Cordell Nichols, Jr. v. Thomas McCarthy

In the Missouri Court of Appeals Eastern District DIVISION THREE

CORDELL NICHOLS, JR, ) No. ED109897 ) Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis ) Case No. 2022-CC00200-01 vs. ) ) Honorable Craig E. Hellmann THOMAS MCCARTHY, ) ) Respondent. ) Filed: December 14, 2021

The petitioner, Cordell Nichols, Jr., appeals the judgment entered by the Circuit Court of the City of St. Louis in favor of the respondent, Judge Thomas McCarthy, in this declaratory judgment action. Nichols sought a declaration that Missouri Supreme Court Rule 33.01(c) requires the circuit court to consider a defendant’s ability to pay when setting monetary conditions of release in the initial arrest warrant in criminal cases.

We hold Missouri Supreme Court Rules 22.04 and 33.01 require only that the court rely on available information—meaning information present or ready for immediate use—when setting bond in an initial arrest warrant. Generally, information regarding a defendant’s ability to pay is not available to the court when it issues the initial warrant. Therefore, we further hold that the rules do not impose upon police, prosecutors, and courts an obligation to investigate a defendant’s financial resources and ability to pay before an initial warrant for arrest can be issued under Rule 22.04. We affirm the trial court’s judgment.

Factual and Procedural Background

On December 30, 2019, Officer Smith of the St. Louis Metropolitan Police Department was on patrol in the City of St. Louis. Officer Smith was advised of a suspect with a firearm on the Metrolink train, and upon entering the train, security officers directed Officer Smith to Nichols. Officer Smith conducted a pat down search for safety, and discovered a firearm concealed in a nylon bag under Nichols’s sweatshirt. Officer Smith handcuffed Nichols, and inquired into Nichols’s pedigree, which revealed a 2017 felony conviction for second-degree burglary.

On December 31, 2019, the State charged Nichols via complaint with the class D felony of unlawful possession of a firearm. The probable cause statement accompanying the complaint listed Nichols’s prior convictions: two charges of second-degree burglary in 2014 and 2017, respectively; misdemeanor theft in 2017; receiving stolen property in 2013; and unauthorized use of a weapon in 2011. Based on the complaint and probable cause statement, Judge McCarthy issued an arrest warrant for Nichols on December 31. Judge McCarthy found reasonable grounds to believe Nichols presented “a danger to the crime victim, the community, or another person,” and set a monetary condition of release in the amount of “$30,000 cash only.” The only information available to Judge McCarthy at the time he set this monetary condition of release was the felony complaint and accompanying probable cause statement, neither of which contained information about Nichols’s ability to pay a bond.

The requirement for a $30,000 cash-only bond remained in effect for only two days. In accordance with Rule 22.07, which requires a defendant arrested and confined under the initial warrant to have a court appearance within 48 hours, Nichols appeared with counsel for his initial appearance on January 2, 2020. Nichols submitted evidence regarding his prior convictions, *3 current parole status for second-degree burglary, prior failure to appear in court on a charge of second-degree robbery, financial resources, unemployment, mental health issues, education, length of residence in St. Louis, and local family ties. At that time, Judge Lynne Perkins determined “upon clear and convincing evidence, that no combination of non-monetary and monetary conditions will secure the safety of the community or other persons,” and ordered Nichols held without bond. In addition to the charge of unlawful possession of a firearm, Nichols had a charge of second-degree robbery pending in the City of St. Louis, and an outstanding warrant for his arrest for failure to appear in court. Nichols also had a prior conviction for second-degree burglary in the City of St. Louis, and convictions for second-degree burglary, receiving stolen property, unauthorized use of a weapon, and misdemeanor theft in St. Louis County.

Because Nichols continued to be confined, he had a bond hearing seven days later on January 9, 2020 in accordance with Rule 33.05. Nichols was represented by counsel at this hearing before Judge Scott Millikan. Nichols presented information about his inability to pay a cash bond, and sought release on his own recognizance. The court, however, found “that no bond and conditions will secure the safety of the community.” The court denied any change in the bond, “finding that the clear and convincing evidence is that the current conditions are the least restrictive to secure appearance and safety,” particularly in light of the pending robbery charge. The court rejected Nichols’s argument that the initial arrest warrant should be recalled because the monetary condition of release—$30,000 cash only—was set without any consideration of Nichols’s ability to pay.

