Adam Pollack:
If
you are arrested in Florida , the decision whether to answer any
questions is entirely your own. You should give this matter your
careful consideration because oral statements, as well as, written
statements will be received as evidence in court against you.
If you are offered any inducement to sign a document or if you are
threatened, coerced, or forced to sign anything, advise your attorney
immediately and the senior police official in charge. If you do not
have an attorney, you may ask to see one immediately.
If you are unable to afford an attorney, you have a right to be put in
touch with the Public Defender immediately. The Public Defender is a
lawyer and is available to give you important legal advice following
your arrest. If you are in doubt about whether you should talk with the
arresting officer or other law enforcement officers, you should wait
until you have spoken with an attorney before giving up your right to
remain silent.
When are you under arrest?
You are arrested when law enforcement officers take you into custody or
otherwise deprive you of your freedom of movement in any significant
way, in order to hold you to answer for a criminal offense. This may
include producing your drivers license and the officer not giving you
the license back immediately.
Police officers, under Florida law, are obligated to identify
themselves and to advise you that you are under arrest and why, unless
circumstances make it impossible for them to do so at that time.
You may, in fact, be under arrest even though no one has actually used
the word "arrest" or any other comparable word. The fact that you have
been deprived of your freedom of movement in some significant manner
may amount legally to an arrest.
Ordinarily, private citizens do not have power of arrest in Florida ;
but under limited circumstances a private party may make an arrest
where an actual commission of a felony is involved.
May a Law Enforcement Officer Detain You Without Arresting You?
Based
upon reasonable suspicion that you may be involved in criminal
activity, a police officer may require you to identify yourself and
explain your presence at a particular time, without arresting you.
Under Florida law the officer may not remove you from the immediate
vicinity without making an arrest, unless you voluntarily accompany the
officer to some other location.
If the officer has reasonable grounds to believe that you are armed, he
or she may conduct a limited pat-down of your outer garments for the
purpose of detecting weapons. If this "frisk" results in reasonable
belief on the part of the officer that you are carrying a weapon, the
officer may remove the suspicious object for protection. The officer
must return to you any unlawful object found unless the officer places
you under arrest. Unless the officer places you under arrest, the frisk
or search must be limited to suspected weapons.
The officer may ask you some questions in order to complete his field
interrogation card. You have a constitutional right to not answer them,
or give your name, unless the officer has an articulable suspicion that
you are involved in a crime. Note, this is not a mere hunch.
At the conclusion of this temporary detention the officer must either
arrest you or let you go.
If you should enter a retail establishment where goods are placed on
display and for sale, the merchant or his employees may detain you on
the premises for a reasonable time for questioning if they have
probable cause to believe that you have stolen or have attempted to
steal goods for sale. Under such circumstances a police officer called
to the scene may make an arrest for shoplifting even though the alleged
offense was not committed in his presence.
When May You be Arrested With a Warrant?
A police officer may arrest you at any time if he has a warrant for
your arrest, or if he knows that a warrant for your arrest has been
issued.
A warrant is an order issued by a court charging that you committed a
particular crime and directing the sheriff and all police officers of
the state to arrest you and bring you before the court. You may require
the officer to read the warrant after you have been arrested.
An arrest warrant should not be confused with a search warrant.
When May You be Arrested Without a Warrant?
In Florida , a police officer may make an arrest without a warrant
under a variety of circumstances. Among those circumstances are:
1) when the officer knows that a warrant for your arrest has been
issued and is still in effect even though the warrant may be held by
another police officer;
2) when the arresting officer has good reason to believe that a felony
has been or is being committed and that you are the person who has
committed or is committing the felony.
A felony is a crime which is punishable by death or by imprisonment in
the state penitentiary for a term of years. Examples of felonies
include the more serious crimes such as murder, sexual battery,
robbery, burglary, sale of narcotics, as well as grand larceny, keeping
a gambling house and many others;
3) when a misdemeanor is committed in the presence of the officer.
Under Florida law, there are a few specified misdemeanors for which an
arrest may be made without a warrant, even when not committed in the
presence of the arresting officer. These exceptions to the general rule
are shoplifting, carrying a concealed weapon other than a firearm,
possession of not more than twenty grams of marijuana and a few others.
What Force May the Officer Use in Making an Arrest?
The officer may employ all reasonable and necessary force to overcome
resistance in making a lawful arrest. The legality of the arrest has
nothing to do with whether or not you are ultimately convicted. As long
as the officer has reasonable grounds for making the arrest at the time
for the arrest, you cannot claim later that the arrest was unlawful
merely because you were found not guilty.
