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Posted by John P. Rutkowski | Jun 23, 2022 | 0 Comments

Q: Can the police just stop me on the street for no reason?

A: The police can't stop you and search you in the street without reason. However, the police can come up to you and talk to you without reason. That is called a citizen/police encounter. You are permitted to refuse to speak with the police in a police/citizen encounter. However, if the police have reasonable suspicion or probable cause to believe that you committed a crime, or were about to commit a crime you could be subject to arrest for obstructing an investigation if you refuse to speak with them.

In Florida Obstruction is known as resisting an officer without violence and is a first-degree misdemeanor punishable by up to one (1) year in the county jail or one (1) year probation or a combination of both. If the police have reasonable suspicion or probable cause to believe a crime was committed or was about to be committed, they may not only speak with you they have a right to pat you down for weapons for safety reasons.

Q: Can the police just take my cell phone?

A: The police can take your cell phone when they're investigating a crime. If the cell phone is not part of the crime, they have no right to search it. However, if the cell phone is part of the crime, they will go and get a warrant and search it. Without a warrant, it would be an illegal search.

Q: How can I clear my criminal record?

A: If you're arrested and the charges are never formally filed, in Florida formal charges are filed by a document know as an Information or by a grand jury issuing a document know as an Indictment, in criminal traffic cases such as DUI or Reckless Driving the formal charging document could be the Traffic Citation and the arrested has no other convictions, they may file to have the case expunged or sealed. If the arrested is found not guilty of the alleged crime they may file to have the record expunged.

When an individual reaches age seventy (70) if they have had no other arrests or convictions, they may file to have their record expunged or sealed. There are certain crimes that the State does not permit expungement

Q: I'm guilty, have no defense, and just want to plead guilty. Should I hire an attorney?

A: You should have an attorney at all stages of a litigation. Even though you believe you're guilty, there are legal issues that you may not know about that your attorney could help you with. A suppression of evidence because of an illegal search, as a layperson you may not even recognize that. An attorney will recognize possible defenses and be able to help you.

Q: Is there any way to fight back if I'm arrested?

A: Whenever you're arrested, if there is a search involved, you should have an experienced criminal defense attorney look at the evidence to determine whether or not that search was legal. If it was not legal, your attorney can file a motion to suppress that evidence. When that evidence

Q: It's her word against mine, can I still be arrested?

A:   The police can charge you if they have probable cause to believe a crime was committed. If the police were told that you committed a certain crime and the police believe the individual making the statement, there's enough probable cause to make the arrest. In court, testimony alone is sufficient evidence for a conviction if believed by the trier of fact (judge or jury). He said, she said is enough to get a convicted in Florida.

Q: My girlfriend and I got into fight and I hit her and then we made up and are back together. Can she drop the charges?

A: She can request that the State not prosecute the case, however, once a crime is reported to the police and an arrest made the victim is actually becomes a witness/complainant and the state becomes the victim.

In domestic cases the State is hard press to drop the charges because of the political ramifications. It has been my experience that in order to have the charges dismissed the complainant has to go into the state attorney's office and provide a statement indicating they want the case dropped and the reason. The state attorney will consider the request, but the state is the final authority on the disposition of the case.

Keep in mind whenever an arrest is made that involves domestic violence a no contact order will be put in place at the accused, by the Judge at first appearance. The no contact order will usually allow a one-time visit to the home, if needed, so the accused may collect his/her belongings. The one-time visit must be made with law-enforcement present. Usually law-enforcement will only allow no more than fifteen minutes for the visit. Any other contact by the accused, in person or by third party, by any way of communication, will result in the arrest and new charge of violating the no contact order.

The complainant has no authority to allow the accused to have contact when the no contact order is in place and the accused will face a new charge. Permission by the complainant is no defense.

Q: The police want to talk to about a crime they think I committed. Should I talk to them?

A: No, you should not speak to police without an attorney present. The police will, a lot of times, ask you to, "Come in and talk to us, because you can help clear this up. You can clear your name." That translates into, "Help us shore up our case." They will bring you in, tell you that you are not under arrest and free to leave at any time. The interview is conducted and you leave.

A few days or even hours later the police show up at your house and arrest you. The police did not read you your rights before the previous interview so you believe anything you told them cannot be use in court.

Unfortunately, that is incorrect. Because you were told you were not under arrest and you were free to leave any anytime you were not in custody. Because you were not in custody the police had no duty to advise you of your rights all statements you made during the interview may be introduced into evidence against you.

About the Author

John P. Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-seven years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as an Assistant State Attorney in Florida before going in to private practice and representing good people in bad times who have been accused of criminal offenses.

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John P. Rutkowski, Attorney at Law, firm represents clients in the areas of Criminal Defense, DUI, BUI, Criminal & Civil Traffic Offenses. Contact Mr. Rutkowski today for a free telephone consultation.

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