Your Constitutional Rights

Detention:

The police are permitted to detain a person upon reasonable suspicion the person being detained is committing, has committed or is about to commit a crime. Reasonable suspicion exists if based up specific and articulable facts and the rational inferences drawn from those facts a reasonable officer would hold the same suspicion. Detention is generally permitted for the amount of time reasonably necessary to investigate and either confirm or dispel the suspicion. If the officer has a reasonable suspicion to stop a suspect and reason to believe the suspect is armed and dangerous then a limited protective search for concealed weapons is permitted. The frisk is justified in order to promote officer safety and as such is limited in scope to checking for weapons. If while "patting" for such weapons the officer finds contraband then that contraband will be seized and will likely be admissible at trial so long as the officer did not go beyond the limited scope of the frisk. If the officer exceeds the scope of the frisk and finds contraband, that contraband is likely to be inadmissible at any resulting trial. Incidentally, anything observed during and within the scope of a justified frisk is fair game in determining whether the police have probable cause to arrest.

Example: A police officer receives a tip from a person he knows on the street that a particular person is carrying an illegal handgun. The police officer has reasonable suspicion to stop this individual and to conduct a frisk. While patting down the outside of the suspects clothing the officer feels what feels like the butt end of the revolver. The officer reaches in and pulls out a tightly rolled up bag of marijuana. No weapon was found but the marijuana found amounts to probable cause to arrest the suspect for possession. The marijuana found is admissible at trial because it was found within the scope of the limited search.

Arrest:

Arrest is when a person is taken into custody by the police. Arrest must be predicated, or based, upon "probable cause" to believe that the person being arrested has committed or is committing a crime. Probable cause is determined based upon the totality of the circumstances and information known to the police officer taking into consideration such officers training and experience. Probable cause exists if the objective facts known to the arresting officer would persuade a reasonable mind to believe that criminal activity has occurred. It is not a "more likely than not" standard. That is, it is not necessary that the facts known to the officer would lead a reasonable mind to believe it more likely than not that criminal activity has occurred. The standard is less demanding and only requires a fair probability that criminal activity is occurring has occurred or will occur.

Custody + Interrogation = Miranda Warnings

Generally, a person is considered in custody for the purposes of the Miranda warnings when they are arrested.

Interrogation is generally the asking of pointed questions aimed at eliciting incriminating responses. In the Miranda context interrogation also encompasses actions that the police intend to elicit an incriminating response. Before the police may ask any such questions or perform any such acts the individual being questioned must be read the Miranda warnings. The Miranda Warnings are:

  1. the right to an attorney, if the person being taken into custody cannot afford an attorney then that person has a right to have an attorney appointed on her behalf;
  2. the right to have an attorney present during any questioning; 
  3. the right to remain silent, anything said can and likely will be used in court against the person being taken into custody.

Once the warnings are read the person being interrogated may voluntarily elect to waive those rights, including the right to speak with an attorney and have the attorney present during questioning, in which case the police may question the individual and any responses elicited will be admissible in evidence against the individual should a trial result. Failure to administer the Miranda warnings prior to interrogating an individual who is in custody is likely to result in the exclusion of those responses from the prosecution's case-in-chief at trial.

Arraignment

The first appearance before the court is generally known as the arraignment. A person who is arrested and not released from custody must be brought before a judicial authority for arraignment no later than the first court day following the person's arrest. If private counsel is not retained prior to the arraignment then a public defender is generally appointed at least for the purpose of arraignment. In the case of indigent persons, a public defender will generally be appointed to handle the entirety of the case. At the arraignment:

  • you are officially made aware of the charges against him,
  • you enter a plea of either guilty or not guilty to each of the charges and
  • your bail is argued and set.

What if your rights were violated?

If your constitutional rights were violated by the police while they were investigating a crime with which you are charged, it is my job to ensure that the exclusionary rule be applied in your favor. The exclusionary rule demands that any evidence that is the result an illegal search or seizure be excluded at the subsequent trial of the person who was illegally searched or seized. Since the evidence is to be excluded from your future trial I will fight to have any charges based on the illegally obtained evidence dismissed for lack of admissible evidence to support the charges. In other words, if the evidence that supports the charges against you was obtained in violation of your constitutional rights I will fight to have those charges dismissed.

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