What Are Your Rights in a Criminal Investigation?

July 1, 2021 Don Pumphrey, Jr. Criminal Defense Social Share

If the po-po (police) are at the door or asking questions – or your friends are telling you cops are asking questions – assume you are under investigation for something illegal. Think about the worst case scenario. Don’t freak out and start calling your friends, “bros,” classmates, boyfriends, girlfriends, non-binary friends, or anyone who has advice. People who are not lawyers but act like them are known as “jailhouse lawyers,” and they are not for advice, but for comfort. Don’t ask what to do because you are anxious or nervous – and it “makes you feel better.” That’s a mistake, because everyone you speak to could become a witness against you.  

What if you haven’t, in your mind, done anything wrong? Assume you are falsely accused of something, as it’s better safe than sorry. An “ounce of prevention is worth a pound of cure.” Play it safe, and know your rights in a criminal investigation. Take it from an expert in criminal defense trial practice for a quarter of a century – know your rights and call someone experienced, trusted, and aggressive. Remain silent, to everyone, at every moment in any place at any time you are under investigation. Just do it. Know your right to an attorney – ask for a lawyer and don’t engage in conversation. Again, remain silent. 

In remaining silent, there is a limited exception for “identifying information.” So, other than giving your name, date of birth, Social Security number, and school identification or driver’s license (and don’t pull the fake driver’s license in your purse or wallet) – shut up, zip it, mouth closed. Ask for an attorney. Repeatedly. That is knowing your rights. Use your abilities – your brain and willpower – and exercise those rights. Now and always, be vigilant!

Many times people call me and don’t ever even have to pay for my advice. We evaluate the situation, and sometimes if necessary I meet with the person. The first thing I tell them is, you don’t need to hire me immediately. Keep my card and keep my cell phone number in your phone. If something happens or if someone starts questioning you, give me a call. You can even give them my card. Just remain silent. 

Many of these same people never need me and I never hear from them (there are even some that write 5-star Google Reviews in appreciation of the fact that a busy member of the bar took time to meet them, didn’t charge them, and gave excellent counsel). Sometimes, they just needed a referral to another type of attorney instead of an expert in criminal defense trial work. But either way, they know more about their rights and they leave the conversation understanding their rights in a criminal investigation. Most importantly, they have the confidence and ability to exercise those rights.

On the other hand, if you are one of the calls where I tell you to immediately load up and get to my office, you may be involved in something illegal. If that’s the case, we need to talk in person (not over a cell phone – where someone, anyone, can go to Radio Shack, drop a couple of Benjamins and buy some electronics to listen to everything that is discussed without you or I ever knowing). Face-to-face. These meetings require further evaluation, because much of the time, someone is caught up in something really bad. But sometimes, they are innocent and being accused of something really bad. Maybe they are just in a bad situation that involves allegations of drugs, allegations of rape, murder, manslaughter, hazing involving death, sexual battery or assault, hit-and-run involving death, or a false allegation of any of the preceding. 

Additionally, they may be involved in a Title IX student rights hearing, a DUI manslaughter case, principal to murder, or principal to any of the listed offenses. If you don’t know what a principal is, check out our article – because in Florida, this is a nasty statute. If someone aides, assists, counsels, or persuades someone to commit a criminal offense, they face the same charges as the actual perpetrator in Florida. It is a “life ruining statute,” a big, nasty statute sucking others in like the vortex of a Fujita 5 tornado. If you’re being investigated for any offense, it is vital to know your 4th, 5th and 6th Amendment rights under the U.S. Constitution.

Your Rights In A Criminal Investigation: 4th, 5th, and 6th Amendment 

Your rights in a criminal investigation are guaranteed by the Fourth, Fifth and Sixth Amendments in the U.S. Constitution. These amendments protect you against warrantless searches of your home or property, and preserve your rights to an attorney and right to remain silent. Since the nation’s inception, federal courts and courts in Florida have grappled with how to best protect the rights of those under criminal investigation from invasive and unconstitutional police and prosecutorial conduct.

Perhaps the most well-publicized case surrounding someone’s rights in a criminal investigation is the right to remain silent. This is protected under the 5th Amendment of the constitution, and prevents those who are arrested or questioned by the police from being forced to incriminate themselves.

One of the most famous cases on this issue is Miranda v. Arizona. In Miranda, a defendant confessed his involvement in a kidnapping and rape – but argued he was not aware of his right to an attorney (under the 6th Amendment) or right to remain silent to avoid self-incrimination when he spoke with police. In a landmark case, the U.S. Supreme Court ruled that anyone who is arrested by law enforcement must be informed of their rights in a Miranda warning – the first of these being their right to remain silent under the 5th Amendment.

