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Written by Jon Scheib, a criminal defense attorney and contributor over at Paint the Moon
If you’ve watched a police TV show or movie in the last 40 years, you’ve heard, “You have the right to remain silent, anything you say can and will be used against you in a court of law…” as the police slap the cuffs on a suspect. This (or a similar variation) is followed by a number of other rights, such as the right to an attorney, and how one will be provided to you if you can’t afford one, etc.
Where do these things come from, and what protection do they actually provide you and me in a practical sense? Here we talk about some of the basics when it comes to your rights, and things you should know during any contact with law enforcement. Most of these issues end up being much more complex than we can hope to cover here, but this will hopefully give you a primer on knowing where you stand.
Before we even get started, here is the best piece of advice I can give you: DON’T TALK TO THE POLICE UNDER ANY CIRCUMSTANCES, ASK FOR A LAWYER AND KEEP YOUR MOUTH SHUT!!!! In my experience as a criminal defense attorney, people always think they can talk their way out of a situation and end up making things worse instead.
One caveat: being pulled over for a traffic violation may not be the best time to assert your rights, it may only escalate the situation. The best thing you can ever do is contact an attorney to get legal advice for any particular situation.
- Right to Remain Silent
The right to remain silent originates in the Fifth Amendment of the United States Constitution, which says, “No person…shall be compelled in any criminal case to be a witness against himself…”
For many years the interpretation of how this applied to U.S. citizens was confusing and a little murky, until the seminal United States Supreme Court case from 1966, Miranda v. Arizona. Two things you must remember for Miranda to apply: 1) you must be under arrest; 2) there must be an interrogation.
If you make voluntary statements or are not under arrest (ie: answering questions during a traffic stop or talking to store security), Miranda won’t help. Instead of trying to figure out whether or not you are under arrest, the easiest thing to do is TELL THE POLICE YOU DON’T WANT TO ANSWER QUESTIONS WITHOUT AN ATTORNEY PRESENT!
Last, if the police don’t read you your rights, it doesn’t mean your case gets thrown out! It might mean that any statements you’ve made can’t be used against you, but that doesn’t invalidate the arrest or charges.
1. Right to an Attorney
“You have the right to an attorney, and if you cannot afford an attorney one will be provided to you…” The Fifth and Sixth Amendment of the Constitution give a criminal defendant the right to counsel, but there are limitations that are important to know.
The right to have an attorney appointed if you can’t afford one only applies to criminal, not civil matters. Although the language of the Constitution seems straight forward, the U.S. Supreme Court did not clarify the issue until 1963 in the seminal case Gideon v. Wainwright. There may even be some limitations on criminal cases, depending on how serious the punishment is.
The right to an attorney is supposed to attach from the time of custodial interrogation until the end of trial. Basically, at all “critical stages of the proceeding.” Whether or not you hire a private attorney or are given one by the court, having a lawyer with you during the entire process is very important and this may be the most important thing you ever read: IF YOU ARE ARRESTED OR ANSWERING ANY QUESTIONS TO LAW ENFORCEMENT, ASK FOR AN ATTORNEY TO BE PRESENT!
2. Your Rights When Stopped By Law Enforcement
The courts generally give officers some leeway to stop you and ask you questions. Many jurisdictions make it a low level crime to refuse to give the police basic information such as your name or date of birth.
Beyond that, if the police ask you any questions it doesn’t mean you have to answer them! As always, assert your right to silence and tell the officers you won’t be answering any questions without an attorney there.
You can ask if you are under arrest or if you are free to leave. The police are usually given a short amount of time to ask the basics and check your information, but in order for them to hold you they must have a reasonable suspicion that you have committed some crime. Unless you ask them if you are free to leave, most courts will consider you speaking to them completely voluntary. If the police tell you that you’re not under arrest and are free to leave, leave. No reason to stick around to see what could go wrong.
If the police say you are not free to leave, DO NOT, UNDER ANY CIRCUMSTANCES, AGREE TO LET THE POLICE SEARCH YOU, YOUR HOME OR YOUR CAR!
Even if you think the police have no legal or justifiable reason to stop you, ask you questions, or search, do not argue or resist. The courts are the place to litigate whether or not the police are violating your constitutional rights, not on the street. The best thing you can do is be polite, clear and firm about the rights you are invoking.
3. Right to Refuse a Search Without a Warrant
The Fourth Amendment of the United States Constitution guarantees, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
If the police ask to search your car, your home, your office, or your person, you do not have to let them. IF LAW ENFORCEMENT ASKS YOU FOR PERMISSION TO SEARCH ANY OF THESE THINGS, TELL THEM NOT WITHOUT A WARRANT!
Even if the police have a warrant, it does not mean you have to answer any questions! Tell the police you won’t be answering any questions without an attorney, and that you are choosing to remain silent to any of their questions. Don’t interfere with any search. Ask if you can watch the search, and if you’re allowed to, you should.
Last thing to keep in mind: Even if the police say they will go get a warrant if you don’t agree to let them in and search, do not give consent! They may not succeed in getting a warrant. They may be bluffing. Either way, if you give them permission to search then they do not need a warrant.
4. DON’T EVER GIVE UP ANY OF THESE RIGHTS WITHOUT FIRST SPEAKING WITH AN ATTORNEY!
If you would like to read the “Know Your Rights 101” series in its entirety, with individual articles that go much more in-depth on each of these rights, you can check it out over in the Legal Tips section at Paint the Moon.
Any questions or comments? Do you have a particular experience with the police you’d like to share with the rest of us? Hit us up in the comments below!
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