Gary Kollin writes:
I just filed a class action 1983 civil rights federal lawsuit seeking to void the capias warrants that are issued by the Broward Clerk upon the filing of an information. The complaint is attached. These capiases have been issued for over 42 years, at least since I became a lawyer, and have never been challenged.
The argument in the lawsuit is as follows. For at least that period when the State Attorney filed a felony information, the State also filed an instruction sheet to the Clerk directing the Clerk to issue the capias. The Clerk then issued the capiases and set the bonds on the capiases as set forth on the convenience bond list.
The argument is that the State had no right to instruct the Clerk to issue the capiases because the Constitution requires that warrants can only be issued by an independent and detached magistrate after a determination of probable cause and that the magistrate is the one that sets the bond. The Clerk has no authority to set a bond and no authority to issue the capias without a judge’s order.
In every other circuit I investigated, the Information and probable cause affidavit are submitted to a judge who determines probable cause, issues the capias if the standard is met, and sets the bond.
Additionally, this issue applies to every pending case where the defendant was arrested on a not-in-custody capias. The argument is that any evidence or confession obtained as a result of the arrest on the unconstitutional capiases, they are fruit of the poisonousness tree and suppressible. A prime example is when drugs are discovered as a result of the arrest.
If you represent any person who has an outstanding not-in-custody capias, please contact me.
CIVIL RIGHTS CLASS ACTION COMPLAINT
FOR INJUNCTIVE AND OTHER EQUITABLE RELIEF: