Your favorite Clearwater criminal defense attorney is often asked whether one must obey on officer’s commands. In fact the first few minutes of any initial encounter you have with an officer may be the most important factor in determining whether you’re arrested. If you are not going to co-operate nor obey an officer’s commands, then it’s especially important that you remain calm, reasonable and courteous.
Here is a summary of how to deal with an officer’s requests or commands for information and the various factors that may come into play in determining how you should handle the situation.
|Florida Highway Patrol
The first consideration is how and where the confrontation with the police originates.
An officer knocking at your home door who has no reasonable suspicion that a crime has been committed has much less leeway to compel you to act than one who has reason to believe you are armed, dangerous and just left the scene of a murder.
While at home every American has a high expectation to privacy rights. This means if an officer attempts to compel a home owner to allow a search for evidence, he must have a search warrant or an arrest warrant or have an appropriate legal exception to not have the proper warrant.
One need never give consent to search if the officer does not have a search warrant. Yet in Florida courts may allow officers who claim to have suspicion that a crime has or is being committed by for example, smelling marijuana at the door of a home, to search without a warrant and to make arrests of the occupants without an arrest warrant.
If an officer initiates an arrest without an arrest warrant, must one obey the officer and allow the arrest? In Florida one can resist an illegal arrest only if no force or violence is used. In practice what this means is that one may tell the officer why one should not be arrested, but if force is used the officer may file a felony charge of resisting arrest with violence or battery on a law enforcement officer.
Many citizen and officer confrontations occur while a citizen is away from home. For example, when an officer stops a driver for an infraction such as speeding or improper lane change, then the officer has a right to demand a drivers license and proof of insurance. If there’s an indication of drugs, drinking, impairment or DUI, then the officer will investigate, but the driver need not obey the officer’s commands to take field sobriety test, HGN tests nor to give a breath sample.
If there was a car accident or a suspected DUI manslaughter then the officer has the further right under Florida law to conduct an accident investigation. Every Florida driver under the law has an obligation to provide sufficient information for the completion of that investigation. At the end of the accident investigation then the officer will conduct a criminal investigation, if necessary, at which time the driver need not co-operate.
If you are confronting an officer’s request or command, remember that your primary goal is not to be arrested. Treat the officer how you’d want to be treated. By being calm, courteous and reasonable your expectation will be that a good officer will be courteous, reasonable and fair to you in return; if he’s not immediately ask for a Tampa Bay criminal lawyer who will ensure that your rights are protected.
It’s unknown to Clearwater criminal lawyers if in the future Florida police may consider using deputized alligators in the same manner as they now use police dogs; but forewarned Floridians should think twice about the possible consequences of fleeing and eluding police officers even if the alligators are not deputized.
Anytime there is a fleeing and eluding, there’s a danger of major traffic crashes posed by officers who fail to use reasonable discretion during high speed chases for nonviolent offenses that continue to endanger lives in Tampa Bay.
Yet in Florida, there are other dangers lurking in the wilds for anyone who eludes an arrest, as demonstrated last night when a man being pursued by police scampered out of his vehicle to flee on foot. So far so good.
But according to press reports the hapless man came upon an Alligator. The suspect was later found by law enforcement recovering in the hospital from alligator bites on his face and arm.
Although it’s true that in Florida an illegal arrest can be lawfully resisted as long as no force or violence is used, a Tampa Bay defense lawyer’s advice is to pull your vehicle over in a safe manner as soon as possible upon seeing that an officer is attempting to initiate a stop; then if you stay in the driver’s seat you’ll be much less likely to be bitten by a Florida alligator.
What should you do if you find you have an active arrest warrant issued from another state? Here’s a question your Clearwater Criminal Defense Lawyer was recently asked:
I’m very scared of being arrested for something I didn’t do. What happens when another state issues an arrest warrant? I moved to Florida several years ago. I’ve just found out that there is a felony arrest warrant for Fraud or Scheme to Defraud in Atlanta, Georgia. From what I can figure out the warrant was issued from the company I used to work for and is a misunderstanding that I thought was already cleared up and I have the paperwork to prove it. Will Florida police arrest me for this? If I’m innocent can I resist the arrest? What should I do?
|Renoir, The Oarsmen, 1879
You may think it was just a ‘misunderstanding’ in Georgia, I hope for your sake you’re right, but a Georgia Judge signed an arrest warrant based on probable cause that you committed Felony Fraud in Georgia. You’ll need to hire an attorney in Georgia to persuade the prosecutor that the criminal case against you should be dismissed. Prosecutors in Georgia will not likely look into your case until after you turn yourself in, make a court appearance and only then will you be allowed to seek a bond.
If you choose not to turn yourself in to Georgia authorities, then you need to understand that at anytime you may be stopped by Tampa Bay Police and arrested in Florida as an arrest warrant from another state will be honored by Florida law enforcement.
Although it’s true that you can resist an unlawful arrest in Florida without using violence, a Florida arrest based on a warrant from Georgia will be deemed lawful and any attempt to resist the arrest will result in Florida criminal charges of resisting arrest without violence.
If you are arrested under the Georgia warrant in Florida, you will be kept in detention without a bond as you’ll be deemed a flight risk. Instead Florida will contact Georgia to determine if Georgia wants you to be extradited back to Georgia to face the Felony Fraud charge. In Florida you will be given an extradition hearing to determine if Georgia has the right bring you back and that you are the person whom Georgia seeks with matching fingerprints or DNA. At an extradition hearing a Clearwater Criminal Defense Attorney could argue any false identity issues, but will not be permitted to argue the underlying merits of the Felony Fraud or Scheme to Defraud case against you nor your innocence as those issues are for a Georgia Court to determine.