Resisting arrest with violence is a felony under Florida law. Resisting
arrest without violence or offering to do violence is a misdemeanor.
You could be convicted of either of these crimes, even if you were
found not guilty of the crime for which you were arrested.
Obstructing an officer in his duty with violence is also a felony under
Florida law. Obstructing or interfering with an officer in the
performance of his or her duty without violence is a misdemeanor.
If you believe that your rights are being violated, make it a point to
remember exactly what the police officer did and then advise your
attorney concerning this at the earliest possible time.
When May You be Searched?
While the law of search and seizure is very complex, and often will
depend on the facts and circumstances in a particular case, you should
not resist a search with force; however, neither should you consent to
an improper search. If you do object to a particular search, advise the
officer who is conducting it that you do not consent, that you do
object to the search and ask him or her to identify himself.
In most cases involving search and seizure issues, "reasonableness" of
the search is the legal test without a search warrant. If police
officers arrive at your premises armed with a search warrant, they may
search only that area or portion authorized in the warrant itself. You
are entitled to have a copy of the search warrant left with you and
served on you if you are present.
If you are arrested in your home, the officers may conduct a limited
search of the immediate area where you are arrested without a search
warrant. They also may check the rest of the house for any hidden
accomplices. They may seize any contraband, stolen property,
instrumentalities or evidence of a crime that they discover in plain
view in any portion of the house where the officers have a right to be.
Your automobile may also be impounded and inventoried if there is no
qualified licensed driver or towing agent to take charge of it. If an
officer is about to impound your car, tell him if you have a relative
or friend who will come and get it, or that you have a preference of
your own station to tow your car.
What Procedures Are Usually Followed When You are Arrested?
The officer will take you to a police station.
You will be advised generally as to the charges against you. However,
these charges may be changed later and stated in more detail by the
office of the prosecuting attorney or in some instances by the grand
jury.
You may be required to participate in a lineup, to prepare a sample of
your penmanship, or to speak phrases associated with the crime with
which you are charged, to put on certain wearing apparel or to give a
sample of your hair. You should ask to have your attorney present
during any of these procedures. You have an absolute right to counsel,
if you are asked to participate in a lineup after you have been formally charged by the prosecuting attorney or indicted by a grand jury.
You also may be required to be fingerprinted and photographed.
You will be arraigned at a court session or your attorney will file a
written plea on your behalf. An arraignment is no more than a plea of
guilty, not guilty or no contest to the charge. If you plead not
guilty, a trial date will be set. If you plead guilty or no contest, a
sentencing date will be set, generally after the court has received a
pre-sentence investigation report from probation and parole.
What Happens to Personal Property You May Have With You?
If you should be booked into a jail, the police may take money and
property from you for safekeeping. They will carefully inventory your
money and property and give you a copy of the inventory.
At the time of your release or at the conclusion of your case, such
money or property that was not seized as evidence in the case will be
returned to you. You will be given an opportunity to sign the property
list. You should make certain that the list includes all the items
taken from you.
What Are Your Rights After You Have Been Arrested?
You have a right to know the crime or crimes with which you have been charged.
You have a right to know the identity of the policemen who are dealing
with you. This is your right by statute and by custom.
You have the right to communicate by telephone with your attorney,
family, friends, or bondsman as soon after you are brought into the
police station as practicable. The police have a right to complete
their booking procedures before you are allowed to use the telephone.
You have the right to be represented by counsel at all critical stages
of your case. Importantly, you have the right to have a meaningful
initial appearance before a judge within 24 hours of your arrest. At
this initial appearance, the judge must determine whether probable
cause exists for your arrest and if probable cause exists, then set a
reasonable bail in most instances. If you cannot afford an attorney,
the court will appoint an attorney to represent you free of charge, if
you qualify under existing criteria as an insolvent person. This right
pertains to any offense, however, trivial, for which any imprisonment
whatsoever might result.
Constitutional
rights may be waived or given up voluntarily. Before you say or sign
anything that might result in waiver of a constitutional right, weigh
your decision carefully.
What Rights Do You Have When You are Questioned By The Police?
You have the right to remain silent.
If you choose to speak, anything you say can be used against you in court.
If you decide to answer any questions, you may stop at any time and all
questioning will cease.
You have a right to consult with your attorney before answering any questions.
You have the right to have your attorney present if you decide to
answer any questions, and if you cannot afford an attorney, one will be
provided for you or appointed for you by the court without cost to you
before any further questions may be asked.