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Your Constitution Rights

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In criminal law, your most important rights pertain to the Fourth, Fifth, and Sixth Amendments to the United States Constitution. Countless volumes of cases and legal analysis deal with each of these very significant Amendments. The following provides an brief introduction to each Amendment. 


The 4th Amendment protects you against unreasonable searches and seizures by the government. It states that “probable cause” is required to issue a warrant to search or arrest you. It is important to note that vast majority of searches and arrests by law enforcement occur without a warrant. But warrantless searches and arrests are often considered lawful because there are lots of exceptions to the warrant requirement.


For example, say during a routine traffic stop for speeding, an officer sees illegal drugs in plain view while standing outside your car, the officer does not need a warrant to search your car, seize the drugs, and arrest you. This is known as the "plain view" exception. 


Let's say the drugs were under your seat and not in plain view, but the officer asked you for consent to search your car and you agreed. This is known as the "consent" exception. Here, again, the officer can (and will) seize the drugs and arrest you without a search or arrest warrant. Your consent in this scenario provided an exception to the general requirement that law enforcement seek a warrant first before performing a search. (So, word to the wise: Don't consent to be searched.)

Attorneys file motions to suppress evidence to challenge the grounds on which officers performed a search or seizure. The typical scenario involves an officer finding and collecting a certain item of evidence without a warrant. The DA has the burden to justify the search by showing the judge the officer's actions fell within a recognized exception to the warrant requirement. If the DA fails, the judge suppresses the evidence, which often leads to the DA dismissing the case because he or she can no longer prove the charge(s). 

What law enforcement can and cannot search with our without a warrant, especially in the context of our frequently evolving complex modern digital world, is a rich topic of legal debate.


Lastly, the 4th Amendment also covers your right to promptly see a judge if arrested without a warrant. In felonies, that right includes a prompt determination by the judge that there was probable cause you committed the offense. Otherwise they have to release you from jail. 


The 5th Amendment pertains to your right against self-incrimination—in other words, your right to remain silent. If you're accused of a crime, you can choose not to testify and the government cannot use evidence of your statements made outside of court if they resulted from a violation of your "Miranda rights." 


Proper Miranda Warnings

Whether from TV or real-life experience, most people have heard of “Miranda rights.” If arrested, officers must "Mirandize" you before questioning or interrogating you any further. They are called “Miranda rights” in reference to Miranda v. Arizona, a 1966 U.S. Supreme Court case involving police interrogation after an arrest. Most officers have these rights committed to memory or will read from a card to ensure they don’t miss anything. The rights are fundamentally simple:


  1. You have the right to remain silent;

  2. Anything you say can be used against you in a court of law;

  3. You have the right to an attorney;

  4. If you cannot afford an attorney, one will be provided to you at no cost.


It doesn’t matter if the exact wording is slightly off or they get the order wrong. As long as they’ve touched all points in general, they’re covered. Once you indicate that you are exercising your right to remain silent, the questioning must stop immediately.

Proper Waiver of Rights

Surprisingly, a lot of folks still talk to law enforcement after they are arrested. Despite their right to remain silent and have an attorney present during questioning, they instead admit all kinds of incriminating things. There are a number of reasons why. For example, many are simply nervous. Also, many falsely believe that, by being honest, the officers will help them to get their charges dropped or reduced. When questioning you, officers are allowed to lie and make you believe things like that. They often pretend to know more than they do, or use trickery, etc.


Odds are if you talked after being Mirandized, your statements can come in as evidence against you at trial. But not always—for statements to be admissible, there must have been a proper waiver of rights. That requires the prosecutor to show that you not only understood your Miranda rights, but also voluntarily waived them. If a judge decided, for instance, that the officers exerted improper pressure, the statements (or "admissions") may be excluded. In other words, the jury will never hear about them. 


Admissions are not necessarily the same as confessions. Admissions are where an individual provides even the slightest nugget of information or evidence. Confessions are where an individual provides either a full written or recorded statement detailing the fact that he committed an offense. For instance, you can deny that you felt the effects of alcohol, but at the same time admit that you drank two beers. That's an admission to consuming some alcohol, not a confession that you were, in fact, drunk driving. 


Fun Fact: As a former prosecutor and, now as a criminal defense attorney, I have always noticed that the vast majority of DUI suspects tell officers that they’ve only had "two beers" or "two drinks." Ask any officer who performs DUI traffic stops regularly and he or she will agree. Folks seem to think that admitting "two beers" is the perfect response to sound honest while not admitting the full extent of what they drank. Instead, they end up sounding like a broken record to cops. 

Example of Your 5th Amendment Rights in Action

Let’s say you just got placed under arrest for DUI, handcuffed, and put in the back of a patrol vehicle. However, the arresting officer did not immediately read you your Miranda rights. Instead, after 30 minutes he asked you, “Why did you drive drunk tonight?” and, in response, you said: “I knew I shouldn’t have been driving; I had way too much to drink.” Later at your trial, the DA will put the arresting officer on the witness stand and ask him to repeat your statement to the jury.


Here, any decent defense attorney will seek to exclude your statement from evidence. You were arrested and then questioned in custody without being Mirandized yet. It doesn't matter that you weren't in jail; being handcuffed in the back of a patrol vehicle should qualify as "custody." Also, it doesn't matter that it was just one simple question. It still counts as interrogation while you were in custody, which requires Miranda warnings. Therefore, the judge should agree to exclude the statement. (That does not mean the judge will, but your attorney must present the argument.) In other words, here, the officer messed up. It happens all the time—not maliciously, necessarily. A skilled defense attorney must spot the mistakes and vigorously advocate to exclude from evidence the statements that resulted.


Lastly, the Sixth Amendment pertains to your fundamental procedural rights after you’ve been arrested and accused—to have a speedy trial, to have a lawyer, to have an impartial jury, to know the nature of the charges against you, and to cross-examine the witnesses that have accused you.

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