Frequently Asked Questions

These questions and answers are merely a few general guidelines about a few areas of the criminal law. They are not offered as legal advice and should not be considered as such.

Also, as soon as possible, write down everything that happened concerning your arrest. This includes statements made by officers, statements you made, time of day, weather conditions, other witnesses present, etc. This can be very useful information for your attorney and make it much easier for you to remember what happened in case it is months down the line before your case is resolved.

What Are Your Rights After Your Arrest?

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 police officers who are dealing with you. This is your right to statute and by custom. You also have the right to communicate by telephone with your attorney, family, friends, or bondsperson 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.

What Rights Do You Have When Questioned by 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. The police must stop their questioning of you if you make a clear request for an attorney. Phrases such as "I think I want an attorney" will not be clear enough to legally make them stop questioning you. You must unequivocally state you want an attorney.

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 and consult with an attorney. If you cannot afford a private lawyer, you should advise the judge of this fact at your first appearance or as soon after that as possible. The judge will ask you some questions to see if you are eligible for the services of an attorney at public expense. You will probably be asked to take an oath of indigency, which is a sworn statement as to your inability to afford a private attorney.

Should You Make Statements To Law Enforcement?

Generally no. 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 speak to one immediately. Any promise for leniency by the police during an interrogation may result in the statement being "thrown out " of court.

Do You Have a Right To An Attorney?

YES. If you are unable to afford an attorney, you have a right to be put in touch with the Public Defender or, if one is not available, the police must cease questioning you. The Public Defender, a lawyer, 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 CONSTITUTIONAL right to remain silent. Clearing and unequivocally requesting an attorney should stop all questions by the police.

Can a Law Enforcement Officer Detain You Without Arresting You?

Yes, with limitations. Under Florida law, 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 officers must return to you any object found unless they 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 the field interrogation. You have a constitutional right to not answer them, or give your name, unless the officer has an reasonable suspicion that you are involved in a crime. 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 the 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 the officer's presence.

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.

Can An Officer Use Force When Making An Arrest?

The officer may employ all reasonable and necessary force to overcome resistance in making a lawful arrest. 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. You cannot use violence to resist an illegal arrest.

Obstructing an officer with violence is also a felony under Florida law. Obstructing or interfering with an officer on 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.

What Procedures Are Usually Followed When You Are Arrested?
  1. The officer will take you to a police station.

  2. 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.

  3. 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.

  4. You also may be required to be fingerprinted and photographed.

  5. 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.

What Happens To Personal Property When Arrested?

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 may be returned to you, subject to your criminal status. 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.

How Are You Released From Jail?

Upon arrival at the jail or shortly thereafter, you will be given an opportunity to contact your attorney. The attorney, in turn, may arrange for the posting of a bond and may appear with you in court and ask the court to lower the bail if it is believed to be excessive under the circumstances. You may be released upon personal recognizance (your promise to appear in court when directed), or you may be released on bail, which involves the posting of either cash money or a surety bond as security for your court appearance. Bail bonds from licensed sureties are usually available at a cost of 10 percent of the amount of the bail. If you are taken into custody and booked into the jail and remain there, you must be brought before a magistrate within 24 hours of your arrest. At that appearance, you may request that the magistrate lower your bail in consideration of your ties in the community, financial resources, employment record or any other factors, including your past criminal record and your past history of failure to appear in court when scheduled.

Most of this information has been reprinted from www.FLABar.org (Consumer Pamphlet)

Your Right To Remain Silent, AKA Your "Miranda Warnings" What Is a Miranda Warning?

A Miranda warning advises people of their constitutional right not to answer questions or to have an attorney present before answering any questions. If I am not under arrest, do I have to answer a police officer's questions? No. Unless you are placed under arrest you are free to leave at any time. However, if a police officer stops you while you are walking, and asks you for identification, it is probably in your best interest to provide such information. The courts have allowed police officers to detain people for extended periods of time in an effort to determine the identity of the individual.

Must a Police Officer Always Advise a Person of Their Miranda Rights Before Asking a Question?

No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave. Also, the questions being asked, even if in custody, must be the type of questions that could elicit an incriminating response. In other words, even a person arrested does not have to read their Miranda warnings prior to the officer asking them their name, address and other biographical information.

If I Am In Custody, How Do I Assert My Right To Remain Silent?

A suspect who has been arrested need only make a clear unambiguous statement requesting an attorney and all questioning must stop. If the police continue to question the suspect, the police have violated the suspect's 5th Amendment rights. Anything that the suspect says after the violation is inadmissible as evidence in court.

Can I Waive My Miranda Rights?

Yes. If you have been arrested, and you have been given your Miranda warning, then anything that you say can and will be used against you in court. "But the police officer said that if I talked, he would help me out!" This is something police officers say sometimes. Police officers have no control over what happens to you after you have been arrested. The determination of what you will be charged with, and how you will be sentenced, is up to the prosecutor and the presiding judge respectively. It is only the prosecutor who can negotiate with your attorney on what sentence you ultimately receive and even then, it is up to the judge whether to approve the sentencing agreement. (Plea bargain).

What To Do If You Are Questioned by The Police

If a police officer wants to stop and question you, generally whether or not you must comply depends on the circumstances and the reasons the officer has for questioning you. This section explores some of the common questions people have about their rights and responsibilities when approached by a law enforcement officer.

If An Officer Wants To Stop Me While I'm Walking On The Street And I Know I've Done Nothing Wrong, Should I Comply?

A police officer may interfere with your freedom of movement only if he has observed unusual activity suggesting that criminal activity is afoot and that you are involved. In other words, if he has a reasonable suspicion that a crime has been committed and you may have been involved. Even if the officer is mistaken, however, you do not have the right to keep walking. As long as the officer has a good faith belief in your connection to criminal activity, he is allowed to detain you. Stopping you is one thing, however. It doesn't mean that you must answer all of his questions. (See Miranda section).

If I Am Legally Stopped by a Police Officer On The Street, Can He Search Me?

Yes and no. a police officer is permitted to briefly frisk your outer clothing for weapons if the officer reasonably fears for his safety. An example might be if the officer sees a bulge in your jacket pocket that appears to be the outline of a gun or knife. If a frisk is later challenged in court as being unreasonable, a judge will usually uphold it.

A frisk is different than a search in that a search may be conducted for evidence of a crime or contraband (an illegal item), and may be much more intrusive than a frisk. An officer who frisks you may not search you unless he has good cause to believe that you committed a crime or that you're hiding an illegal item.

Can a Frisk Turn Into a Full-Blown Search?

When frisking a person for weapons, the police are attuned not only to the feel of possible weapons under clothing, but also to the feel of packaged drugs. Although a frisk may not turn up a weapon, it may turn up a suspicious package which the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. The lesson here is that a frisk often leads to a legal search. And if a search produces an illegal substance, it may result in an arrest.

Do I Have To Let An Officer Search Me or My Car If He Merely Asks My Permission?

No. An individual has a right NOT to consent to a search if the officer merely asks them if he or she would allow the officer to search their person or their car. a large number of drug related arrests occur after someone has given voluntary permission to officers to search them or their vehicle.

If I Am Questioned by a Police Officer After Being Stopped On The Street, Do I Have To Respond To The Questions?

The general rule is that you don't have to answer any questions that the police ask you. This rule comes from the Fifth Amendment to the U.S. Constitution, which protects you against self-incrimination. As with all rules, however, there is an exception. Many local and state governments have anti-loitering laws that require people to account for their presence if the police have a reasonable suspicion that they are loitering. Once the police have asked all of their questions about loitering, however, you don't have to answer any others -- such as questions about a crime in the neighborhood.