Following his January 9 bond hearing, Nichols unsuccessfully sought relief via remedial writ, which was summarily denied without opinion, and direct appeal, which was dismissed for *4 lack of a final judgment. Nichols then filed a petition for declaratory judgment in the Circuit Court for the City of St. Louis against Judge McCarthy in his official capacity as a judge of the 22nd Judicial Circuit, Associate Division. Nichols challenged the monetary condition of release set in the initial arrest warrant, claiming the bond violated Missouri law as well as a preliminary injunction entered by the U.S. District Court for the Eastern District of Missouri in the case of Dixon v. City of St. Louis.1 Nichols requested the circuit court “enter its judgment declaring that Respondent is required to consider evidence of ability to pay when fixing monetary conditions of release in bonds and initial arrest warrants.” Nichols claimed he had no adequate remedy at law because he had already been denied relief via both remedial writ and direct appeal in the appellate court and the Supreme Court.

The Missouri Attorney General’s Office filed a motion to dismiss on behalf of Judge McCarthy, arguing the circuit court should dismiss Nichols’s petition for failing to state a claim because an adequate remedy exists, namely a writ of mandamus. The motion pointed out that Nichols had, in fact, already sought that remedy, albeit unsuccessfully. The circuit court granted the motion to dismiss, reasoning that Nichols had an adequate remedy at law in the form of a remedial writ in a higher court. Nichols appealed to this Court, and we reversed and remanded,

1 The referenced federal case, Dixon v. City of St. Louis, was dismissed following significant changes to Missouri Supreme Court Rules and pretrial detention practices and procedures. Case No. 4:19-cv-0112-AGF, 2021 WL 4709749, at *11 (E.D. Mo. Oct. 8, 2021). The Dixon plaintiffs filed an action under 42 U.S.C. 1983 challenging the constitutionality of the procedures by which the defendant state and city officials set monetary bail. Dixon v. City of St. Louis, 950 F.3d 1052, 1054 (8th Cir. 2020). The plaintiffs alleged a system of pretrial detention where the courts routinely ordered secured bail shortly after arrest without an individualized determination of the defendant’s ability to pay, risk of flight, or danger to the public. Id. at 1055. The federal district court entered a preliminary injunction enjoining the enforcement of any monetary condition of release resulting in detention unless findings support that detention is necessary because there are no less restrictive alternatives to ensure the defendant’s appearance or public safety. Id. at 1054. The Eighth Circuit vacated the injunction and remanded the case, concluding that the district court failed to adequately consider Missouri’s new Rules of Criminal Procedure implemented to address the very procedures the Dixon plaintiffs challenged. Id. at 1055-56. The. U.S. District Court dismissed the action October 8, 2021 because “Defendants’ practices have evolved dramatically such that further proceedings on the merits in this Court would offend doctrines of mootness and comity.” Dixon, 2021 WL 4709749, at *11.

holding that when, as here, relief by remedial writ is denied without opinion, the denial does not constitute a decision on the merits and has no preclusive effect. Nichols v. McCarthy, 609 S.W.3d 483, 486-87 (Mo. App. E.D. 2020)(“Nichols I”). Because Nichols was unable to obtain a decision on the merits of his claim, he had no adequate remedy at law. Id. at 487. As a result, Nichols was entitled to a declaration of rights under the Declaratory Judgment Act. Id.

On remand, the parties stipulated to the following facts and proceeded to a bench trial:

a) When Judge McCarthy issued the initial arrest warrant in the case at issue, criminal cause number 1922-CR03961, the only information available to him was the felony complaint and the probable cause statement. b) Neither the felony complaint nor the probable cause statement in the case at issue contained any information about [Nichols’s] ability to pay. c) Judge McCarthy set the bond in the initial arrest warrant in the case at issue in the amount of $30,000 cash only.

Nichols submitted ten exhibits as evidence, and argued a court could not impose a cash bond in the absence of any information regarding the defendant’s ability to pay. He further argued the rules imposed an obligation, that should be undertaken by the police or prosecutor prior to issuance of the initial arrest warrant, to gather information regarding the defendant’s employment and the ability of the defendant and his or her family to pay a cash bond.

