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Your Legal Rights: Remain Silent and Have An Attorney Present

arrested_180x120Investigatory and Accusatory Police Procedure

The U.S. Constitution, the Federal Rules and the federal court system’s interpretations of both provide guidance and procedural canons that law enforcement must follow. Failure to follow such procedure may result in the suppression of evidence or the release of an arrested suspect.

Substantive due process requires police to make criminal defendants aware of their rights prior to the defendant making any statements if the government intends to use those statements as evidence against the defendant. For example, law enforcement must ensure that the defendant understands the right to remain silent and the right to have an attorney present, as the Fifth and Sixth Amendments respectively provide. The defendant must knowingly, intelligently, and voluntarily waive those rights in order for the government to use any statements as evidence against the defendant. See Miranda v. Arizona, 384 U.S. 436 (1966).

Law enforcement also must abide by the confines of the Fourth Amendment, which prohibits the government from performing unreasonable searches and seizures. Courts ordinarily suppress evidence obtained during an unreasonable search or seizure and offered against the accused. See Mapp v. Ohio, 367 U.S. 643 (1961).

In order to avoid illegally searching or seizing the property of a suspect, law enforcement personnel typically obtain search warrants. To obtain a search warrant, law enforcement must show probable cause, must support the showing by oath or affirmation, and must describe in particularity the place they will search and the items they will seize. A judge can find probable cause only be examining the totality of the circumstances. Exceptions to the warrant requirement exist, however. These exceptions include searches made at or near the border; a search following a lawful arrest; a stop-and-frisk arrest; where the seized items are in plain view; where the articles are in an automobile; where the private individual makes the search; and under exigent circumstances, where the officer has probable cause for a search to find a crime or evidence relating to a crime (source)

The Fourteenth Amendment of the U.S. Constitution applies all substantive due process rights to state criminal defendants.

What Happens After You Are Arrested

Few people understand the criminal justice process. The following provides an overview of what you can expect if you are arrested in Florida.

Posting Bond

In most cases, you are entitled to a reasonable bond set by the court. Generally, this requires that you post a bond with the court. A bond is a binding agreement to pay money to the court in the event that you do not appear for your scheduled court dates. A bond is intended to ensure your appearance in the case. Your bond may either be a cash bond in smaller cases, or a surety bond in larger cases.

To post a surety bond, you will need the assistance of a bondsman who will file a bond with the court on your behalf, guaranteeing your appearance at all scheduled court dates. The bond is a conditional release, therefore, if you are arrested for subsequent offenses while you are out on bond, your original bond may be revoked by the court without notice. If you cannot afford to post the bond that is set by the court, it may be necessary to request a bond reduction hearing with the court. Depending upon the severity of the allegations made against you, the court may also impose other conditions of your pre-trial release, which could include many other restrictive conditions, such as electronic monitoring.

Magistrate Court

Once you are arrested and have been in custody for twenty-four hours or more, you are entitled to a magistrate hearing for determination of whether probable cause exists for your arrest. Probable cause for an arrest is facts and circumstances which would lead a reasonably prudent person to believe that a crime has been committed. If no probable cause is found for your arrest, you will be released on your own recognizance. In the majority of cases, probable cause is found by the magistrate judge and the bond amount is generally set by the Clerk of Courts, as a standard bond amount. If your arrest stems from an arrest warrant (a court order by a judge commanding your arrest), the judge signing the arrest warrant will set the bond amount, which is typically higher than a standard amount bond for the same offense.

Tracking Your Case

Within one to two days, the probable cause affidavit, or initial arrest report, on your case will find its way to the Clerk’s Office from the booking desk at the jail, and you will be randomly assigned a case number and judge. This information is computerized and viewable online at the Broward County Clerk of Courts Online Search. You can track certain information about your case, including court dates and case status from this web site.

Case Filing Decision

The State Attorney’s Office will generally begin to review the case filing package on your case within two weeks of your arrest and, if you are in custody, make a filing decision within 21 days of your arrest. If you are not in custody, the filing decision generally takes about 30 days, or longer. Once the State files what is known as an “Information” in your case, the Clerk’s Office will post your charges into the Clerk’s computer and you will be noticed with an arraignment date. You may also have changes to your bond on the same date, assuming there are added charges, or charges changed from those that you were originally arrested for by the police. This is common, because police do not always arrest you for the identical offenses that you are ultimately charged with by the State Attorney’s Office.

