Constitutional Rights

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Constitutional Rights

constitutional rights in FloridaAmerican citizens are afforded Constitutional Rights by the United States Constitution and also their Florida State Constitution.

Unlawful Search and Seizure

It is important to hire an attorney who is well-versed in Constitutional Rights, as evidence can be suppressed, or excluded, when your Constitutional Rights have been violated. Florida Case law must be analyzed as well, particularly instances similar to the client’s, to support the attorney’s claim that evidence has been gained in violation of a person’s Constitutional Rights.

At Hamilton Law, EVERY case is analyzed to determine whether a person’s Constitutional Rights were violated. Under the exclusionary rule in Florida, evidence gained unlawfully will be suppressed. This means that even though there may be evidence of a crime, the Prosecutor will not be allowed to introduce it into evidence at trial, if it was the product of an unlawful search and seizure pursuant to the 4th Amendment of the Constitution. This law is meant to deter police from violating constitutional rights of individuals in the future.

Miranda Rights – The Right to Remain Silent

(Also known as the Right against Self-Incrimination—-(Fifth Amendment to the United States Constitution)

In cases where an individual is 1) in custody and 2) is interrogated by law enforcement, they must be read their Miranda rights. Miranda rights advise the individual that they have a right to speak to an attorney, to be appointed an attorney, and that anything they say can and will be used against them in a court of law. Incriminating statements given to law enforcement while in custody, must be given pursuant to a freely, knowing, and voluntary waiver of Miranda rights.

Whether an individual is in “custody” is a mixed question of law and fact. In some instances, it will be simple to prove to a court that an individual is in custody for purposes of Miranda. For example, the person is in the county jail and is approached by an arm of law enforcement seeking information. In other cases, the facts and circumstances are examined and compared to current case law to determine whether one is in fact, in “custody.” A common consideration is whether the individual felt free to leave. So even if a person was free to leave and not technically “in custody,” did the actions of law enforcement and the particular maturity of an individual lead that person to believe that they were in custody and “not free to leave”?

Acquiescence to Police Authority

In some instances, an assertion that an individual freely, knowingly and voluntarily waived their Miranda rights can be challenged by the fact that the person only spoke because they were afraid not to, or truly felt they had no choice to remain silent. They merely “acquiesced” to police authority. In Juvenile Defense cases, a challenge can be made under case law that because a child’s parents were not present, a confession or statement may be excluded.


Interrogation must be present in order to have a confession thrown out in violation of Miranda. If a person voluntarily offers information to law enforcement, this would not be excluded. The confession provided must be the result of an interrogating question. In other words, the police had to ask a question designed to elicit incriminating information. Incriminating information is anything that can be used to prove an individual’s guilt.

Constitutional Rights in DUI Cases

Generally in DUI cases, the Constitutional protection against unlawful search and seizure revolves around the stop and the resulting investigation.

The Stop

Many people may be surprised to learn that there are limits on the police’s right to stop your vehicle. Police must be able to articulate probable cause that a traffic infraction has occurred or reasonable suspicion of criminal activity in order to lawfully effectuate a traffic stop.

Traffic Infractions

Just because a police officer says you were swerving, for example, does not necessarily rise to the level of an infraction allowing a stop. The same goes for hitting a curb. If the police could stop someone every time they swerved a little, that would be unjust. People make slight errors in their driving all the time. They may be changing the radio or reaching behind them. Other traffic must be affected or endangered by the maneuver, or the police have to see a pattern that leads them to believe the driver may be ill or impaired. Many times DUI’s have been reduced to lesser charges, such as reckless driving, when there is a potential problem with the stop. If the stop is clearly a violation of constitutional rights under statute and case law, then the motion to suppress should be litigated to completion to achieve a full dismissal of all charges.

Reasonable Suspicion of Criminal Activity

Under current Florida case law, police officers cannot impede the movement of an individual by pulling them over when they have a “hunch” that criminal activity may be afoot (i.e. DUI). Objective, articulable factors must exist in order to justify any stop by law enforcement, whether and individual is in a vehicle or not.


For information on warrants, go to our Warrants page.

In Summation, it is always prudent to hire an experienced attorney whenever you are facing a criminal investigation or charges. Contact Hamilton Law today to schedule a free case evaluation.


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