The trial court entered judgment in favor of Judge McCarthy. The trial court concluded that neither the current nor former versions of the Missouri Rules of Criminal Procedure prohibit the court from imposing a cash bond when no financial information regarding the defendant is available. The trial court continued that if the Supreme Court intended to preclude circuit courts from imposing cash bonds when no financial information is available, the Supreme Court could have stated as such, but did not. The trial court ruled:

Rule 22.04 also requires only “available information” which on its face does not require any gathering of information. In light of the realities of the logistics inherent to getting a warrant signed within required time parameters, it is entirely reasonable that the Supreme Court would not require such information gathering in light of the hearing that

is provided to defendants within 48 hours under Rule 33.01, and seven days thereafter if the defendant is still detained under Rule 33.05. This [c]ourt will not infer such an obligation in the current Rule 22.04 when the Supreme Court has not directed it.

(internal citations omitted). Nichols appeals.

Discussion

On appeal, Nichols claims the trial court erred in granting judgment in favor of Judge McCarthy because Nichols pled and proved at trial a viable claim for declaration of rights as a matter of law, and the judgment incorrectly declares and applies the law. Specifically, Nichols contends Rule 33.01(c) requires the circuit court to consider ability to pay when fixing monetary conditions of release in the initial arrest warrant in criminal cases involving bailable offenses, and the current practice of setting arbitrary sums of monetary amounts in the initial arrest warrant without considering the defendant’s ability to pay violates Missouri law.

Standard of Review

Our standard of review in a declaratory judgment action is the same as in any other bench-tried case. Allsberry v. Flynn, 628 S.W.3d 392, 395 (Mo. banc 2021); Farber v. Metro. Police Dep't of City of St. Louis, 558 S.W.3d 70, 73 (Mo. App. E.D. 2018). We will affirm the trial court’s judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Allsberry, 628 S.W.3d at 395; Farber, 558 S.W.3d at 73. We review de novo Nichols’s claims that the trial court erroneously declared and applied the law. Allsberry, 628 S.W.3d at 395.

We review de novo the interpretation of Missouri Supreme Court rules. State v. Ford, 351 S.W.3d 236, 238 (Mo. App. E.D. 2011). When interpreting Supreme Court rules, we apply principles similar to those for interpreting statutes. Id. We determine the intent of our Supreme Court from the rule’s language, and give the words used in the rule their plain and ordinary *7 meaning. Id. We resort to statutory construction only when the language is ambiguous; otherwise, we must give effect to the statute—or the rule—as written. State v. Haynes, 564 S.W.3d 780, 784 (Mo. App. E.D. 2018). A rule is considered ambiguous only when we cannot ascertain the Supreme Court’s intent from the language used by giving the language its plain and ordinary meaning. See id. (statute ambiguous only when we cannot ascertain legislative intent by giving statute’s language its plain and ordinary meaning).

Mootness Doctrine

As we recognized in Nichols I, this appeal may be moot as to Nichols, but we decline to dismiss on that basis. We find “the public-interest exception to the mootness doctrine applies because the issue raised has general public interest and importance, and is likely to recur while otherwise evading appellate review.” Nichols I, 609 S.W.3d at 491. Here, Nichols raises an issue of general public interest and importance for all defendants for whom bond is set in the initial arrest warrant, and the issue is a recurring one. Id. In addition, the issue will continue to evade appellate review because defendants generally will have issues regarding bond resolved before they can obtain a declaration of rights in the circuit court followed by appellate review. Id.

Analysis

“It is well-established that the incarceration of those who cannot afford to pay money bail, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Dixon v. City of St. Louis, Case No. 4:19-cv-0112-AGF, 2021 WL 4709749, at *1 (E.D. Mo. Oct. 8, 2021). It is undisputed that rules imposed by the Missouri Supreme Court between July 1, 2019 and January 1, 2020 seek to protect defendants from confinement pending trial based solely on the defendant’s ability to pay a monetary bond. See Dixon v. City of St. Louis, 950 F.3d 1052, 1056 (8th Cir. 2020) (by updating *8 cash bail rules, Missouri Supreme Court presumably used superintendence powers to signal lower state courts that status quo was unacceptable). The new Supreme Court Rules clarify that a court may not impose cash bond without an individualized assessment of a defendant’s financial circumstances, flight risk, threat to public safety, and consideration of alternative release conditions. Id. at 1055; Dixon, 2021 WL 4709749, at *2. In accordance with the new provisions found in Missouri Supreme Court Rules 22.04(d), 22.07, 33.01, and 33.05, the 22nd Judicial Circuit in the City of St. Louis implemented new practices and procedures to comply with the rules. Changes in bond procedures in the City of St. Louis “resulted from substantial deliberation and concerted effort by the [j]udges and staff leadership within the 22nd Circuit to comply with the new mandates of Rule 33.01” now in effect. Id. at *8. These procedures were in place and applied in Nichols’s case. Nevertheless, Nichols contends a court violates Missouri law when it fails to assess a defendant’s ability to pay in setting bond in an initial arrest warrant.

