A Florida Criminal Defense Attorney Explains How Legal Representation Can Protect You When Immigration and Criminal Cases Collide
Understanding When ICE Can Detain Someone
As a Florida Criminal Defense Attorney, I’ve represented clients who suddenly found themselves in the custody of Immigration and Customs Enforcement, often after being arrested for a local or state offense. ICE detainers are not criminal warrants, but rather administrative holds that request local law enforcement to keep someone in custody for up to 48 hours after they would otherwise be released. During that time, ICE may take the individual into immigration custody for deportation proceedings.
ICE’s authority comes from federal law under 8 U.S.C. § 1226(a) and 8 U.S.C. § 1357, which grant immigration officers the power to arrest and detain individuals they believe to be in the country unlawfully. However, local law enforcement in Florida must comply with the state’s Rule of Criminal Procedure 3.130 requiring that every person arrested be brought before a judge within 24 hours. This difference creates tension between state and federal procedures, and it is where legal defense becomes critical.
A private attorney can intervene by filing motions to challenge the legality of the ICE hold, arguing that local authorities have no independent authority to detain someone solely on an ICE request without a judicial warrant. In many cases, I’ve succeeded in getting clients released before ICE could assume custody because their state cases were dismissed or resolved favorably.
How Florida Law Interacts With ICE Detainers
Florida law enforcement agencies cooperate with ICE under the Florida Trust Act and the Federal Immigration and Nationality Act, but they cannot violate constitutional protections under the Fourth Amendment or Florida’s own Article I, Section 12 of the Florida Constitution, which protects against unreasonable searches and seizures.
When an ICE detainer is issued, it is not signed by a judge, and it lacks probable cause in the traditional criminal sense. This creates an opportunity for legal defense. As your Florida Criminal Defense Attorney, I would immediately evaluate whether your detention violates these protections. If so, I could petition the court for your release or file a writ of habeas corpus, arguing that you are being unlawfully held without proper judicial authorization.
Relevant Florida Statutes Affecting ICE Detainers
While immigration law is federal, certain Florida statutes come into play during ICE detainer situations, including:
Florida Statute § 901.15 – When arrest by officer without warrant is lawful:
“A law enforcement officer may arrest a person without a warrant when the officer has probable cause to believe that the person has committed a felony or misdemeanor.”
This statute does not authorize local police to hold someone for a federal civil immigration violation. Therefore, unless the person is accused of a state crime, continued detention for ICE is often legally questionable.
Florida Statute § 908.104 – Cooperation with federal immigration authorities:
“A law enforcement agency shall use best efforts to support the enforcement of federal immigration law.”
This law requires cooperation but does not grant power to violate constitutional rights or hold someone without a lawful basis. The key defense lies in showing that your detention exceeds state authority or that your underlying criminal case does not justify ICE involvement.
Why You Need a Private Attorney Before ICE Gets Involved
When ICE becomes aware of a criminal arrest, they often issue a detainer or place a “hold” through local jails. If your case results in a conviction, even for a misdemeanor like DUI or theft, it can trigger deportation proceedings or loss of immigration benefits. A private criminal defense attorney can negotiate for reduced charges that do not carry immigration consequences.
For example, instead of pleading to a “crime involving moral turpitude,” a plea might be structured to a lesser charge that avoids triggering ICE’s enforcement interest. Timing and precision matter. Once ICE takes custody, options become far more limited.
Private counsel also works in coordination with an immigration attorney to ensure your criminal case strategy aligns with your immigration defense. Public defenders are often excellent lawyers, but rarely have the time or resources to navigate the immigration consequences of criminal charges. My role is to protect both your immediate liberty and your long-term future in the United States.
How I Stopped ICE From Detaining a Client
Several years ago, I represented a client named Luis, a lawful permanent resident in Florida for over a decade. He was arrested for possession of a controlled substance after police found a small amount of prescription pills in his car. ICE placed a detainer on him immediately after his booking.
After reviewing the case, I discovered the traffic stop violated Florida Statute § 316.1939, which requires a lawful basis for any DUI or drug investigation. The officer had no probable cause for the stop. I filed a motion to suppress all evidence, and the court granted it, dismissing the criminal case.
Because the local charges were dropped, I filed a motion for immediate release before ICE could take custody. The jail initially refused, citing the ICE hold, but I presented a legal argument referencing Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015), which held that holding someone solely on an ICE detainer without judicial approval violates the Fourth Amendment. The jail released him the next day, and ICE never obtained custody. Luis retained his green card and his freedom.
Defenses That Can Prevent ICE Detention
- Illegal Arrest or Stop: If your underlying arrest was unlawful, all resulting proceedings, including ICE interest, may be dismissed.
- Lack of Probable Cause: ICE cannot lawfully detain you if there is no criminal basis for your custody.
- Violation of Miranda Rights: Statements obtained without proper advisement can be suppressed, weakening ICE’s case.
- Judicial Review Challenge: ICE detainers not signed by judges can be contested in state court.
- Bond Hearings and Motions to Stay: If detained, an attorney can request bond or argue that deportation should be stayed while your case is pending.
A private Florida Criminal Defense Attorney examines every constitutional and procedural weakness to keep ICE from using your state arrest as a pretext for detention.
Why Fighting the Underlying Criminal Case Is Crucial
ICE does not typically act unless there is a criminal trigger. If your charge is dismissed, reduced, or resolved without a conviction, you stand a far greater chance of avoiding immigration custody. Many offenses, such as simple possession, disorderly conduct, or minor theft, can be reduced to non-deportable offenses through negotiation.
