The Lawyers Group, Inc. presents the 2nd annual “Shields for Families” Toy Ride.
Dec. 13, 2014
Edited and approved by Lawrence Levy, ESQ.
Why you should not talk to the police.
Many people believe that if they are arrested and not “read their rights,” they can escape punishment. Not true. But if the police fail to read a suspect his or her Miranda rights, the prosecutor can’t use anything the suspect says as evidence against the suspect at trial. Of course, as with nearly all legal rules, there are exceptions. However, in almost every situation this true. There are a few simple rules that most defense attorneys always like to advise you of in an event of finding your self in such predicament; and they will help you understand what your rights are.
What Are Your Miranda Rights?
Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), a defendant’s rights consist of the familiar litany invoked by police immediately upon arresting a suspect:
- You have the right to remain silent.
- If you do say anything, what you say can be used against you in a court of law.
- You have the right to consult with a lawyer and have that lawyer present during any questioning.
- If you cannot afford a lawyer, one will be appointed for you if you so desire.
- If you choose to talk to the police officer, you have the right to stop the interview at any time.
When the Miranda Warning is Required ?
It doesn’t matter whether an interrogation occurs in a jail, at the scene of a crime, on a busy downtown street, or the middle of an open field: If a person is in custody (deprived of his or her freedom of action in any significant way), the police must read them their Miranda rights if they want to question the suspect and use the suspect’s answers as evidence at trial.
- If a person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. This exception most often comes up when the police stop someone on the street to question him or her about a recent crime or the person blurts out a confession before the police have an opportunity to deliver the warning.
People are often surprised to learn that if a person hasn’t yet been arrested, the police may question the person and use the answers in court without first providing the Miranda warning. The almost universal advice of defense attorneys is to keep that mouth tightly shut when being questioned after an arrest, at least until after consulting an attorney. Suspects all too frequently unwittingly reveal information that can later be used as evidence of their guilt.
Responding to Questions Before an Arrest
Does a person have to respond to police questions if he or she hasn’t been arrested? Generally, no. A police officer generally cannot arrest a person simply for failure to respond to questions.
The Fifth Amendment to the U.S. Constitution guarantees the “right of silence.” This means that unless a police officer has “probable cause” to make an arrest or a “reasonable suspicion” to conduct a “stop”, a person approached by the police officer has the legal right to refuse to answer questions. Indeed, a person who has reason to believe that he or she is a potential suspect should politely decline to answer any questions, at least until after consulting an attorney, however, there are several exceptions to this rule.
Loitering. The “right to silence” rule may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as “wandering about from place to place without apparent business, such that the person poses a threat to public safety.” Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person’s activities. If the person fails to comply, the officer can arrest the person for loitering.
Traffic stops. Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. An officer has the right to demand personal identification — usually a driver’s license and the vehicle registration. A driver’s refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.
Stop and Frisk Searches
A “stop and frisk” is when a police officer stops a person to question them and, for self-protection only, carries out a limited pat-down search for weapons (a “frisk”).
A police officer may stop and frisk a person if the officer has a reasonable suspicion that the person is engaged in criminal activity. This is an easier test for a police officer to meet than the “probable cause” that is required to make an arrest. In one recent U.S. Supreme Court case, the Court ruled that running away from the police is enough of a reason for the police to stop and frisk the defendant.
When frisking a person for weapons, police may feel a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person’s clothing. And, if a search produces an illegal substance, it may result in an arrest.
Consequences of Failure to Provide Miranda Warning
Without a Miranda warning, nothing a person says in response to a custodial questioning can be used as evidence against the person at his or her trial. In addition, under the “fruit of the poisonous tree” rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial.
If a suspect tells the police where a weapon is hidden and it turns out that the suspect provided this information in response to improper questioning, the police will not be able to use the weapon as evidence — unless the police can prove that they would have found the weapon without the suspect’s statements.
When Police Come Down Too Hard
Information that is voluntarily disclosed to a police officer (after the person has been properly warned) is generally admissible at trial. The key word is “voluntary.” Police officers are not allowed to use physical force or psychological coercion to get a suspect to talk to them. In addition, any evidence that the police obtain as the result of a coerced statement is equally inadmissible.
As always it is imperative that you consult with a lawyer before answering any questions by the police.
Edited and approved by
Lawrence Levy, ESQ. Senior Counsel
To advocate for the voiceless, to counsel, and navigate for the wronged; to defend the accused, and to seek justice for the victims. To prosecute, and impeach those in society that have victimized others in our communities by way of offending crimes against persons, or by their tortious act against civility. In a country where its very foundation is built, and erected by the rule of law within the constitution, or the statutes that frame, and hold together the contours of law and order in our society wherein our every movement is guided by laws, regulations, and statutes whether in business, or in penal code, and in our most fundamental institutions such as marriage, and equity, we educate, and train people to become attorneys at law. Henceforth, it is the ability of the legal scholars, counselors, and lawyers to seek justice, to right the wronged, and to set a pathway for due process for every citizen to appreciate, and draw upon in all aspects of life.
