Know Your Rights After an Arrest in Florida

By Summer Goldman, criminal defense attorney and former Pinellas County prosecutor

Most people learn their rights from television, and television gets a lot of it wrong. After 25 years of criminal law, first as a prosecutor and then on the defense side, these are the questions clients ask me most often after an arrest, and the straight answers.

They never read me my rights. Is my arrest invalid?

No, and in our experience this is the single most common misunderstanding we correct in a first meeting. Miranda warnings are not part of a lawful arrest. Police are required to give them only before a custodial interrogation, meaning you are in custody and they are asking questions designed to get an incriminating answer. Many arrests involve no questioning at all, so no warning is required.

What a Miranda violation does affect is your statements. If police questioned you in custody without the warning, what you said can usually be kept out of the State’s case. That matters, sometimes enormously, but it does not undo the arrest or the charge. Our police questioning page explains what counts as custody and what counts as interrogation.

Do I have to answer police questions?

No. The Fifth Amendment protects you from being made a witness against yourself, and that protection applies on the roadside, at your front door, and in an interview room. Two things people get wrong: silence alone is not enough, you need to say that you are not answering questions and that you want a lawyer; and “I didn’t do anything, so I’ll just explain” is how most of the statements we later fight to suppress get made. In our experience, the client who politely declines to answer and asks for a lawyer is in a far better position than the client who tries to talk the officer out of the arrest.

You do have to give your name and, if you are driving, your license, registration and insurance. Beyond that, “I’m not answering questions and I want a lawyer” is a complete sentence.

Can the police search me, my car, or my house?

The Fourth Amendment requires a warrant, or a recognized exception to the warrant requirement, before police can search. Most searches in criminal cases happen under an exception, and whether the exception actually applied is the question a motion to suppress decides. Our article on illegal search and seizure in Florida goes deeper. The common ones:

• Consent. If you agree to a search, the warrant question disappears. You are allowed to say no. Say it clearly and calmly, and do not physically interfere if they search anyway; the remedy is in court, not on the roadside.
• Search incident to arrest. After a lawful arrest, police can search you and the area within your immediate reach.
• Probable cause for a vehicle. Police can search a car without a warrant if they have probable cause to believe it contains evidence of a crime. The odor of marijuana used to settle this question by itself; since hemp became legal in Florida it has become a contested one, and we raise it. Our hemp law article covers the change.
• Plain view. Something an officer can see from where they are lawfully standing can be seized without a warrant.
• Your home. The home has the strongest protection. Absent consent, an emergency, or hot pursuit, police need a warrant to come inside. You do not have to open the door to talk, and you do not have to let them in without one.

Will I get a bond, and how fast?

In Florida, everyone arrested sees a judge within 24 hours at first appearance. The Florida Constitution gives you a right to pretrial release on reasonable conditions for nearly every charge; the exception is a capital or life felony where the proof of guilt is evident. In Pinellas County that hearing is held at the jail by video, and the judge sets bond from a schedule unless someone argues otherwise. The Eighth Amendment forbids excessive bail, but “excessive” is argued case by case, which is why having a lawyer at first appearance changes outcomes. See our pages on the booking and bond process and DUI arrests, which have their own deadlines.

How long can they take to try me?

The Sixth Amendment guarantees a speedy trial, and Florida puts numbers on it: once you are arrested, the State has 90 days to bring a misdemeanor to trial and 175 days for a felony, unless you waive the time or cause the delay. Most defendants waive speedy trial because preparing a defense takes longer than that, but the right belongs to you, and the decision to waive it should be made deliberately.

What else does the Sixth Amendment give me?

The right to a lawyer, including an appointed one if you cannot afford to hire counsel. The right to a jury. The right to know the charge, to confront the witnesses against you, and to compel witnesses to appear for you. In Florida you also get something most states do not: in felony cases the defense can take sworn depositions of the State’s witnesses before trial. In our experience that is one of the most powerful tools we have, because a case often looks different once the officer or the accuser has answered questions under oath.

Can they charge me again if the case is dropped?

Usually yes, within the statute of limitations. Double jeopardy attaches when the jury is sworn, or when the first witness is sworn in a trial before a judge. A case that is dropped or dismissed before that point can generally be refiled, which is one reason an early dismissal is not always the end of the matter and why we pay attention to how a case is resolved, not only whether it is.

What should I actually do if I’m arrested?

• Say that you are not answering questions and that you want a lawyer. Then stop talking, including to other people in the jail and on recorded phone lines.
• Do not consent to a search. Do not resist one.
• Do not explain, argue, or try to clear things up. There will be time for your side, and it will be told better by your lawyer.
• Do not post about it or message anyone about the facts.
• Use your phone call to reach a lawyer or someone who will. The hours before first appearance and the weeks before the filing decision are when a lawyer can do the most.

Speak With a Criminal Defense Lawyer

If you or someone in your family has been arrested or contacted by police anywhere in Tampa Bay, contact Goldman Wetzel or call (727) 828-3900 for a confidential consultation.