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ARREST AND BOOKING – ANATOMY OF AN ARREST IN FLORIDA, PART III

December 30, 2010 Leave a comment

You’re Under Arrest…

If the authorities decide that they have probable cause in your case and decide to proceed with charges against you, they are going to have to get you into the courthouse in some fashion.  There are three ways that this can be accomplished:

1)     The police officer can give you a Notice to Appear for certain first or second degree misdemeanors or municipal ordinance violations.  This means that you will not be handcuffed and taken to jail and your booking photograph will not be displayed on your local Sheriff’s web site for the rest of your life.  Instead, the officer will hand you a notice with the date, time and location of your first court date, called an Arraignment.  You should hire an attorney if you have not already done so at this point.  At any rate, do not miss your court date or an arrest warrant, called a capias, will be issued for you by the judge.

2)     The prosecutor will get an arrest warrant for you, based upon a sworn affidavit and signed by a judge.  Any sheriff’s deputy or police officer in Florida will be able to arrest you once an arrest warrant is issued.  Typically the police in your town or county will be notified of the warrant and they will come to your residence or work place to take you into custody.  If the police have an arrest warrant, or a search warrant, they can come into your home without permission in order to grab you, as long as they have probable cause to believe you are in there.  They can even break the door down, if they have a warrant. As long as they have the correct address, they won’t have to pay to fix the door either.  If this ever happens to you, you should be cooperative with the police and remain silent, other than giving them your correct name and date of birth.  If you have an attorney, he or she will probably be able to arrange a time and place for you to turn yourself in so that you can arrange your affairs and not have to be dragged from the house in front of your family or from your workplace.  Sometimes an attorney will be able to arrange for you to turn yourself in at court and ask the judge for a reduced bond or release on recognizance (ROR) immediately.

3)     The police may feel that they have sufficient probable cause to arrest you without a warrant.  This is possible under Florida law if the crime involved is a felony, or a misdemeanor which allows for probable cause arrest under the Florida statutes.  In this case, the police officer will either come to your home, workplace, or other location where you can be found and place you in custody.  The officer may relay the probable cause to another police officer, who is allowed by law to then arrest you if you are found.  The police cannot enter your home in order to search for or arrest you without permission, a search or arrest warrant, or without some emergency condition leading to exigent circumstances requiring entry to a private residence.  However, you are best advised to cooperate with the police and above all, to get an attorney.  Hiding from an arrest warrant places you on fugitive status and has many negative implications, ranging from a life on the run, susceptibility to immediate arrest and detention anytime you are stopped for a minor traffic infraction, to an inability to receive Social Security benefits.

Turn Around and Put Your Hands Behind Your Back…

If you are ever placed under arrest you will likely hear those words and you will be handcuffed.  Most, if not all, police agencies have policies in place that require all persons placed into custody to be handcuffed, so try not to take it personally!  The law also allows the officers to search you and the area within your immediate presence and if illegal items or evidence is found, to keep it.  If you are being arrested by the officer or detective who is investigating your case, you may be read your Miranda rights and then asked questions about your case.  As before, your response should be to politely decline to answer those questions and ask for an attorney.

Eventually an arrested person will be taken to a jail and booked in.  Florida law requires that an arrested individual be taken to the jail in the same county where they were arrested.  If this is different than the county that issued the warrant, you will eventually be transported to the jail where your charges are from, unless you are able to bond out.   At the jail, you will go through the booking process where your fingerprints and photograph are taken and all the paperwork is completed.  Depending upon the time of day and the number of other people being booked in, the booking process can take up to several hours.  During this process the jail officers will usually be able to set a bond amount for your case.  If a criminal case involves extremely serious charges, or if there is some reason that the police are afraid that a person may not show up for court or is dangerous, a bond may not be set.  For the most minor offenses, some counties permit the jail personnel to give Release On Recognizance (ROR) to local residents.   While you are going through the booking process, you will be given opportunity to make telephone calls to relatives or friends, bail bondsmen and attorney’s offices.

Under the law of Florida, you must be taken before a judge within 24 hours of your arrest for your first appearance, also called an Advisory Hearing.  The purpose of this hearing is for the judge to examine a sworn statement by the police or prosecutor which gives the facts and laws supporting the arrest.  If the statement has sufficient facts to show that more likely than not a crime has been committed, then the judge will find that there is probable cause to keep you in jail.  The judge will also read you the charge and ask if you have an attorney.  If you do not and you meet the financial criteria to be declared indigent, then the judge will appoint a Public Defender to represent you.