I believe lawyers can speak for those who cannot, and otherwise stay silent. Lawyers can challenge the establishment, and remedy the damaged. Lawyers can outlay and represent what rights, and responsibilities we protrude in society. Often, disputes are resolved between disgruntled, and displeased private citizens wherein their controversy is mediated by judges, and lawyers, and arbitrators. I believe possessing such power, and wisdom, and knowledge to bring people to their common grounds from the brinks of disharmony is humbling. Litigating for those who find themselves in the web of legal predicament, and therefrom can lose their freedom, or liberty, or suffer the damages of being victimized by a defendant, a perpetrator, a culprit, or the government; is the art that lawyers find exhilarating.
The mission is to, in a fair, accessible, effective and efficient manner, resolve disputes arising under the law, and to interpret, and make certain that through legal representation; that the law is applied consistently, impartially, and independently, and protect, preserve, and guarantee all those enumerated rights, and liberties that our constitution has guaranteed.
It is in such light that the answer becomes more illuminated. Why do we need lawyers. !!!
By: Lawrence Levy, ESQ.
U.S. SUPREME COURT TO HEAR CELL PHONE PRIVACY CASE.
The U.S. Supreme Court has agreed to hear arguments on whether police can search an arrested suspect’s cell phone without a warrant. The high court is taking up two cases, (the cases are Riley v. California, 13-132 and U.S. v. Wurie, 13-212) one from California, and one from Massachusetts arising from criminal prosecutions that used evidence obtained without a warrant. The high court will weigh into how to apply older court precedent, which allows police to search items carried by a defendant at the time of an arrest. However Cell phones have evolved from devices used exclusively to make calls into gadgets that now contain a treasure trove of personal information about the owner.
The question before the U.S. supreme court justices is whether a search for such information after a defendant is arrested violates the Fourth Amendment of the U.S. Constitution, which bans unreasonable searches. The outcome would determine whether prosecutors in such circumstances could submit such obtained information as evidence in court. In light of the fact that almost everyone now carries a smartphone, and the judicial, and jurisdictional confusion, contradictory over whether the police can search the digital content of cell phones, it is imperative that the high court resolve the confusion, and settle this issue.
Under current court precedent, police are allowed to search a defendant at the time of an arrest without a warrant, predominately to ensure the defendant is not armed and to secure evidence that could otherwise be destroyed. In the past, it has generally been applied to such items as wallets, address booklets, or notebooks items. In the California case the defendant was convicted of three charges relating to a 2009 incident in San Diego in which shots were fired at an occupied vehicle. Prosecutors were able to link the defendant to the crime due to photographs on his smartphone that showed him posing in front of a car similar to one seen at the crime scene. The police obtained the photographs, and videos that showed the defendant making gang related comments, which was shown to the jury at the trial.
The police searched the phone after pulling over the defendant’s vehicle for having expired tags 20 days after the shooting. The defendant’s convictions were upheld by a state appeals court in California.
In the Massachusetts case, it was the federal government that appealed after an appeals court threw out two of three drugs and firearms counts on which the defendant had been convicted by a jury. The Boston based 1st U.S. Circuit Court of Appeals said that police could not search the defendant’s phone without a warrant after an arrest for suspected drug dealer, wherein the police used the information that they obtained from the defendant’s cell phone to find the location of drugs, and firearms.
In both cases, the Fourth Amendment of the U.S. Constitution is at the core of the issues. U.S. supreme court will hear oral arguments in April, and will decide, and settle the judiciary confusion by June of 2014, where they will issue their final ruling on whether warrantless searches of cell phones are permitted, or police will be required to secure a warrant prior to searching a defendant’s cell phone after an arrest.
In the current time, and climate where it seems like our privacy, and the essence of what ensures, and secures our constitutional rights, have diminished in gradual pieces; as we contemplate the balance of security vs. privacy, perhaps the supreme court will confirm, and thereby steer our trust back into the rule of law.
By: Lawrence Levy, ESQ. Senior Counsel
ANNUAL CHRISTMAS CHARITY TOY DRIVE
The Lawyers Group, Inc. is proud to have successfully completed another year of charity toy drive on Saturday 14th, 2013. We are excited to report that with the help, and generousity of our friends, and colleagues, The Lawyers Group, Inc. organized, and delivered hundreds of toys to a local childrens shelter. We were honored to be able to bring joy, and happiness to those less fortunate during these festive times, and the current Christmas holidays.
On behalf of The Lawyers Group, Inc., we want to thank the staff, and volunteers at the City of Compton Shelter for giving us the opportunity to be a part of the wonderful work that they do each and everyday, and we were grateful, and humbled to be amongst so many amazing children. The act of giving is the ultimate deed for which each and all of us can realize without expectation, and bated breath.
We wish all of you a very merry Christmas, and a happy, safe, and prosperous new year.
By: Lawrence Levy, ESQ. Senior Counsel