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Your Rights Under Florida's Stop and Frisk Law

Posted by Larry Avallone | Mar 20, 2020 | 0 Comments

Your Rights Under Florida's Stop and Frisk Law

I handle many cases that involve stop and frisk and I'm often asked how the stop and frisk case law is handled in Volusia County courts. If you've been charged with a crime, you have rights under the United States and Florida Constitutions that limit the methods that law enforcement can use to obtain evidence. Florida's Stop and Frisk law gives law enforcement the power to perform searches without a warrant. The goal of search and frisk is to get dangerous criminals off the street by allowing for persons to be searched prior to an arrest. However, this police power is not unlimited. If the police exceed their stop and frisk authority, it can constitute a violation of your rights, and any evidence obtained cannot be used in court. Without sufficient evidence, the prosecution will need to drop or reduce the charges against you. If you're being charged with a crime based on what you believe was an illegal stop and frisk, it's important to hire an experienced Florida criminal defense attorney to defend you. 

Florida Stop and Frisk and the Fourth Amendment

The Fourth Amendment of the United States Constitution guarantees Americans the right to be free from unreasonable search and seizure by the government. This right includes a person's physical body, their home, and their vehicles. That's why in most cases it's necessary for law enforcement to get a search warrant.  Florida's stop and frisk law allows body searches (pat down) without a warrant under limited circumstances. A law enforcement officer can stop and temporarily detain a person if they reasonably believe they've committed a crime, are in the process of committing a crime, or are about to commit a crime. It's important to know that the officer is limited to searching only for evidence related to the specific crime suspected. For example, it would not be permissible to search for illegal drugs if the crime suspected is the theft of electronics. The legal standards regarding stop and frisk are ever changing and it is important to have an attorney who is up to date on the changes in the law.

The Limits of Temporary Detainment

Florida's Stop and Frisk Law, (Florida State Statute §901.151) states that a person may be temporarily detained to determine whether or not they have committed a crime, but they cannot be detained any longer than reasonably necessary. This means that most detentions should not last more than a few minutes unless enough evidence is obtained to justify an arrest. If a person is detained for an unreasonable amount of time, the search violates the Stop and Frisk law and the evidence obtained is not admissible in court to prove charges against the defendant. It is important to speak to an experienced Volusia County criminal attorney who can assess if there have been any violations of your constitutional rights.  

The Fruit of the Poison Tree

When a search does not properly conform to the limits of Florida's Stop and Frisk law, it is a violation of your Fourth Amendment rights and the evidence obtained is not admissible. Not only is the specific evidence inadmissible, but anything found as a result of it is also considered tainted. This concept is called the fruit of the poison tree. For example, if the illegal search turned up an address and a search of those premises led to obtaining illegal drugs, the drugs would not be admissible. There some exceptions to this basic rule that you should be aware of such as: 

  • Inevitable Discovery: The evidence is admissible if the prosecution can prove that the evidence would have been found anyway, without the illegal search.
  • Independent Source: The evidence was obtainable through a source that had nothing to do with the illegal search. 

Contact us anytime. We are always available to help you with your Volusia County Florida criminal case.  

About the Author

Larry Avallone

Larry Avallone is a Volusia County Florida based Board Certified Criminal Trial Attorney. He has been a Deputy Sheriff and a State Prosecutor and he exclusively practices criminal defense law.


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