Most people do not realize the significance of their rights and privileges under the United States Constitution, as well as under the Constitution of the State in which they reside or happen to be in at the time of being stopped by police. State Constitutions often provide greater personal protection than the Federal Constitution, but are required by law to provide, at minimum, the rights guaranteed under the Federal Constitution.
Most importantly, we are all obligated to stop and comply with police requests for identification, or risk arrest for resisting arrest or interfering with a police officer’s duty. However, beyond that, the Constitution protects our right to remain silent and not be compelled to provide evidence against ourselves, our right to request an attorney before police questioning, and our right to be free from warrantless searches by law enforcement officers.
Many people think that by being cooperative with police beyond providing identification is the right thing to do. However, in my 25 years of experience as a criminal defense attorney, this has always proven to be the worst thing you can do because the police will always use any evidence obtained through your cooperation against you and will always file a case against you through the local, county or state prosecutors’ office.
Police are required to give a person “Miranda warnings” before interrogating them in a custodial situation. This means that police must advise an arrestee that: 1) you have the right to an attorney; 2) if you cannot afford an attorney, an attorney can be appointed to represent you; and 3) anything you say can and will be used against you in a court of law. A big issue in this situation is determining at what point an individual is considered to be in custody for legal purposes of necessitating that the police “Mirandize” you.
Technically, any time you are stopped by police and not free to leave, you are considered in police custody. You should always assert your constitutional rights and privileges when stopped by the police and request an attorney. If you do not do this, and you voluntarily provide information to the police (and sometimes just knowledge of criminal activity is deemed criminal), your attorney will have a very difficult time defending you against charges that otherwise might not have been proven, but for your own incriminating statement against yourself. Although it is sometimes possible to suppress a statement on grounds of undue coercion and police misconduct (often related to time in custody, deprivation of food, medication, health issues and toilet privileges), this is much harder to prove in court that a constitutional violation of Miranda rights—which means either failing to warn when you were clearly a criminal suspect and it was clear from the circumstances that they were arresting you and taking you into custody.
Additionally, permitting the police to search your car, home or personal belongings without a search warrant is deemed a consensual search, which results in legalizing any contraband or evidence found by the police to be used to prove that you committed a crime. If you do not consent to a search, even if the police threaten that they will just go get a warrant and wait with you until a warrant is issued, or even if the police state that you did consent when you did not, your attorney may be able to suppress the evidence by a pre-trial motion based on the grounds that the search was unconstitutional, the warrant was not properly issued, and any resulting evidence or witness statements should also be suppressed because of the initial constitutional violation (the latter ground is called the “fruit of the poisonous tree” doctrine).
If you are arrested and taken into custody, whether you assert or waive your Constitutional rights and privileges, after booking you, the police are required to permit you to make a telephone call. You can call a family member who can contact an attorney and bail bondsman for you. Make sure you advise them what police agency arrested you, and what police station you are in so they will be able to locate you to help you get out of jail by posting any required bail or bond. If bail is an issue, all jails are required to post instructions and phone numbers to determine if you are eligible for what is called “OR” release, which means to be released on your own recognizance, without the requirement of posting bail, and on your own promise to appear.
Being aware of these most basic Constitutional rights and privileges, which are guaranteed to every United States citizen, and knowing that you have the freedom in this country to exercise them when you are stopped by the police, is extremely important to your ability to defend yourself against any criminal charges that may be brought against you. While you may not legally be able to resist being stopped or arrested and taken into custody by the police in the first place, if you refuse to answer police questions beyond identification issues, if you request an attorney and if you refuse to permit the police to conduct a warrantless search of your property, you will make it much easier for your attorney to represent you in the event criminal charges are brought against you.
Sara Caplan is a criminal defense attorney, with extensive courtroom experience. She maintains excellent relationships with many judges, prosecutors and private attorneys in state and federal courts. For nearly 25 years, she has successfully litigated the defense of cases ranging from traffic infractions and misdemeanors to felonies involving murder, robbery, assault, domestic violence, drugs and sexual misconduct, conspiracy, fraud and taxation. She has represented many high profile and celebrity clients in music, film and sports, discretely and successfully. She also handles professional administrative hearings for licensed professionals. Ms. Caplan also handles immigration cases for temporary and permanent residency (visas, family and labor related cases)and has won many political asylum and Torture Convention cases in Immigration Court.
Law Office of Sara L. Caplan
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