The State filed a complaint charging Nichols with the class D felony of unlawful possession of a firearm, and the court on December 31, 2019 issued an initial warrant for his arrest, which required a cash bond of $30,000. At that time, Missouri Supreme Court Rule 22.04(d) provided:2

If a warrant is issued under this rule, the court shall take into account, on the basis of available information, the factors set forth in Rule 33.01(e) when setting the condition or combination of conditions of release, if any, required by Rule 33.01(b) and allowed by Rule 33.01(c).

2 Rule 22.04(d) was amended effective January 1, 2020 to add the italicized language below:

If a warrant is issued under this rule, the court shall take into account, on the basis of available information, which may include a written recommendation from the State, the factors set forth in Rule 33.01(e) when setting the condition or combination of conditions of release, if any, required by Rule 33.01(b) and allowed by Rule 33.01(c).

The amendment does not affect our analysis of the issue presented here. *9 Emphasis added. Rule 33.01(e), fully set out below, requires the court to take into account, “[b]ased on available information,” numerous specified factors, including the defendant’s financial resources and ability to pay.

Effective January 1, 2020, a defendant arrested and confined under an initial warrant for a felony offense is entitled to an initial appearance before a judge no later than 48 hours, excluding weekends and holidays, after confinement “under the warrant in the county that issued the warrant or in a county with which the county issuing the warrant has a contractual agreement to hold the defendant.” Rule 22.07. A defendant who continues in detention after the initial appearance shall have his or her detention or conditions of release reviewed at a hearing by the court no later than seven days, excluding weekends and holidays, after the initial appearance, absent good cause shown by the parties or the court. Rule 33.05. At the hearing, the court shall determine if the defendant shall be detained or released. Id.

Rule 33.01 provides for the pre-trial release of defendants and setting of conditions for release. The rule states in relevant part:

(a) A defendant charged with a bailable offense shall be entitled to be released from custody pending trial or other stage of the criminal proceedings.

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(c) The court shall release the defendant on the defendant’s own recognizance subject only to the conditions under subsection (b) with no additional conditions of release unless the court determines such release will not secure the appearance of the defendant at trial, or at any other stage of the criminal proceedings, or the safety of the community or other person, including but not limited to the crime victims and witnesses. If the court so determines, it shall set and impose additional conditions of release pursuant to this subsection.

***

When considering the least restrictive condition or combination of conditions of release to set and impose, the court shall first consider non-monetary conditions. Should the court determine non-monetary conditions alone will not secure the

appearance of the defendant at trial, or at any other stage of the criminal proceedings, or the safety of the community or other person, including but not limited to the crime victims and witnesses, then the court may consider monetary conditions or a combination of non-monetary and monetary conditions to satisfy the foregoing. After considering the defendant’s ability to pay, a monetary condition fixed at more than is necessary to secure the appearance of the defendant at trial, or at any other stage of the criminal proceedings, or the safety of the community or other person, including but not limited to the crime victims and witnesses, is impermissible.

***

(e) In determining whether to detain the defendant pursuant to subsection (d) or release the defendant with a condition or combination of conditions of release, if any, pursuant to subsection (c), the court shall base its determination on the individual circumstances of the defendant and the case. Based on available information, the court shall take into account: the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant’s family ties, employment, financial resources, including ability to pay, character, and mental condition; the length of the defendant’s residence in the community; the defendant’s record of convictions; the defendant’s record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings; whether the defendant was on probation, parole or release pending trial or appeal at the time the offense for which the court is considering detention or release was committed; and a validated evidentiary-based risk assessment tool approved by the Supreme Court of Missouri.

