|
Criminal
Michael Lowe brings his extensive experience
and aggressive defense strategies to task while
handling all state and federal criminal matters,
from initial investigations through trial and
appeal.
Mr. Lowe is often asked about how to handle
a police encounter. The following are recommendations
that are a useful guide in any police interaction.
WHAT ARE MY RIGHTS?
YOUR RIGHTS
The following information is intended as a
brief summation of your Constitutional rights
and is meant to offer helpful hints at how to
effectively assert and protect those rights within
the context of a police encounter. Of course,
this information is no substitute for consultation
with an experienced attorney.
The Fourth Amendment to the Bill of Rights
of the United States Constitution states:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched,
and the persons or things to be seized.
The Fifth Amendment reads, in part, "No
person shall be... compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without
due process of law...." These amendments
provide the foundation for the rights that protect
all U.S. Citizens from intrusive law enforcement
practices. If an officer violates your rights
then any evidence discovered as a result of that
violation must be suppressed from the evidence
at trial. This is accomplished by filing a motion
to suppress with the trial judge. Even if an
officer obtained a warrant prior to searching,
if that warrant is defective or not supported
by probable cause, then the evidence must be
suppressed.
Often times, after the fruits of an illegal
detention, interrogation or search are suppressed,
the government is left with very little evidence
and the charges are dismissed.
1. Don't Leave Contraband in Plain
View
Although law enforcement officers must obtain
a warrant before they can conduct a privacy-invading
search, any illicit material that can be plainly
seen by any person from a non-intrusive vantage
point is subject to confiscation. An arrest and
a valid warrant to search the rest of the area
is likely to ensue.
2. Never Consent
Many individuals arrested on drug charges could
have avoided that arrest by exercising their
Fourth Amendment rights. If a law enforcement
officer asks for your permission to search, it
is usually because: (1) there is not enough evidence
to obtain a search warrant; or (2) the officer
does not feel like going through the hassle of
obtaining a warrant. Law enforcement officers
are trained to intimidate people into consenting
to searches. If you do consent, you waive your
constitutional protection and the officers may
search and seize items without further authorization.
If officers find contraband, they will arrest
you.
If you do not consent to a
search, the officer must either release you
or detain you and attempt to get a warrant. The
fact that you refuse to consent does not give
the officer
grounds to obtain a warrant or further detain
you. An officer can obtain a search warrant only
from a judge or magistrate and only upon a showing
of "probable cause." Probable cause
requires an officer to articulate information
that would cause a reasonable person to believe
that a crime has been or is being committed and
that evidence of that involvement can be found
within the object of the search.
There are exceptions to the search warrant
requirement which permit an officer to search
an area without a warrant or consent under certain
circumstances. The important
thing for you to remember is
never to consent to a search or talk with an
officer if you want to preserve
your rights.
If an officer asks to search you or an area
belonging to you or over which you are authorized
to control, you should respond:
"I do not consent to a search of my [person,
baggage, purse, luggage, vehicle, house, blood,
etc.] I do not consent to this contact and do
not want to answer any questions. If I am not
under arrest, I would like to go now (or be left
alone)."
3. Don't Answer Questions Without Your
Attorney Present
Whether arrested or not, you should always
exercise the right to remain silent. Anything
you say to law enforcement officers, reporters,
cell mates, or even your friends can be used
as evidence against you. You have the right to
have an attorney present during questioning.
Your right to remain silent should always be
exercised.
4. Determining if You Can Leave
You may terminate an encounter with officers
unless you are being detained under police custody
or have been arrested. If you cannot tell whether
you may leave, you can ask officers, "Am
I under arrest or otherwise detained?" If
the answer is, "No," you
may leave.
An officer can temporarily detain you without
arresting you if he has "reasonable suspicion" that
you are involved in criminal activity. An officer
must be able at a later time to articulate to
a judge objective facts that would have caused
a reasonable person to suspect that you were
involved in criminal activity at the point that
you were detained.
Also, the officer may perform a "pat down" or "frisk" on
you during the detention if he has reasonable
suspicion that you are armed. However, an officer
may only reach into your pockets if he pats something
that feels like a weapon. When an officer attempts
to contact or question you, you should politely
say:
"I
do not consent to this contact and I do not want
to answer any questions. If I am not under arrest
I would like to go now (or be left alone)." If
arrested, you should again refuse a search of
any kind and refuse to answer any questions.
At this point you should insist on speaking to
an attorney as soon as possible.
5. Do Not Be Hostile; Do Not Physically
Resist
There are times when individuals politely assert
their rights and refuse to consent to a search
but the officers nonetheless proceed to detain,
search, or arrest them. In such cases, it is
important not to physically resist. Rather, you
should reassert your rights as outlined above
in section 2.
6. Informing on Others
The
police and prosecutors often try to pressure
individuals into providing information that would
lead to the arrest and conviction of others.
Threats and promises by police and prosecutors
should be viewed with caution and skepticism.
Decisions should only be made after consulting
with an experienced criminal defense attorney
and examining one's own conscience.
Dallas
Criminal Law Practice
- Drugs
- DWI & DUI
- Assault
- Sex
Crimes
- Appeals
- Felonies
- Misdemeanors
- Expunge
Records
- and
More
|