“At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere.” Miranda v. Arizona, 384 U.S. 436 (1966)

In addition to someone’s right against self-incrimination in a criminal investigation, they also have a right to consult with an attorney under the 6th Amendment. Prior to a major 1963 U.S. Supreme Court case, not all those who were arrested or subject to criminal investigation had a right to an attorney. However, Gideon v. Wainwright, 372 U.S. 335 (1963) changed this by ruling an indigent Bay County, Florida man accused of a misdemeanor was entitled to representation by legal counsel under the 6th Amendment.

“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” Gideon v. Wainwright, 372 U.S. 335 (1963)

In addition to guaranteeing criminal defendants a right to an attorney, the Sixth Amendment also guarantees other rights to those who are the subject of a criminal investigation or are arrested, which include:

• The right to a jury trial
• The right to a speedy trial
• The right to be informed of the charges that are being brought against them
• The right to confront and cross-examine adverse witnesses (to prevent prosecutors from relying on out-of-court statements to build their case)
• The right to a public trial

In addition to these important 6th Amendment rights, those who are the subject of a criminal investigation also have rights under the 4th Amendment which are vital to understand. The 4th Amendment of the Constitution reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In contemporary parlance, this means that police do not have a right to search you, your home, or any other property of yours without either probable cause or obtaining a warrant. Which of these is required to perform a search or seize someone’s property depends on the circumstances. 

For searches of a person’s home, police need a warrant. Under Florida law and the 4th Amendment, a search of someone’s home without a warrant is assumed to be unconstitutional under any circumstances. As Florida’s 2nd District Court of Appeals wrote in Wheeler v. State (2007):

“A warrantless search of a home is per se unreasonable and thus unconstitutional under the Fourth Amendment. In fact, the United States Supreme Court has observed that such a search is the chief evil against which the Fourth Amendment is aimed. ‘At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Wheeler v. State, 956 So.2d 517 (Fla 2nd DCA 2007)

If officers come to your home and ask to search without a warrant in Florida, they are constitutionally prohibited from doing so under the 4th Amendment of the U.S. Constitution. However, in some situations, law enforcement only needs probable cause to conduct a search of your person or vehicle. An example of such a situation would be a “stop and frisk,” which is permitted by Florida law. However, performing a stop and frisk requires law enforcement to have a “reasonable articulable suspicion” of criminal activity being afoot under Florida Statutes Section 901.51. Stop and frisks were ruled to be permissible under the 4th Amendment under certain circumstances in the U.S. Supreme Court case Terry v. Ohio (1968).

Regarding searches of a vehicle, the law is constantly evolving. However, under what is referred to as the “automobile exception” to the 4th Amendment, officers do not always need a warrant to search a vehicle. Rather, they just need probable cause that there is contraband or evidence of criminal activity within the vehicle. As Florida’s 5th District Court of Appeal said in State v. Nowak, discussing a probable cause search of a vehicle:

“Applying this standard, as long as law enforcement had a practical, common-sense basis to conclude that Nowak’s car likely contained additional evidence of her alleged criminal conduct, they had probable cause to search the car.” State v. Nowak, 1. So.3d 2015 (Fla 5th DCA 2007)

Knowing your 4th, 5th and 6th Amendment rights in a criminal investigation is critical. If you believe your rights have been violated, Don Pumphrey Jr. and the attorneys at Pumphrey Law firm will fight for you. (850) 681-7777

Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for almost 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. has been qualified, accepted as an expert, and testified as an expert in the area of Criminal Defense Trial Work in Florida (State v. David Lee Green, Case No: 00-CF-016798, Hillsborough County, January 5th, 2011, Tampa, Florida; Honorable Susan Lee Sexton, Circuit Judge). 

Find a Criminal Defense Lawyer in Tallahassee, FL

As a former prosecutor, former state police officer and a life member of the Florida Association of Criminal Defense Lawyers, Don Pumphrey Jr. has observed that being arrested anywhere in Florida can be extremely stressful. Being charged and “formally charged” by information in Tallahassee or Leon County, Wakulla County, Jefferson County, Gadsden County, Quincy, Crawfordville, Florida State University, Florida State University Campus, Florida State University Student Code of Conduct, Tallahassee Community College, Florida A&M University, or facing first appearance in Leon County, can be life changing. Given the possibility of a lengthy jail or in some cases lengthy prison sentence and hefty financial penalties, it is important to contact an aggressive, trusted and experienced Tallahassee criminal defense attorney as soon as possible.

Don Pumphrey, Jr. and the attorneys at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

Page Updated July 10, 2024

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