Pre-Filing Package

Before your charges are filed, you have an opportunity to provide the case filing Assistant State Attorney with additional materials, such as witness statements, documents, recordings, and papers for his or her consideration in determining what, if any, charges should be filed against you by the state of Florida. Often, supplemental materials filed by you will greatly reduce charges that are in the process of being filed against you. Therefore, the pre-filing package represents the first line of defense. If you do not file supplemental materials with the State Attorney’s Office, the case filing Assistant State Attorney will rely solely upon the case filing package of materials received from the police department, and may accept all allegations and statements contained in the police package as true. This could result in more serious charges being filed against you . Your defenses will rarely be set forth in the police reports used as the basis to arrest you. It is unfortunate that more defendants do not utilize the pre-filing package opportunity in an effort to have charges reduced.

The Defense Case

After arraignment in your case, you can file a “notice of discovery”, which is an official request for the state to file a discovery response listing witnesses, papers, and other specific evidence upon which the state will rely in attempting to prove its case against you. You are entitled to take discovery depositions, at your expense, from all material state’s witnesses in the preparation of your defense. The state will also provide you with copies of all relevant papers in your case, which may include witness statements, lab reports, photos, crime scene reports, and all other materials. You may also list defense witnesses and use defense exhibits in your case, provided that you give notice of these witnesses and materials to the state in advance. This is known as reciprocal discovery.

As your case progresses and as your attorney prepares your defense, pretrial motions may be filed on a variety of legal issues. As a general rule, the harder your attorney works on your case, the better your ultimate disposition in the case will be. Your attorney should examine the facts of your case to determine whether any or all of the charges filed against you can be dismissed and file the appropriate defensive motions for dismissal. The results achieved in every case depend upon a variety of factors, such as the nature of the charges, your prior arrests, the strength of the state’s case, the strength of the defense’s case, the judge, and the Assistant State Attorney assigned to your case. Being fully prepared for all possibilities is the key to a successful defense.

Final Disposition of Your Case

At some point you will need to decide whether you want to resolve your case by agreement with the state, to “plead open” to the mercy of the court, or to proceed to trial. To resolve your case by agreement with the State Attorney’s Office, your attorney and the Assistant State Attorney must come to a complete agreement regarding all the terms of an agreement for all of your pending charges. The court can accept or reject the terms of the agreement, but cannot modify the terms without your advance consent. If you decide to “plead open” to the mercy of the court after consulting with your attorney, the judge will decide what sentence will be imposed, after considering your “Criminal Punishment Code Sheet”, which lists your offenses in severity and assigns points for those offenses. If you decide to go to trial, you and your attorney should have some legal defense and be otherwise fully prepared. The fact that the state’s case against you is very weak is a defense in itself. Generally, if you do not have a defense that will present well in court, you should consider another option. There is nothing worse than going to trial unprepared.

Sentencing Issues and the Criminal Punishment Code

The Criminal Punishment Code Score Sheet is like a report card that the judge reviews at the time of sentencing. The score sheet tabulates a specific number of points per offense as set by Florida statute and scored at time of sentencing. If your total combined score is less than or equal to 44 points, the judge can impose a non-state prison sanction, which could mean county jail time of one year or less, house arrest, probation, a fine, payment of court costs, or even no punishment at all. If total points are greater than 44 points, the court will impose mandatory state prison time, unless the court finds a legal reason to depart downward, and is willing to depart downward from the minimum prison sentence set by the criminal punishment code. A downward sentence is a sentence below the minimum permissible sentence, based upon a legally permissible exception in sentencing laws. The judge does not have to grant a bona fide downward departure motion and it is completely within the court’s discretion to disregard it under the law. Your attorney can assist you in deciding what course of action is best, depending upon your charges and other factors unique to your case. No two cases are the same.

Free consultation 24/7: Call West Palm Beach criminal defense lawyer Andrew D. Stine, P.A. at (561) 832-1170. Se habla español.

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