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Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor with Blue to Gold law enforcement turning, bringing the roadside chat from the studio got an excellent question from an officer from Florida, right, the great state of Florida. So I'm going to call this chat. How do you handle misdemeanor crimes that are not committed in your presence? That's what I want to call this, right. And so the giveaway some context, if I give you this scenario, many states, not all, but many states have a misdemeanor restriction that you can, you can not make an arrest for a misdemeanor, that was not committed in your presence. Now, all of those states that have this restriction also have some rules that have exceptions. So for example, DUI, not coming in your presence, domestic violence, not coming your presence, you can still arrest on those, even though they're misdemeanors, but they still have this common law rule that if you didn't see with your own senses, then you have to go another route. So I want to give some cops some tools to use  to address those situations that come up frequently, right. So before I dive in with those tools, let me give you the scenario. I got my computer up in front of me so we can read a little bit. So officers get a call that the victim had or her purse stolen. They arrived 30 minutes later, now they have a suspect description. They see the suspect, you know, a few blocks from the place where this the purse got stolen. Now this purse wasn't as this is not a strong arm robbery. This was simply the lady was on her phone. She's not she's not paying attention that she's an outside cafe. And the guy just comes up and grabs the purse and leaves right so then she realizes a purse is gone. So not a strong arm robbery or theft. Now in Florida, the have a felony? I think it's is it a felony? Yes, I felony is $750 or more in value. The victim says The purse is worth about 450 Not a lot of contents that are worth anything inside the purse. So she's claiming a loss of approximately $45. So we're in the misdemeanor level. Now they also have video of him. You know, behind some bushes, they add a school they go behind the bushes, they find the contents of the they find the person so forth. And here's where we're at, you know, can we make the arrest or not? If we can't make the arrest? What are we supposed to do? Okay, well, let's, let's address a few things. I think you'll find this interesting. Number one, this question comes up a lot. Can the video of him stealing? Let's say we have him on video stealing the purse, we got him detained. Cops at the cafe see a video of him still in the purse? Can Does that count as committed in your presence? And the answer is no. In order to be counted, as committed your presence, you have to use some of your God given senses, hearing, sight, smell, and so forth. That can count as in your presence. But watching a video doesn't count. Now watching a live video does count. Right? Make sense? You're watching the guy commit a crime on let's say, a closed caption television. He's stealing stuff and you're watching with their own eyes that is committed within your presence. Makes sense. So we do not have that satisfied here. Therefore, this arrest if we did arrest him, would violate Florida State statute. Now it does not violate the constitution. I'm just letting you guys know that it does not violate the Constitution. It violates the law. And what the consequence of that is it I don't know. It depends on your Supreme Court in your state. Some Supreme Courts, like California, if this happened in California, even though they have the same in your presence requirement, they would not suppress evidence, but other states may. Okay. So what are you supposed to do here? Well, the main thing is to cite him where you know, this is only about the arrest, the committee in Your presence is only dealing with bringing him before a magistrate. This does not prevent you from signing this person and releasing them. So getting their name getting their ID. If they don't want to give you their ID, you can arrest them under your appropriate state law for failing to identify when you have probably cars, or even and so forth. But Anthony, what about the evidence? What if we got him on video stuffing? This lady stuffed in his pockets. And now, you know,
we don't have a crime of violence. So, you know, we don't do a pat down necessarily. He's being cooperative. He's, he's in handcuffs, for example. You know, I don't feel comfortable patting him down, because he's not armed or dangerous. But what about that stuff that I know is in his pockets? And I say, if it was me, get it. Why? Because you have exigency, right? I've never seen a case that has held that if you have probable cause, that they have possession of property on their person, that you have to arrest them and bring the jail to another recover the property, you can recover it on scene, because you have exigency, you don't have time to go get a warrant, when you know, and your probable cause that they have stuff in their pockets. That is evidence. So that's what I would do our recover the evidence. And I would cite and release him. And that's what I would do. Now, another option, which the author actually brings up is getting a warrant for the guy on scene. So Florida has a, you know, has a law that allows a state's attorney to issue an arrest warrant, based off of the verbal, probable cause that the cop gives over the phone and so forth. I've also Utah can get warrants from their cars. So that's another thing get get judicial approval. Right. It may take a long time, but that's just the way Florida hasn't worked out. So if you want to arrest him, Go get the warrant on scene if you can, if not, then you got to go for you know, then you have more limited options. But that's kind of where we're at on this. Alright. And then a little Zinger on this. One is that at the end of the day, the victim doesn't even want to press charges, because she ended up getting her purse back because again, it was found behind some bushes at a school. So at that point, I'm kicking him loose, right? She just want to be a victim and cooperate, then the case is weak at best, she's probably not gonna show up the court. I hope that helps. Okay, so to recap, many states have the committee in your officers presence, to make the arrest. That means you're using your God given senses. Watching a past video doesn't count. Watching a live video does. If you have probable cause that they have evidence on their person, you're going to be able to recover the evidence in the vast majority of states I've not seen where you can't, especially on the circumstances, recover the evidence, cite and release him. If you're really looking for an arrest, you're going to have to go the warrant route. Does that help? I hope it does. Guys. Thank you for joining me. Three things right. Please don't forget, hit like or comment that lets YouTube know I'm doing a good job. Hit subscribe and share with your friends. All right, let's spread the word and get authors trained on search and seizure with these little you know five six minute videos. Alright guys, until next time, stay safe.
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