Constitutional Rights

Criminal Procedure

The US Constitution in many instances applies only to US Citizens. However, in regards criminal constitutional rights, these rights apply to the people, meaning that not only US Citizens are afforded these core rights but any people despite their nationality.

The criminal justice system is mainly and heavily rooted in these essential rights with the idea of protecting one’s privacy, person, and the right to be free from governmental intrusion.

Moreover, the US Constitution applies to cases in Florida pursuant to the 14th Amendment of due process, and the 5th amendment due process clause.

In turn, the Florida constitution mirrors the language of the US Constitution and affords the people in Florida cases the same fundamental and constitutional rights.

4th Amendment- Searches and Seizures

The right to be secure in your property, person, papers, without governmental intrusion.

Search Warrant

The government however, can seize or search you if they have a search warrant. A search warrant is a document, were a law enforcement officer (LEO) in a sworn statement asks a judge to obtain a search warrant based on some allegations or information given to that particular LEO. If the Judge believes that there is probable cause that a criminal activity is been conducted and that is probable that you are the person conducting such criminality the judge will sign the warrant. Such warrant must be executed according to law. Is not a free-for-all blanket to search or seize you. It must be done at certain locations, for a determined period of time, and in fairness.

Searches without a Warrant

There are several instances where the government can search your or seize your belongings without a search warrant.

1. Search Incident to Lawful Arrest

When a law enforcement officer (LEO) makes a lawful arrest, the LEO may search both the person arrested and the area within the person’s immediate control. This exception is focused on officer safety and the preservation of evidence. The scope of the area “within the person’s immediate control” that an LEO may search is typically litigated and seen on a case by case analysis.

2. Plain View

An officer may seize items that are in plain view as long as the LEO has a right to be there. For example, if a LEO stops a person for not using the seat belt and when issuing a ticket to the driver the LEO sees, in plain view, what appear to be narcotics in the backseat of the car, the LEO can seize the suspected drugs without a warrant. Officers may even enhance their vision with the use of flashlights or binoculars. A LEO may not, however, illegally enter premises and then claim the plain view exception or items viewed inside the premises.

3. Consent

If a person consents to a search and the officer reasonably believes that person has the authority to consent to the search, no warrant is needed. The person consenting must have or reasonably appear to have authority to consent. For example, a parent can consent to a search of her minor child’s room. However, a minor child cannot validly consent to the search of her parent’s house. In addition, the consent must be voluntary and not the product of threats or undue promises. Consent searches can apply to both individuals and property.

4. Terry Stop & Frisk

If a police officer has reasonable suspicion of a crime, they may both stop a person to ask questions and conduct a brief pat-down search of the person to ensure officer safety. These Terry stops (named after the Supreme Court case) are sometimes a source of friction between the police and communities where stop-and-frisk is employed more aggressively.

5. Automobile Exception

In establishing the vehicle warrant exception the Supreme Court reasoned that the inherent mobility of automobiles would make it impractical for officers to always obtain a warrant prior to a search. In addition, the Court explained that people have a lesser expectation of privacy in their vehicles. Based on this reasoning, a warrantless search of a vehicle may be justified if an officer has probable cause to believe the vehicle contains contraband, controlled substances, or criminal evidence.

6. Hot Pursuit and Exigent Circumstances

If the police are pursuing a suspect and the suspect enters private property, then the police can continue the pursuit and enter the private property without stopping to obtain a warrant. Exigent circumstances are circumstances that require immediate action. For example, the police can forgo obtaining a warrant in an emergency in order to render aid to a person who needs it, to ensure public safety, or to preserve evidence that is in immediate danger of being removed or destroyed.

7. Other Exceptions

There are a number of other exceptions that are less often discussed but equally important. The exceptions below are largely based on a lesser expectation of privacy and administrative ease.