Under Florida Statute § 948.01, judges can place a person on probation instead of issuing a conviction. By negotiating such outcomes, a defense attorney can prevent the criminal case from becoming the basis for ICE action. In other cases, we may pursue pretrial diversion programs that lead to dismissal after completion, thereby cutting off ICE involvement entirely.
How ICE Cooperation Policies Differ by County
Some Florida counties cooperate more fully with ICE than others. Miami-Dade and Collier Counties have historically complied with most ICE requests, while other counties are more cautious. A private attorney familiar with the specific county policies can act fast to secure your release before ICE officers arrive. Timing is critical, and local knowledge makes a real difference.
Your Rights During an ICE Hold or Interview
If ICE agents attempt to question you while you are in state custody, you have the right to remain silent and the right to an attorney. Anything you say may be used in immigration proceedings. Never sign any immigration documents without counsel present. An attorney can ensure that you do not unintentionally admit to facts that could be used to deport you.
Your defense attorney can also request copies of all ICE communications and ensure that the jail complies with federal and state law before turning you over. In some cases, I have successfully demanded release on bond when ICE failed to provide adequate documentation or probable cause.
Federal and Constitutional Protections
The Fourth Amendment to the U.S. Constitution protects against unreasonable seizures. Holding someone without a judicial warrant, even if requested by ICE, violates this protection. The Supremacy Clause gives federal law priority, but it does not eliminate constitutional safeguards. Florida courts must still ensure that any detention complies with constitutional standards.
As your Florida Criminal Defense Attorney, I work to enforce these protections, ensuring that ICE and local law enforcement respect due process. Every unlawful detention can be challenged through motions, hearings, and direct federal litigation if necessary.
Why You Should Not Handle This Alone
Once ICE is involved, every decision you make carries both criminal and immigration consequences. A plea that seems minor under state law may lead to deportation. Without private representation, you risk entering a plea that appears favorable but destroys your immigration status.
Private attorneys coordinate with immigration lawyers, prepare preemptive filings, and appear in hearings to contest detainers. They also maintain communication with family members and work to prevent surprise transfers to ICE facilities. Having your own defense lawyer ensures that your rights remain protected at every stage.
The Role Of Communication And Timing
I always stress that the moment you suspect ICE involvement, time is everything. The earlier I’m retained, the more I can do to stop the transfer. For example, I may be able to negotiate with the prosecutor to resolve your case before ICE files paperwork. Once you are moved to federal custody, local remedies become far more limited.
My goal is to secure your release from state custody as quickly as possible and prevent any record that could flag your case for immigration review.
Florida ICE Defense Attorney FAQs
Can an attorney stop ICE from detaining me after an arrest?
Yes, in many cases. An attorney can challenge the legal basis of your detention, argue that ICE lacks probable cause, and petition for your release under Florida or federal constitutional law. If your state charges are dropped or dismissed, ICE has less authority to take you into custody.
What if my local jail says they must hold me for ICE?
An attorney can challenge that claim. Florida jails may cooperate with ICE, but they cannot hold you indefinitely without a valid court order. If your hold exceeds 48 hours or lacks judicial approval, your lawyer can file a motion demanding release.
Do I have to talk to ICE officers if they question me?
No. You have the right to remain silent. Anything you say can be used in immigration proceedings. Politely ask to speak with your lawyer before answering any questions. An attorney can communicate with ICE on your behalf to avoid unintentional admissions.
What if I’m undocumented and get arrested in Florida?
You should contact a criminal defense attorney immediately. Many undocumented individuals are placed in ICE custody after even minor arrests. An attorney can fight to reduce or dismiss your charges, which often prevents ICE from moving forward with deportation.
Can my attorney work with an immigration lawyer?
Yes, and this is often the best approach. Criminal defense and immigration law overlap, and cooperation ensures both cases are handled strategically. A private Florida Criminal Defense Attorney will coordinate defense strategies that minimize both criminal penalties and immigration consequences.
If ICE takes me, can my attorney still help?
Yes. Even after ICE custody begins, your attorney can help with bond motions, deferred action requests, and appeals. In some cases, your criminal attorney can file a motion in state court to modify your record, which may aid your immigration defense.
What crimes make ICE more likely to detain me?
Offenses such as drug possession, theft, domestic violence, and DUI frequently draw ICE attention. However, even minor charges can cause ICE to act. The best defense is to secure immediate representation and fight for a dismissal or reduced charge.
Can ICE detain me if my case is still pending?
It’s possible, but an attorney can request that the local court prioritize your case or seek your release on bond. The goal is to resolve the criminal matter before ICE takes custody, as a pending state case complicates both proceedings.
What if I have U.S. citizen children or a long history in Florida?
Those factors can help. Your attorney can present them as mitigating circumstances during bond hearings or prosecutorial negotiations. They show community ties and reduce flight risk, improving your chance of remaining free while your case proceeds.
What should I do if ICE is already involved in my case?
Contact a private attorney immediately. Do not sign anything ICE provides or admit to immigration violations. Your lawyer can review all documents, challenge the legality of the detainer, and coordinate efforts with immigration counsel to protect your rights and status.
Call Musca Law For Immediate Legal Help
Florida Criminal Defense Attorney – Protect Your Rights Against ICE Detention
If you or a loved one is facing possible ICE detention after a criminal arrest, legal help is critical. The attorneys at Musca Law understand how Florida criminal cases intersect with immigration enforcement. We act quickly to challenge detainers, fight unlawful arrests, and negotiate reduced charges that protect your status and your future.
Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation
Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your free consultation. We have over 35 office locations throughout the state of Florida, including Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, and the Florida Panhandle.