By criminal defense attorney Nick Alcock
The police can’t simply knock on your door and force their way into your home. They can’t pull you over without a legitimate reason. Just because a person has a badge and a gun, they do not have complete power.
You have rights. You have the right to free speech. You have the right to move about the country and be free from unreasonable intrusions into your life. Furthermore, you have the right to speak with a criminal defense lawyer.
There is a basic constitutional rule that the police may not search a person or property without a warrant. The Supreme Court decision held in Katz v. United States that warrantless searches are, “per se unreasonable.” This means that the government has to overcome a burden to show that the search or arrest was legitimate.
Warrants must be “particular.” In other words, the government can’t go on a fishing expedition in your home. If the police are looking for a stolen car in your back yard, they can’t rifle through a person’s sock drawer looking for drugs. This is an overlooked issue, and many criminal defense attorneys do not closely examine warrants. If the property seized doesn’t match the type of property listed in the warrant, then that evidence may be suppressed. This, however, does not extend to obviously illegal contraband in plain view. If the police search a house for bank records and find a large cache of drugs on a coffee table, that evidence may be seized.
Most people think that when a police officer stops you on the street and pats you down for weapons, you are under arrest. Alas, you are not. The Supreme Court allows for limited “investigatory detentions.” These detentions are sort of a legal purgatory. You aren’t quite arrested and you aren’t quite free.
Criminal defense attorneys know that people who are stopped for these detentions are technically free to leave and not under arrest. Ask the person who is stopped, however, and they will probably tell you that they felt like they were being arrested.
Under Terry v. Ohio, the police have the ability to stop a person and pat them down for weapons. However, they can’t do this unless they have a “reasonable suspicion” that criminal activity is taking place. Criminal defense lawyers have argued for decades over which suspicions are reasonable and which are not. Here’s the bottom line, a cop can’t stop a person unless there is evidence of a crime or a civil traffic violation. It has to be more than a hunch. A cop can’t pull somebody over because they are driving down the street in a “high crime neighborhood.” There has to be something about the individual that justifies the detention.
Criminal defense attorneys have no simple test to determine when someone is really under arrest and not simply detained. However, as a criminal defense attorney, I have two factors that I look at closely. 1) Was physical force used? Was the individual handcuffed and physically placed somewhere? The higher the level of physical force, the more likely the person is under arrest. 2) How long was the person detained? The longer the duration of the detention, the more likely the person is under arrest. A pat down with a 45 second conversation is probably not an arrest. A person handcuffed and placed in a patrol vehicle for 45 minutes—under arrest.
You do not need to incriminate yourself.
People hear movie actors read, “You have the right to remain silent, etc.” But you really do have the right to remain silent. If you are in police custody, you don’t have to say a word. You can ask to speak with an attorney, at that’s it. The police cannot force you to speak and they don’t have the right to torture words out of you. For DUI cases, they even need to give you a phone and a phone book to call a criminal defense attorney prior to giving blood or breath.
Everyone worries whether or not asking to speak with an attorney is something that makes them look guilty. I say it makes you look like you know your rights. However, be aware of the fact that your invocation of rights must be plain. Make sure that you don’t say something like, “Do you think that I should call an attorney?” That is not an unambiguous request for an attorney. Instead, say, “I want to speak with an attorney now!”
If you have any other questions about your rights, please do not hesitate to contact our criminal defense attorneys at any time. We are ready to answer your questions free of charge. Call us now: 602-989-5000
Criminal defense attorney Nick Alcock