Caught on Video? Police Still Might Not Be Able to Arrest You.

By: John Guidry

The police have lots of power, but they cannot arrest anyone for any reason—even though it may seem that way at times.

We’re going to take a dive today into the limits of police powers, and what is written below may come as a shock to most of you. Well, “shock” may be too strong of a word, but “interesting” is certainly an accurate description of today’s legal technicality.

If a police officer knows you’ve committed a misdemeanor crime—maybe because he watched video surveillance, or obtained sworn statements from eyewitnesses—may he then arrest you?

After all, he’s seen you commit a crime on video, or he’s interviewed the witnesses. Good enough for an arrest, right?

Well, not necessarily.

Was your arrest legal?

If the officer didn’t see the misdemeanor happen, the handcuffs might have been illegal. Call John today at (407) 423-1117.

The Legal Breakdown: H.R. v. State

Let’s dive into the real-life case of H.R. v. State, 307 So. 3d 814 (Fla. 3d DCA 2020).

• The Crime: H.R. was accused of falsely activating a fire alarm (a misdemeanor under Florida Statute 806.101).
• The Evidence: The officer did not see H.R. pull the alarm. Instead, he watched a surveillance video and got a sworn statement from a witness who identified H.R.
• The Arrest: Based on this evidence, the officer tried to arrest H.R.
• The Resistance: H.R. resisted without violence by flailing his arms and trying to get away.

The Result: H.R. was found guilty of both falsely activating the alarm and resisting an officer. But on appeal, the resisting charge was thrown out.

Why? Because of one of my favorite misdemeanor loopholes.

The “In the Presence” Rule

When it comes to misdemeanors, Florida Statute 901.15(1) is clear:

“A police officer may make a warrantless arrest for a misdemeanor only if it is committed in the officer’s presence.”

Did this officer see H.R. commit the offense? No.

• He saw a video.
• He heard a witness.
• But he did not see the crime happen with his own eyes.

Without a warrant signed by a judge, this officer had no business arresting H.R. for something he didn’t see himself. He had enough evidence to get a warrant, but he skipped that step.

Resisting an Illegal Arrest

So, why did the “Resisting” conviction get thrown out?

“Because the officer did not execute a lawful arrest… H.R. had the right to resist that arrest without offering violence.”

Basically, to convict someone of Resisting an Officer Without Violence, the State must prove the officer was engaged in the lawful execution of his duty. Since the arrest itself was illegal (because of the “in the presence” rule), the officer wasn’t acting lawfully. Therefore, H.R.’s flailing and pulling away—conduct that is usually 100% criminal—was perfectly legal in this specific context.

John’s Takeaways

• Know the Rule: Generally, if a cop didn’t see you do it, and it’s just a misdemeanor (like petit theft or criminal mischief), they can’t arrest you on the spot without a warrant. They can issue a “Notice to Appear” or send the case to the State Attorney, but they can’t take you to jail immediately.
• Know the Exceptions: There are big exceptions to this rule. Florida Statute 901.15 lists situations where an officer can arrest you for a misdemeanor they didn’t see, including:
  • Domestic Violence Battery
  • DUI (if investigating a crash)
  • Retail Theft (in some circumstances)
  • Carrying a Concealed Weapon
• Don’t Resist on the Street: While H.R. got lucky on appeal, resisting arrest is dangerous. You never know if an exception applies, and fighting the police physically often leads to “Resisting WITH Violence” charges, which are felonies. Fight the arrest in court, not on the sidewalk.

Illegal Arrest? Let’s Fight It.

If you were arrested for a misdemeanor the officer didn’t witness, we need to check if an exception actually applied. If not, the entire arrest—and any charges like resisting—could be invalid.

Call me at (407) 423-1117. Let’s enforce the rules.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.