|Bill of Rights|
Know and Exercise 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
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.
A “roach” in the ashtray, a pipe or baggie on the coffee table, or a
joint being smoked in public are common mistakes, which all too frequently
lead to arrests.
Many individuals arrested
on marijuana 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 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, cellmates, 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.
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
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
6. Informing on
The police and
prosecution 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