(f) A court detaining or releasing the defendant under this rule shall enter an order stating the condition or combination of conditions of release, if any, set and imposed by the court. If the defendant is detained and unable to comply with any condition of release, the defendant shall have the right to a release hearing pursuant to Rule 33.05. At any hearing conducted under Rule 33, the court shall permit but not require either party to make a record on the defendant’s financial status and ability to pay any monetary condition. . . .

(Emphases added).

Nichols had an initial court appearance on January 2, 2020, within 48 hours of his arrest, under Rule 22.07. He was represented by counsel at the January 2 hearing, and submitted evidence regarding his prior convictions, current parole status, prior failure to appear in court, financial resources, unemployment, mental health issues, education, length of residence in St. Louis, and local family ties. Determining “upon clear and convincing evidence, that no *11 combination of non-monetary and monetary conditions will secure the safety of the community or other persons,” the court ordered Nichols held without bond. In accordance with Rule 33.05, Nichols appeared in court, and had a bond hearing on January 9, 2020, within seven days after his initial court appearance. Nichols was represented by counsel at the January 9 hearing, and the court conducted an individualized assessment of Nichols’s criminal record, flight risk, ability to pay, and risk to public safety. Based on Nichols’s record, particularly the pending charge of second-degree robbery for which Nichols previously failed to appear, the court found “that no bond and conditions will secure the safety of the community,” and again ordered him held without bond.

Nichols does not dispute he appeared at these two hearings on January 2 and January 9, 2020 as required by Rules 22.07 and 33.05, respectively. He does not dispute that he submitted evidence of his inability to pay a cash bond and the court considered such evidence at those two hearings. Rather, relying on carefully selected language only from Rule 33.01(c), he contends the rule requires the court “to consider [a defendant’s] ability to pay when fixing monetary conditions of release on the initial arrest warrant in criminal cases involving bailable offenses.” Nichols states in a conclusory fashion without analysis or support that “[n]otably this rule applies to every instance in which the court may have an opportunity of fixing a monetary condition of release, even ‘on the initial bonds.’”

Nichols’s argument ignores the plain language of Rules 22.04(d) and 33.01(e). Rule 22.04 at the time of Nichols’s arrest stated that when a court issues an arrest warrant for a felony offense, “the court shall take into account, on the basis of available information, the factors set forth in Rule 33.01(e) when setting the condition or combination of conditions of release.” Rule 33.01(e) states in relevant part “[b]ased on available information, the court shall take into *12 account . . . financial resources, including ability to pay . . .” along with numerous other factors. “Available” means “present or ready for immediate use.” Available, MERRIAM-WEBSTER https://www.merriam-webster.com/dictionary/available (last visited Dec. 8, 2021). Nichols does not acknowledge in his brief that such language exists in the rules. He stipulated at trial, however, that Judge McCarthy had no information available to him—no information present or ready for immediate use—regarding Nichols’s financial circumstances when he set bond in the initial arrest warrant. Judge McCarthy had available only a complaint and a probable cause statement listing Nichols’s prior convictions, thus leading the judge to determine Nichols was “a danger to the crime victim, the community or another person.”

Nichols would have us strike the phrases “on the basis of available information” and “based on available information” out of Rules 22.04(d) and 33.01(e), respectively. We decline to do so. We presume the Supreme Court intended every word, clause, sentence, and provision of its rules to have effect. See State v. Porter, 464 S.W.3d 250, 255 (Mo. App. E.D. 2015)(“We presume the legislature intended every word, clause, sentence, and provision of a statute to have effect.”). Because the Supreme Court saw fit to include the phrases “on the basis of available information” and “based on available information” in Rules 22.04(d) and 33.01(e), respectively, we presume the Supreme Court intended these phrases to have effect and to mean precisely what they plainly and unambiguously state.

Further, Nichols would have us read into Rule 33.01(c) a requirement that police or prosecutors have an obligation to obtain detailed financial information about every defendant for whom an initial warrant is issued. At trial, Nichols argued that if police can obtain a defendant’s history of criminal convictions, then they just as readily should be able to obtain a defendant’s employment history. When the trial court asked how police or prosecutors would obtain such *13 information if the defendant invoked his or her Fifth Amendment rights, Nichols provided no answer. Nichols also argued that the assessment of ability to pay before setting bond in an initial warrant should extend to a defendant’s family members. When the trial court asked how police or prosecutors would even know who family members were, Nichols again provided no answer.

