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Police in Florida Can Not Conduct Search Incident to Arrest for a Municipal Ordinance Violation

In Florida, the criminal laws are created by the state legislature. They are laws that prohibit certain conduct, and a violation of those laws can result in an arrest and jail time. Police are allowed to search a person after an arrest for a state crime. If the police find other or additional evidence of criminal activity during that search incident to an arrest, they can likely use that evidence against the defendant to support the arrest and/or add additional criminal charges. Cities in Florida can also enact laws that address certain conduct.  These laws can also come with penalties that include relatively short periods of time in jail.  For instance, fighting and loitering  are municipal ordinances in Jacksonville, and a violation of either ordinance can result in some jail time.

However, the same search and seizure rules do not apply to municipal ordinances as for state and federal crimes. In a recent case south of Jacksonville, Florida, police found the suspect in a city park after it closed at 11:00 p.m. The police officer arrested the suspect for being in the park after hours. This was not a state crime but a municipal ordinance violation. After the arrest, as they always do, the police officer searched the suspect. The police officer found a concealed handgun, cocaine and marijuana. The suspect was then charged with felony and misdemeanor crimes based on the evidence found after the municipal ordinance arrest.

The criminal defense lawyer filed a motion to suppress all of the evidence based on the search incident to a municipal ordinance arrest. The court noted that the police are not allowed to go through a full custodial arrest and search for a violation of a municipal ordinance, like they can for actual criminal law violations. They can “arrest” or detain a suspect for a brief period of time in order to write a ticket or issue a notice to appear in court at a later date. However, the suspect is not taken to jail. As a result, the police are not permitted to conduct a search incident to an arrest in these cases. Therefore, the search of the defendant was unreasonable, and the charges related to the gun, marijuana and cocaine were thrown out.