If you don’t get ROR, you will have to sit in the jail for the rest of your case until you post your bond.  The bond is to insure that you will return for your court dates while your case is pending.  You may either post the full amount of the bond yourself (keep in mind that any future court fines, costs and restitution will be deducted from your cash bond before the rest is released to you at the end of your case), or you can call one of the many bail bondsmen in the Tampa Bay area to arrange for them to post the bond for you. The bail bondsmen generally charge 10 to 15% of the bond amount for this service, and sometimes may require that you sign an automobile or home over to them as collateral. Call several bondsmen and get quotes from them before deciding which to hire if the first one sounds too expensive.

After you have been released from jail, you need to find and hire an experienced criminal defense attorney. You can find my advice on how to go about locating, interviewing and hiring the best attorney for you in my blog articles, HOW DO YOU FIND AN ATTORNEY FOR YOUR CASE?; HOW DO YOU CHOOSE WHICH ATTORNEY? and DEMYSTIFYING LEGAL FEES.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

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INSUFFICIENT PROBABLE CAUSE – ANATOMY OF AN ARREST IN FLORIDA, PART II

December 22, 2010 Leave a comment

What Happens If They Don’t Have Enough Evidence to Arrest Me?

Assuming that the police have conducted their investigation and they still don’t believe they have probable cause to arrest anyone, they can follow one of the following procedures.  One, they can close their file and forget about it.  Or, they can leave the file open hoping to collect more evidence later.  Finally, they can refer the case to the prosecutor by scheduling what is called in Pinellas and Pasco Counties a “non-arrest investigation”.

It’s a Little Like the Game of ‘Hot Potato”

A non-arrest investigation simply means that the police are punting the case to the State Attorney’s Office for them to decide if there is enough evidence to warrant an arrest and prosecution.  The prosecutors will examine the evidence, often speaking to witnesses themselves, and eventually decide whether to drop the case or to proceed by obtaining an arrest warrant.  This is a crucial point in any criminal investigation where a good experienced criminal defense attorney can help greatly.  The time period during a State Attorney investigation, before the prosecution has made up their minds on whether to charge the crime or not is the easiest time to attempt to  convince them to drop the case.  Once the prosecution has decided to proceed with filing a charge with the court, it becomes their decision and they often feel bound to stick with it rather than admit that they made an error.  Once the prosecutor files the charge, the train has left the station and its much harder to stop it.

Communication is a Good Thing

Prosecutors tend to be a little more objective about the facts of a criminal case than police often are.  This is true for two reasons; first, prosecutors are trained attorneys and usually (not always!) understand the laws, the rules and our Constitutional protections better than non-attorney law enforcement officers.  Mainly, though, it is because the prosecutor is the one who ultimately gets left holding the bag if a weak case is charged.  It is the prosecutor who must go to court and argue the case and most prosecutors really don’t like to lose in court.  In many cases the prosecutor’s office will simply drop, or “no-file” the case and move on to bigger and better things.

So, during a non-arrest investigation an attorney who is familiar with the local prosecutor’s office and its practices can be very effective by speaking to the prosecutor handling your case and relaying any defenses, information, even excuses which you may have in an attempt to convince the prosecutor to either drop the case or at least file a lesser criminal charge than was referred by the police.

You should not attempt to speak to the prosecutor yourself.  Most prosecutors are reluctant to speak to suspects outside of court and off the record.  Even if the prosecutor is willing to speak with you, you must assume that you are being recorded or listened to by others on speaker phone and remember that everything you say can and will be used against you in court some day.

It Ain’t Over ‘Til Its Over

Whether the police or the prosecutor’s office decides to drop your case, remember that if you have not been arrested yet your case can be re-opened at anytime before the Statute of Limitations run out.  Statutes of Limitation vary in Florida depending upon the type of crime; some crimes may have very long limitations periods or may never expire.  The shortest Statute of Limitation in Florida is for a second degree misdemeanor and is for a period of one year.

However, if the prosecutor decides that they have enough evidence to allow a jury or judge to convict, they will often choose to file an Information (called an Indictment in Grand Jury cases) and proceed with prosecution.  Next article will discuss what happens then.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

The Law Office of Garry L. Potts
13575 58th Street North, Suite 126, Clearwater, Florida 33760
Telephone: 727-538-4166

Web site: www.GPottsLaw.com

Web site: Clearwater DUI Attorney



INVESTIGATION AND INTERVIEW – ANATOMY OF AN ARREST IN FLORIDA, PART I

December 14, 2010 Leave a comment

To be the target of a criminal investigation and subsequent arrest for criminal charges can be one of the most devastating, anxiety-producing events one can face in life.  Whether it results from a mistake or not, to find oneself in the total control and custody of the authorities with no freedom or privileges can be an overwhelming nightmare for those who do not understand the criminal justice system and have no idea what is going to happen once they are placed under arrest and handcuffed.  In my next few blog posts I am going to review the law and procedures regarding arrests and the initial stages of a criminal case in Florida, as followed in the Tampa Bay, Clearwater, St. Petersburg and Pasco County areas.