Nichols is effectively asking this Court to add language to Rules 22.04 and 33.01 to impose an obligation on the State to investigate a defendant’s financial information prior to issuance of an arrest warrant, and then require the court to consider these financial circumstances when setting monetary bond on an initial arrest warrant. The language of the rules, however, is not ambiguous, and does not impose such an obligation. We must give effect to the rules as written, without reading additional requirements into them. Haynes, 564 S.W.3d at 784; Ford, 351 S.W.3d at 238. In short, we will not add words to a plainly-worded rule to alter its meaning. If the Missouri Supreme Court intended for the circuit court to consider a defendant’s ability to pay when setting bond in an initial arrest warrant, then the Court would have included this language. We must interpret and apply the rules as the Supreme Court writes them. See Haynes, 564 S.W.3d at 787 (“We must interpret and apply the laws as the legislature writes them.”). To do otherwise would require this Court to re-write the rules, and to legislate an obligation that could raise other constitutional implications.

Nichols refers us to the Supreme Court’s Missouri Task Force on Criminal Justice report. Information provided to the public by the Missouri Task Force on Criminal Justice regarding the new rule provisions supports our determination that police and prosecutors are not required to investigate and provide information on a defendant’s ability to pay before the court may set a monetary bond in the initial warrant for arrest.

Determinations regarding pretrial release are to be made with the best information available. A defendant who is incarcerated because he or she is unable to comply with

the conditions of release set in the warrant for arrest must come before a judge in a timely manner. The judge then must hold a hearing at which the prosecutor and defendant can present evidence regarding appropriate conditions of release.

Emphases added. Missouri Task Force on Criminal Justice, KZIM KSIM https://www. kzimksim.com/2019/07/16/missouri-task-force-on-criminal-justice/ (last visited Nov. 30, 2021). In addition:

While the rules establish factors and procedures for a judge’s consideration of whether it is appropriate to release a defendant pending trial as well as any conditions of pretrial release, nothing in the new rules mandate any particular result or otherwise remove a judge’s discretion to make decisions under the law.

Emphasis added. Id.

Nichols argues that initial cash bonds set absent consideration of a defendant’s ability to pay lacks an evidentiary basis, and he cites as supporting authority civil cases involving judgments awarding child support, spousal maintenance, and attorney’s fees, and entering a civil contempt judgment and commitment order for failure to pay court-ordered maintenance. We will not address these cases individually, but will say they are clearly inapposite and irrelevant to the issue before us. Nichols’s cited cases address final judgments ordering a party to pay a nonrefundable amount, often over the course of many years. Unlike an initial bond set in a criminal arrest warrant, awards of child support, spousal maintenance, and attorney’s fees, and imposition of civil contempt penalties for failure to pay a support award are final, appealable judgments, not interlocutory orders. The civil judgments in Nichols’s cited cases require consideration of different statutory factors, and have a different standard of review and application of law. In addition, strict time parameters demand that initial bonds be set quickly—sometimes in the middle of the night—with little information available to the judge, circumstances far different from those in the civil cases Nichols cites. Initial bonds are reviewable within 48 hours and again within another seven days as provided by the rules. The rules as well as the 22nd Judicial Circuit *15 practice and procedures safeguard defendants’ procedural due process and equal protection rights. Indeed, the rules require consideration of a defendant’s ability to pay and alternative conditions of release, but the rules do not guarantee release on bond or mandate any particular result. Consequently, Nichols’s argument and cited authority are not persuasive.

Conclusion

We must interpret and apply the rules as the Supreme Court writes them. We cannot read selected portions of the rule in isolation so as to omit crucial language. Likewise, we cannot add language to a plainly worded rule to impose additional requirements on parties or the courts.

We hold Rules 22.04 and 33.01 require only that the court rely on available information—meaning information present or ready for immediate use—when setting bond in an initial arrest warrant. Generally, information regarding a defendant’s ability to pay is not available to the court when it issues the initial warrant. Only if the information available at the time includes information regarding the defendant’s ability to pay is the court required to consider it. Therefore, we further hold that the rules do not impose upon police, prosecutors, and courts an obligation to investigate a defendant’s financial resources and ability to pay before an initial warrant for arrest can be issued under Rule 22.04. We affirm the trial court’s judgment.

_________________________________ Angela T. Quigless, J.

Philip M. Hess, P.J., and Colleen Dolan, J., concur.