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Orlando Criminal Defense Lawyer > Blog > Drug Crime > When Can Florida Police Make a Misdemeanor Arrest Without a Warrant?

When Can Florida Police Make a Misdemeanor Arrest Without a Warrant?


Under Florida law, a police officer can arrest a suspect if that suspect committed a felony or misdemeanor in the officer’s presence. In other words, if an officer sees you committing what appears to be a crime, they do not have to get a warrant before placing you under arrest. Nor does the officer need a warrant to conduct a search incident to the arrest, i.e., the police may search you for weapons or other potential evidence.

Florida Appeals Court Tosses Drug Evidence Obtained During Illegal Search

But as the Florida Fourth District Court of Appeal recently explained, the warrantless arrest rule only applies when the “elements of the crime” occur in the officer’s presence. The police cannot base the arrest on what an eyewitness told them. And in this particular case, Carlo v. State, the appeals court threw out a criminal conviction because the police failed to follow that rule.

Here is what happened. A patrol officer was working a night shift. He received a dispatch call about a “man who allegedly had a knife” threatening the residents of a nearby apartment building. The officer arrived at the building within a few minutes. He observed a “small group of people” in the parking lot. One of those people said the man with the knife was inside the building at the top of a staircase.

The officer entered the building and observed a man–the defendant–talking to a woman. The officer did not see the defendant holding a knife or any other weapon. The officer drew his weapon and called for backup. After additional officers arrived, a senior officer asked the defendant if he had a gun. The defendant said he did. The officers took the defendant’s gun. They did not see a knife.

The defendant had a valid concealed carry permit for the gun. Nevertheless, the senior officer placed the defendant under arrest for “disorderly conduct” based on the earlier statements from witnesses that he’d been brandishing a knife. While searching the defendant for the arrest, officers found a bag of cocaine in the defendant’s pants.

Prosecutors subsequently charged the defendant with cocaine possession (but not disorderly conduct). Before the trial court, the defendant argued the search was illegal and the drugs should be suppressed. The trial court denied the motion, holding it was a valid Terry stop. (A Terry stop or a “stop and frisk” allows the police to briefly detain and search a person suspected of criminal activity based on reasonable suspicion.) The defendant then entered a no-contest plea to the drug charge but preserved his right to appeal.

On appeal, the Fourth District agreed with the defendant that the search was illegal. None of the police officers at the scene personally observed the defendant engaged in disorderly conduct, i.e., threatening people with a knife. There was therefore no legal basis to make a warrantless arrest. Nor was this a valid Terry stop. As previously noted, the defendant had already turned over his gun to the police. More importantly, the arresting officer testified that he found the drugs during a search incident to arrest and not a stop-and-frisk. So the state could not use the drugs recovered during the search as evidence against the defendant.

Contact the Joshi Law Firm Today

Police officers do not get to take shortcuts when it comes to a suspect’s constitutional rights. So if you have been arrested and need assistance in challenging the government’s case against you, it is imperative that you seek legal advice from a qualified Orlando drug crime lawyer. Contact the Joshi Law Firm, PA, today to schedule a free consultation.



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