It All Starts With an Investigation

The beginning of a criminal case usually involves a report, or observation, of suspected criminal activity.  The law enforcement agency that receives information of a suspected crime and initiates an investigation into it will proceed by collecting evidence, if any, and speaking with the complaining victim, eye-witnesses and other people who may have knowledge of what occurred.  The investigator for the agency, usually your local police department, or county sheriff’s office, will be trying to determine if a crime occurred, if the person who committed the crime can be identified, and if there is enough evidence and testimony to arise to “probable cause” that the suspect committed a crime.  Probable cause is a legal requirement which the authorities must have before any arrest is justified.  In plain words, it means that the facts and circumstances must indicate more likely than not that a crime was committed by the person who is being arrested.  In order to get enough evidence to reach probable cause, the investigator often wants to interview the suspect.

Probable Cause Often Comes From Suspect Interviews

In some cases the law enforcement investigator will want to interview the accused suspect early in the investigation in order to hear both sides before making a decision about what occurred and who is to blame.  Sadly, more often than not in my career in criminal law, I have seen that the opposite is more common.  In other words, the investigator will speak to the initial complaining victims and their witnesses and then decide that a crime was committed and that the accused did it.  From then on the investigation’s purpose becomes an exercise in bolstering the evidence in order to reach probable cause and make the case more winnable for the prosecutor.  One technique that is often used in a criminal investigation is to finish the investigation, gathering all the available facts and evidence, and then try to interview the suspect.  In these cases, the goal in interviewing the suspect is not to objectively collect information in order to make a decision, but to attempt to trap the suspect in lies by pretending to know little or nothing about the complained of incident and allowing the suspect to “educate” them.  I have seen many times, in my 15 years as a prosecutor in the Pinellas and Pasco County State Attorney’s Office, that the police need to get statements from the suspect in order to have the probable cause necessary to make an arrest.

They Call Miranda a Warning for a Reason

If the investigator wishes to interview you about a crime you are a suspect of, you will get a call or visit from them.  Depending upon the circumstances of the interview, the famous “Miranda Warning” may or may not be required.  Contrary to popular opinions derived from television and movies, Miranda is not necessary to any arrest and will not be a reason for you to have your case dismissed.  Miranda warnings are only required if the police question you while you are in their custody and a reasonable person would not feel free to leave.  If the police are questioning you before you have been arrested, you volunteer and you are free to leave anytime you want to, no Miranda warning is necessary and everything you say can and will be used against you!  Anytime that law enforcement asks to speak to you about a criminal investigation that you believe you may be a suspect of, you should decline to speak to them and contact an attorney.  Always!  Depending upon the circumstances, your attorney may speak to the police on your behalf to relay information you may have. Your attorney may even offer to have you meet with the police and answer questions, but only in rare cases and only after spending much time discussing the matter with you beforehand.  Generally, when the police ask to speak with a suspect they have either made up their minds about probable cause and intend to make an arrest anyway; or they don’t have sufficient evidence for probable cause and hope that the suspect will supply probable cause by making some key admission during an interview.  Either way, it is highly unlikely that your interview with the police investigators will change the situation in your favor.  If the police come to the interview intending to arrest you, you are extremely unlikely to say anything that will change their minds – they will just assume that you are being untruthful to them.  And, if the police come to the interview not expecting to arrest you, the only thing that could change their minds would come out of your mouth during your statements to them.  Remember, you have the right to remain silent!  Although the investigators may try to make you feel as if you are hurting yourself, or appearing “guilty” by not speaking with them, just the opposite is true.  As I’ve stated, you can really only change your situation to the worse by making a statement to police.  Any information you have that could help your situation would be better communicated to the police by your attorney, whose words cannot be used against you later.

Next post I’ll discuss what happens to a criminal investigation if the police and prosecutors decide not to proceed with an arrest warrant and charges.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

The Law Office of Garry L. Potts
13575 58th Street North, Suite 126, Clearwater, Florida 33760
Telephone: 727-538-4166

Web site: www.GPottsLaw.com

Web site: Clearwater DUI Attorney



Categories: Arrests, Criminal Law