officer who commits a prohibited act without a legal exception, exemption or defense is subject to criminal prosecution. If, in the course of an ongoing investigation, department members feel that activities that constitute criminal violations are likely to occur, they should check with their supervisors and the Police Legal Bureau for advice. COST RECOVERY Florida Statutes, § 938.27, Judgment for costs of prosecution and investigation, states: “In all criminal and violation-of-probation or community-control cases, convicted persons are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies … if requested by such agencies. The court shall include these costs in every judgment rendered against the convicted person.” (Emphasis added.) For the purposes of this section, “convicted” means a determination of guilt, or of violation of probation or community control, which is a result of a plea, trial, or violation proceeding, regardless of whether adjudication is withheld. § 938.27(1), Fla. Stat. Section 938.27 does not apply to juveniles who have been adjudicated delinquent. Therefore, an Investigations and Court Cost Recovery Form cannot be submitted for cases prosecuted in juvenile court. § 985.35(6), Fla. Stat. See also

Legal Guidelines.pdf

Document Details

Tags

Related

Full Transcript

Upgrade to continue