The smartest thing for you to do is not to wait for the arrest warrant to come to you, rather you must go to it by cleaning up the matter in Georgia immediately.
Criminal Defense Lawyers in Clearwater are often asked these questions: What should I do when a Florida Police Officer makes contact with me? How much information must I give, if any? And how many days will I get in jail if I steal the Officer’s hat?
|Even Rembrandt knew it’s all about the hat.
|As a rule of thumb when stopped by any officer (with or without his hat) who is readily identifiable as an officer, then you must at least correctly identify yourself to the officer. If you’re driving a vehicle you must also establish that you have a valid driver’s license and vehicle registration. If your goal is not to be arrested by Florida Police it’s also smart to be polite, reasonable and honest, not that you have to be under Florida law, except as to identity. You don’t have to consent to a search of your person or your vehicle, but in searching for weapons officers in Florida are allowed to frisk you (this is Florida after all).
But with the coming of that band of prosperous pirates set to lay siege to Tampa, known as the Republican convention, our local paper is warning that there’s likely to be some folks whose goal is to be placed under arrest while disrupting and protesting. And with that hope the police seem to be preparing for mass arrests in Tampa.
The Florida criminal justice system will welcome protestors with open arms as there exist enumerable ways to be branded as a criminal and arrested under our harsh Florida Criminal Statutes.
The quickest way to guarantee an arrest in Tampa Bay is to touch or strike an officer. Although Florida law is clear that an illegal arrest can be lawfully resisted, an illegal arrest can only be lawfully resisted without using force or violence against an officer. A mere unwanted touching of the officer that would otherwise be a misdemeanor Simple Battery will be charged as a felony Battery on a Law Enforcement Officer if the Defendant had knowledge that the victim was a Florida Police Officer.
You don’t have to answer a police officer’s questions, but you must show your driver’s license and registration when stopped in a car. While on the street, if a police officer has reason to believe you’re involved in criminal activity and asks you for identification, you must show ID, identify yourself, or face possible arrest. You cannot be arrested merely for refusing to provide proof of immigration status.
You don’t have to consent to any search of yourself, your property or your papers. Police may “pat-down” your clothing if they suspect a concealed weapon. Don’t resist, but make it clear that you don’t consent to any further search.
Keep your hands where police can see them. Don’t run. Don’t touch any police officer. Don’t resist even if you believe you’re innocent.
Ask if you are under arrest. If you are, you have a right to know why and you should ask to talk to a lawyer. Then tell the officer you wish to exercise your right to remain silent. If you are not under arrest, ask if you are free to leave.
If you witness a police action that you believe is unfair, don’t interfere, don’t complain on the scene or tell the police officers they’re wrong. Call 911 and document everything you witness. Write down officers’ names, badge and patrol car numbers.
Yet despite all that here’s some hope for the Constitutional Right of being able to protest at the Republican convention:
You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or parks. But, the government can impose “time, place and manner” restrictions on speech by requiring permits. These restrictions are generally permissible as long as they are reasonable and not based on content. The government cannot impose permit restrictions simply because it does not like the message of a certain speaker or group.
And try to avoid taking the Florida Officer’s hat, it makes them very angry; I’m not sure why. Hope your next police encounter ends in such a way that you don’t need help from a Clearwater Criminal Defense Attorney, but if you do call anytime.
A recent legal opinion in the 3rd DCA (Florida Appeals Court) overturned a conviction for Resisting Arrest Without Violence where it was found that the arresting officer was not engaged in the lawful execution of his legal duty when he told a juvenile to step out of the street for the juvenile’s safety.
When the juvenile refused to step out of the street the officer arrested him despite the officer having…. “no legal duty to insist on compliance and to enforce that insistence with arrest where the record shows that there were no circumstances warranting this,” which very likely is what your favorite Clearwater Defense Attorney might have said had he not been blissfully reading a mystery novel by flickering firelight at the time of this mishap or possibly simply dreaming of reading…Though this case is not binding in Tampa, Clearwater, St. Petersburg and Pinellas its reaffirmation of the English Common Law is well reasoned likely having a consistent result here.
At trial the officer testified as follows:
Q. Okay….Why did you initially tell him [the defendant] to get off the road?”
A. [Officer Kurless (think of his voice as coming from an impaired, nearly inebriated Sean Connery)]: Well for his safety, because cars be [sic] coming down the road and he could get hit, so we just told him to kind of step off to the side of the road.”
It’s ridiculous that to protect the child from harm the officer arrested him — placing him with criminals, destroying his reputation and ensuring that when the child grows up, for the rest of his life on any job application he’ll have to explain what happened so many years ago, because of a foolish overzealous officer who thru some horific leap of the space time continuum somehow envisions himself to be James Bond (see the above trial transcript excerpt). That juvenile needed a Pinellas Juvenile Defense Lawyer an attorney who can help any juvenile who has been charged with a crime in Pinellas County especially when it’s the officer who needs to be spanked. An arrest is among the worst things the government can do to one of its citizens, no arrest should ever be made unless there is good cause and certainly not to a juvenile…as a juvenile arrest has grave consequences.
The Court found that legal duty for an officer can arise in the following situations:
The case law provides that “legal duties” include (1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or 4) impeding officers’ undercover activities by acting as a “lookout” during the commission of a criminal act…Although this is not an exhaustive list, it is clear that there is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job…
And the Court’s final ruling (over a furious dissenting opinion written to purge all Juvenile Jaywalkers from our streets) states emphatically that the English Common Law is still valid in Florida even if it’s not in England:
“If an arrest is not lawful, then a defendant cannot be guilty of resisting it — the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence.”
|Clearwater Police are on the prowl…Be careful citizens.