  • Caretaker Function: It is common practice for people to turn over to police property they find and for police to come across abandoned property.  In either case, such property can be searched without a warrant.
  • Impounded Vehicles: Impounded vehicles can be searched as part of standard police procedures to inventory and secure the vehicles and their contents.
  • Probation and Parole Searches: People who are probation, parole, or other form of supervised release can be subjected to warrantless administrative searches because they do not have the “absolute liberty” that other citizens enjoy.
  • School Searches: Students who are on school grounds or within school district care also have lower expectation of privacy permitting school officials to conduct warrantless searches.  The idea behind the looser standard in schools is that the students are younger and more vulnerable than the general population, they are already subject to numerous regulations on their behavior when they are in school and school officials have to maintain order in school.
  • Open Fields: There is a lesser expectation of privacy in premises that constitute open fields. Whether an area or structure constitutes an “open field” depends upon its proximity to the related home, the presence of an enclosure also surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to shield the area from view of passersby.
  • Border Searches: Border searches do not require a warrant, probable cause or suspicion of any kind.

The Exclusionary Rule

When the government violates the Fourth Amendment by conducting a warrantless search without a valid exception, the exclusionary rule may apply. Under the exclusionary rule any evidence obtained as a result of an unlawful search will not be permitted to be used at trial. As with all general rules, however, there are exceptions to the exclusionary rule.

Consult with your legal counsel immediately if law enforcement approaches you or your business to conduct a search or if you are asked for consent. Do not provide consent prior to speaking with counsel.

5th Amendment – Right against self incrimination, Miranda Warnings, Double Jeopardy, Felonies by Indictment

Right Against Self Incrimination

This is commonly referred to as the right to remain silent. However, the idea is that a criminal defendant, or a person who believes that may incriminate him or herself by providing a declaration can decide to remain silent and not cooperate with any investigation even in the courtroom setting. The underlying idea is that the American criminal justice system is rooted under the presumption of innocence, meaning that one is always presumed innocent until proven guilty beyond a reasonable doubt. So, is not the burden of the accused to speak or defend him or herself, since the system will automatically presume him or her innocent of any crime. Further, the system is required to explain members of the jury that if the defendant decides to exercise his or her right to remain silent, the jury cannot hold that against the defendant.

Miranda Warnings

The Miranda Warning, stem from this underlying fundamental right against self incrimination. Often times, before the decision of Miranda v. Arizona, people got stopped, arrested, or in a custodial setting, and were asked questions. Generally, when you are in a setting that you cannot control, you may not think through and may incriminate yourself. This is precisely the concept here. Again, stemming from the 5th amendment right against self incrimination, the US Supreme Court rule that when a person is under police or governmental custody and is questioned by the governmental officers such person must be first afforded the following warnings:

  • right to remain silent
  • anything you say can and will be used against you
  • right to speak with an attorney, and have the attorney present while you speak to the authorities
  • If you cannot afford a lawyer, one will be appointed to you before you answer any questions
  • and that you can decide to exercise any of these rights at any time and stop the questioning at any time pursuant to these rights.

Double Jeopardy

“nor any person should be subject for the same offense to be put twice in jeopardy of life or limb”

The idea that the State cannot prosecute you in more than one occasion for the same offense. There are 4 general ideas stemming from the Double Jeopardy clause:

  • prosecution after acquittal
  • multiple punishment, including prosecution after acquittal
  • prosecution after mistrial
  • prosecution in different states

In Florida, the right against a protection of the Double Jeopardy clause attaches once the Jury is sworn in, meaning that if the jury is not yet sworn in the state can drop the charges and re- try you again in another time maybe because they have more or better evidence now.

Felonies by Indictment

The right that serious offenses be charged only via indictment. An indictment is a charging document that is done and determined by a grand jury. A grand jury is a large pool of people who see, analyze, and evaluate evidence presented to them. Together, they determine whether to charge a person or not. The fact that serious felonies must be charged only by indictment gives an additional burden to the State to bring a case against an individual since it requires more work and harder to convince a group of people than just one State Attorney.

6th Amendment

  • Right to effective assistance of counsel
  • right to a speedy trial and public trial
  • right to a fair jury
  • right to confront witnesses

Again, since these are constitutional rights, they do apply not only in the state of Florida but throughout the United States.