Judge May Review Database

A judge may independently review one or more limited, reliable databases to obtain information about the accused’s current or prior criminal history or other status which may be relevant to whether release prior to first appearance would be permitted.

When issuing an arrest warrant, the judge is required to set the amount of bail or other conditions of pretrial release, if a right to bail exists. The question presented here is based upon the criteria set forth in (2025).

ANSWER:  Yes.

When reviewing and issuing an arrest warrant, in addition to determining whether probable cause exists, the judge is required to endorse upon the warrant the amount of bail or other conditions of release for offenses where the accused has a right to bail. Typically, an accused has no right to release from custody prior to his/her first appearance hearing.  However, the accused may be released prior to first appearance pursuant to a standard uniform bail schedule employed in the jurisdiction setting specific bail amounts for certain charged crimes  Section 903.011(6) prohibits those arrested for certain listed crimes, those arrested for violation of protective injunctions, and those meeting certain criteria based upon their prior encounters with the legal system (“historical criteria”) from being released before their first appearance or a bail determination hearing.

The inquiring judge points out that when reviewing an arrest warrant package, it is easy to determine that bail will not be permitted prior to first appearance if the accused is being arrested for one or more of the crimes listed in section 903.011(6)(e), or for  violation of a protective injunction. In such situations, the judge would endorse “No Bond Pending First Appearance” on the warrant, signifying that the accused was not to be released prior to first appearance.

Section 903.011(6) provides that certain historical criteria prohibits an accused’s release before first appearance, such as if the accused (a) at the time of arrest, was on pretrial release, probation, or community control; (b) at the time of arrest was designated as a sexual offender or predator; (d) was under specified supervision; (e) had previously been sentenced as a prison releasee reoffender (“PRR”), habitual violent felony offender (“HVFO”), three-time violent felony offender, or violent career criminal; or (f) had been arrested three or more times in the six months immediately prior to the current arrest. 

The inquiring judge notes that the warrant packages often do not address the accused’s statutorily relevant historical criteria.    The judge wants to know if it would be ethically permissible for the judge to consult certain reliable, governmental databases to determine whether the accused’s historical criteria would require a “No Bond Until First Appearance” endorsement on the arrest warrant.

Canon 3 of Florida’s Code of Judicial Conduct begins by stating: A Judge Shall Perform Duties of Judicial Office Impartially and Diligently.  Canon 3B(7) provides in part:

A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that

. . . .

(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

Fla. Code Jud. Conduct, Canon 3B(7)(e).

The issuance of arrest warrants is done in an ex parte setting based upon a request from and information provided by law enforcement and the State Attorney’s office to a judge.  It is clearly one situation within the contemplation of 3B(7)(e) where ex parte communication is authorized by law, due to the risk that the accused might flee or hide if she/he was aware that a warrant was going to issue. If the historical criteria of the accused were being provided to the judge by law enforcement or the State Attorney, the judge would be permitted to receive and rely on it. However, as noted above, that statutorily important information is often not provided to the judge in the warrant package or by those seeking the arrest warrant.

What concerns the inquiring judge is one official comment to Canon 3B(7) which states in part that,  Certainly, the historical criteria found in section 903.011(6) prohibiting release before first appearance is factual, such as being arrested while on probation, being a PRR or HVFO when arrested, or having been arrested three times in the last six months.  However, those historical criteria facts are not truly “facts in a case.”  Rather, these “bail facts” are merely factors for determining  pre-first appearance bail eligibility and they have nothing to do with whether the accused committed the crime.

 The following cases finding that judges improperly considered ex parte communications or conducted improper independent investigation all involved “case facts” rather than “bail facts,” an important distinction. During a bench trial, without notice to or the involvement of the litigants or counsel, a judge improperly contacted computer experts to determine the reasonable cost of software updates, which was an element of the damages claimed.  A judge who, without any parties present, met with the estate’s accountant for one hour to analyze the validity of the petitioner’s financial objections was found to have acted contrary to Canon 3B(7) and the commentary quoted above. A trial judge who conducted a multifaceted independent investigation of case facts by reviewing a plethora of information from a variety of sources and having an ex parte conversation with the medical examiner, none of which was presented in open court, drew strong criticism for violating Canon 3B(7).[6]  In a guardianship case, the judge conducted an inappropriate independent investigation of case facts by interviewing the principal of the school where a child was enrolled and by obtaining financial records directly from the bank to investigate the guardianship account activity. A trial judge violated the “independent investigation” prohibition by his ex parte conversations with school administrators to see if the wife had, as ordered, included the former husband as a contact for the children; then based a change in visitation on what he had learned. Each of the foregoing situations involved a judge, who was the decision maker, engaging in ex parte communications and independent investigation of the facts determinative of the issues and outcome of the related case.

Against the backdrop of those cases, it is clear that a judge researching reliable data sources to determine if the accused’s historical criteria may prohibit release on bail prior to first appearance is not independently investigating “facts in the case.”  The issuing-judge’s “No Bond Pending First Appearance” endorsement on the arrest warrant based on the accused’s historical criteria found in section 903.011(6), while temporarily significant, is of limited import and has no effect on the case outcome.  Section 903.011(6) has the singular effect of not permitting an accused’s release prior to first appearance or bond hearing.  Likewise, an endorsement of “No Bond Pending First Appearance” called for under any aspect of section 903.011(6) is directed only to the arresting officer or jailor, advising that the accused is not to be released prior to first appearance.

Florida Rule of Criminal Procedure 3.130(a) requires that within twenty-four hours of arrest an accused must be given a first appearance hearing during which the judge will decide, inter alia, what bail and other conditions for pre-trial release, if any, will be appropriate.  Even in those situations where the arrest warrant does contain a bail amount, that amount is not intended to limit the first appearance judge’s discretion in applying Rule 3.131(b)(2) to determine an appropriate amount. Likewise, a “no bond” endorsement from the arrest warrant-issuing judge regarding the accused’s initial ineligibility for bond due to section 903.011(6) is not binding at first appearance or any bond determination hearing.  

For the reasons set forth above, the Committee is of the opinion that a judge’s limited independent research into the accused’s § 903.011(6) historical criteria in connection with issuing an arrest warrant does not violate Canon 3B(7) and is permissible.

(Mike Frisch)