Arrest and Search FAQs
Once an arrest has occurred, and before asking you any questions other than your name and address, law enforcement officers must provide your Miranda Warning: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you can not afford an attorney, one will be provided for you before and during any questioning. You have the right to exercise any of these rights at any time.” In addition to the above, many individual states require additional language.
The State of Florida may add the following: “Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
Once you have been read your rights, it is best to say only the following: “YES, I understand my rights, and NO, I do not want to answer any questions. Please speak to my attorney.” (Even if you do not have a particular attorney in mind, they don’t need to know that.)
NO. After an arrest, the police submit the case to the Office of the State Attorney. The case is reviewed by an intake attorney who determines:
1) if a law, or laws, were broken,
2) if there is evidence to support and successfully prosecute the charge, and
3) if the arrest and collection of evidence were legal and proper.
The intake attorney makes the first decision on whether or not to move forward with the prosecution, or dismiss it. At this point, the intake attorney is using the police report to make a yes/no decision on your case, and the evidence therein may be biased against you.
It is imperative to have your side of the story heard by the Office of the State Attorney, and that is why it is so important to involve a criminal defense attorney early in the process. Your attorney can speak directly to the intake attorney and possibly influence what charges, if any, will be filed. Once charges have been filed it is hard to ‘unring that bell.’
Finally, while the police are knowledgeable about the law, they are not the experts. Only the State Attorney can charge a citizen with a crime. If you have been arrested, it does not automatically follow that you will be charged.
No, not necessarily. It may mean, however, that your incriminating statement (i.e. I did it) may not come in as evidence against you at trial.
We have all heard the “rights” being read to many suspects on television and in the movies, and this has caused some confusion. The police officer does not have to read anybody their “rights” unless that officer wants to get a statement or confession from a suspect and have it admitted in court. If the officer does not want to record what you have to say and use it against you, he does not have to read you your rights. However, if the officer wants to ask you some questions other than your name and address, he must advise you that you don’t have to answer his questions, that if you do, anything you say can be used against you and that you have a right to a lawyer before you answer any questions. (See the above Q&A on what happens after arrest!)
Another frequently used tactic of law enforcement is to ask questions before Miranda rights are read. The accused then makes incriminating statements. Later, the detective or agent comes back and reads the Miranda rights. The accused, after having made incriminating statements simply repeats thems believing that he has already said it once, how can it hurt? It is amazing how many people will answer the officer’s questions in some vain attempt to cooperate which gives the State an admission to the crime that will be admissible at trial. Remember, do not answer any questions from a law enforcement officer without first consulting with a criminal defense lawyer.
If you are arrested, the police may start to make you promises or offer you a deal, by saying things such as “You’re not the one we are after, but you’ll be the one in real trouble unless you tell us what happened now.” Sometimes they are being truthful, but sometimes they are not. Also, it is only the prosecutor who can make a “deal.”
IMPORTANT: The law does NOT require that the police be truthful when questioning you. It is wise to say “Please talk about that with my attorney” and NOTHING MORE. Your attorney is better at negotiating with the state than you are. More importantly, what she says CANNOT be used against you. Further, your attorney can turn meaningless promises by the police into binding legal agreements with the prosecutor, perhaps obtaining immunity for you.
YES. There are numerous circumstances under which a search may lawfully be made WITHOUT a warrant. Some general areas of exception where a search can be made without a warrant are: – if the safety of the police officer is involved, – whether the police are in hot pursuit of a criminal, – when they see illegal evidence in plain view, – if a person consents to being searched, and/or — if they have made a lawful arrest.
However, due to the mobility of cars, time does not permit a search warrant to be obtained. As a result, vigilant police are motivated to search suspicious automobiles. However, the police officer must have probable cause to believe that criminal activity is occurring or about to occur. In essence, merely being stopped for speeding should not allow the officer to search your car; however, if the officer saw you throw an empty beer can out the window, that may be sufficient probable cause to search your car (See our page on DUI/DWI offenses). Or, if the officer smells marijuana as he approaches the car, he may have an articulable suspicion to search (See our page on drug offenses). It is unreasonable to make a search of an automobile when the arrest is for a minor traffic violation (like speeding), as a subterfuge for a search for evidence of a serious crime. Yet, the many automobile exceptions are based on the lower expectation to the right of privacy in a car versus a home and the fact that cars are mobile and evidence can be more readily disposed.
In short, NEVER consent to a search of your person, your home or your vehicle.
If you feel that you have nothing to hide, and that challenging the law enforcement officer would be more bother than it’s worth, you can give law enforcement officers consent to search your car. But, rest assured that if there evidence of a crime found, you will be arrested. NEVER give law enforcement consent to search your person, home or vehicle. With consent, the officer does not need a warrant, does not need probable cause, and can take custody of evidence obtained.
While you do not have to consent, bear in mind that the expectation of privacy in a car is less than the expectation of privacy in your home. Based in part on the lessened expectation of privacy in a car, law enforcement officers are permitted to conduct a warrantless search of a car if the officer has probable cause.
Probable cause exists where the facts and circumstances would cause a reasonable person to believe that evidence of a crime could be located in the area to be searched. For example, if the officer claims to smell burning marijuana, he may search the ashtray. With probable cause, law enforcement officers may search any area (and ONLY that area) of the vehicle where the probable cause leads him to believe that evidence may be found. In addition to a probable cause search, any time a law enforcement officer sees evidence of a crime in “plain view,” he can immediately seize the evidence without a warrant.
Drug Charge FAQs
I use drugs, but I have never sold them. The police arrested me and charged me with possession with intent to sell. Can they do that?
The law does not require the police to prove you DID sell, just that your intent was to sell. This is done by the circumstances of the possession and by expert opinion of the police. Factors such as the way it is packaged (many small bundles — “packaged to sell”), and what is found with it (such as scales) can suggest the person’s likely intentions. In addition, experienced narcotics officers will be allowed to testify that from their experience these factors and the quantity found are consistent with an intent to sell the drugs.
<a href=”/drug-crimes-tampa”>To learn more about drug possession charges, click here.</a>
I got busted with two rocks of cocaine and the first time in court prosecutor offered to let me plead to the possession for one day in jail and probation. Should I take it?
That depends on a number of factors:
Why did the prosecution make such an offer off the bat? Is there a problem with his case? Could it get thrown out on legal grounds? What are the consequences of prior convictions in your state? How much time can you serve if you are found in violation of probation? What are the chances of avoiding any conviction at all by trying the case? What effect will this conviction have on your immigration status? Your ability to get a government job? Your ability to get bonded, or to get a professional license? You could even lose your eligibility to receive public assistance or to drive, depending on your jurisdiction’s laws. There may even be programs that allow you to do drug counseling and other things in exchange for an eventual dismissal of the charges.
In other words, the issue is so complicated and far reaching that even if you want to plead guilty, you still need a lawyer’s advice so you know fully what you are doing.
Record Sealing FAQs
I was arrested for underage drinking along with a group of friends at a party. I hired a great defense attorney and she convinced the State Attorney to drop the charge because the police never tested what was in the red Solo cup (it was only orange juice). Will anything show on a background check?
YES, the arrest itself will show up on a background check, even if it was in error!
Many people think that if a charge is dropped, then their case is cleaned out of the system… not so. You must have the arrest sealed or expunged even if nothing ever came of it. Read more about Record Sealing and Expungement here.
In rare cases, an administrative expunction is granted by the court when there has been an obvious error by the court or sheriff’s office.
A good example of this is an arrest that comes about through mistaken identity. For example, John B. Smith is arrested, when the police were really looking for John C. Smith.
If you think you may have been arrested in error, contact our office and see if you may be eligible for an administrative expunction. For information on <a href=”/sealing-expungement”>other types of record sealing or expungement, click here</a>.
Violent Crime FAQs
Whether the domestic violence (DV) is a crime depends upon the particular circumstances, as well as the laws of the state in which the act occurs. In Florida, even a minor argument may be charged as a crime of domestic violence. It is a frequent pattern in DV cases for the victim to be abused, call the police, press charges, then reconcile with the abuser, and seek to have the charges dropped, only to have the entire pattern repeated.
Because of this, domestic violence is now prosecuted as a crime by the State Attorneys Office, even without charges being brought by the abused person, and even without his or her assistance. In Hillsborough and Pinellas counties, a criminal case may be brought against the person causing the harm without a complaint being made by the victim. In Florida, a victim can file a Request Not to Prosecute (RNP) and the charge may be dropped by the State Attorneys Office, but not always, especially when there is an independent witness to the abuse besides the uncooperative victim.
<a href=”/fl-state-criminal-charges”>Learn more about Domestic Violence as State Crime here.</a>
White Collar Crime FAQs
The terms “extortion” and “blackmail” are terms routinely used interchangeably, that is, obtaining property through the use of either oral or written threats. The threats can be of physical harm, or harm to one’s reputation, livelihood, marriage, etc. In some states extortion has only occurred when money or property has actually changed hands as a result of the threat. In other states, just the threat is enough to constitute extortion.
<a href=”/federal-criminal-charges”>See our page on Federal Criminal Charges for more information.</a>
The major difference between larceny and embezzlement is the way in which the property changes hands. With larceny, the property is carried away; it was never in the possession of the perpetrator. With embezzlement, however, the perpetrator has lawfully possessed the property, but then has converted it into his/her own property.
The following example illustrates the difference. A man walks onto a construction site and takes a hammer and goes home. He has committed larceny, because he has taken someone else’s property away, with the intent never to return it. A construction worker on that same site, who uses the hammer every day, puts it in his pocket at the end of the day and takes it home. He has committed embezzlement, because it was in his possession to use while he worked on the site, but when he took it off the site, he converted it into his own property.
Fraud is defined to be “an intentional perversion of truth” or a “false misrepresentation of a matter of fact” which induces another person to “part with some valuable thing belonging to him or to surrender a legal right”. In addition to the traditional criminal definition of fraud, there are many regulatory laws that have very specific rules that must be complied with. If you do not follow these rules to the letter, you could be charged with and convicted of frau
Federal Securities Law cover a broad scope of possible types of fraud. Fraud is not limited to the selling of bogus securities. Securities fraud also involves the sale of legitimate securities for illegal purposes. The laws also make “insider trading” illegal. “Insider trading” generally refers to the purchasing or selling of securities of a company while in possession of material information that has not been generally disclosed in the marketplace.
<a href=”/federal-criminal-charges”>To learn more about fraud, visit our page on federal criminal charges.</a>
White collar crimes typically refer to a type of crime committed by business people, entrepreneurs, public officials, and professionals through deception, as opposed to street crimes which tend to involve force and violence. Examples of white-collar crimes include bank fraud, wire fraud, (i.e mortgage fraud), embezzlement, bribery, extortion, larceny, fraud (e.g., health care,tax, bankruptcy, telemarketing, insurance, and mail, securities and commodities law violations, environmental violations, price fixing, racketeering, loan sharking, black market operations, obstruction of justice and perjury, and computer fraud).
Depending on whether federal or state law has been violated, white collar crimes can be prosecuted at the <a href=”/federal-criminal-charges”>federal</a> or <a href=”/fl-state-criminal-charges”>state</a> level. Penalties vary, but in some cases can result in large fines, restitution, and prison or jail time.