Arrest and Your Rights
These days, it seems that there is a lot of confusion about how and when law enforcement may arrest someone, whether they may search them, their vehicle, or home, and the rights we possess before, during and after arrest. The answers to these questions are often the result of a lengthy analysis of the law and the facts of each circumstance.
The 4th Amendment to the United States Constitution and subsequent laws
The law establishing the protection of citizens from unreasonable search and seizure, and the source of all laws subsequently enacted on this issue, is the 4th Amendment to the United States Constitution. So important to citizens’ protection from our government, the verbatim language of the 4th Amendment is set forth as follows:
"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. Amendment IV, United States Constitution."
Although a proper legal analysis of a particular case can be complex, essentially, law enforcement may arrest someone; i) if they have detained a person and have “probable cause” to make the arrest; ii) they personally witness a crime being committed; or iii) they have obtained a signed Warrant for Arrest from a judge. In any of these 3 scenarios, law enforcement may legally initiate an arrest.
Similarly, law enforcement may search a person, premises or things with a Search Warrant signed by a judge or a grand jury. However, there are several exceptions that do not require a signed search warrant. For example, evidence can be seized: i) that is in “plain view;” ii) if found in a place where a perpetrator had no reasonable expectation of privacy; iii) if the perpetrator consented to the search; iv) during a search incident to an arrest; v) during the search of a vehicle if there was probable cause; and vi) if exigent circumstances require law enforcement to take action to prevent the destruction of evidence.
Miranda and your 5th and 6th Amendment Rights
Most of us are familiar with the concept that anyone being arrested “must be read their rights!” Unfortunately, for some people, their understanding of this concept was gained from watching one of the various police shows on television.
“Miranda Rights,” which they are commonly called, were recognized in a United States Supreme Court case called Miranda v. Arizona. This case established a requirement that police officers arresting a person must inform that person of their Constitutional rights according to the 5th and 6th Amendments to the United States Constitution. Those rights include: i) the right to remain silent; ii) the right to an attorney; iii) the right to the appointment of an attorney if they cannot afford one; and iv.) the right to have an attorney present during police interrogation. The wording most commonly used by law enforcement to “Mirandize” a person being arrested is:
"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?"
Although the exact wording used to Mirandize a person can vary, it’s acceptable as long as the rights are clearly conveyed, and the officer ensures that the person understands his or her rights.
Myths about Miranda Rights
The most common myths of Miranda Rights are as follows:
Myth No. 1: Statements after Miranda Rights are read are automatically excluded.
Wrong! The requirement to read Miranda Rights is simply to “inform” an arrested person of their rights. But an arrested person is not “required” to remain silent. Spontaneous or voluntary statements from an arrested person after being Mirandized can be used as evidence at the trial of their case.
Myth No. 2: All charges are dismissed if Miranda Rights are not read.
This is not true! Failure to inform a person of Miranda Rights can result in the exclusion of any or all evidence obtained from questioning a person. Lack of that evidence could result in a prosecutor’s decision not to pursue charges. Although an immediate dismissal of criminal charges is not mandated by a failure to Mirandize, it could be the ultimate result, due to the exclusion of some or all evidence.
Myth No. 3: Your right to remain silent does not begin until after an arrest.
Wrong! A person’s right to remain silent has no trigger; it is ever present. In other words, you can refuse to answer any questions from law enforcement at ANY time. You do NOT have to wait to be detained, arrested or Mirandized to exercise your 5th Amendment right against self-incrimination (right to remain silent).
If you are being investigated for a crime or if you are pulled over and questioned about a possible crime, you have the right to remain silent. However, rather than just refusing to answer questions, it is usually better to inform the officer that your attorney told you never to speak to law enforcement without talking to him first. This accomplished 2 things. First, you are exercising your right to remain silent and second your appearance is better both to the officer and to any jury in the event the detention is being videotaped.
If you have been arrested or accused of a crime, call us immediately. The laws in Texas are very complex and require a detailed analysis to properly plan a defense. Experienced and qualified legal counsel is a must! With over 29 years of experience and success, you can expect the best result possible with Todd E. Tkach, P.C. Our attorneys and staff are available to answer any questions that you may have either by phone or a free in office consultation. Our fees are reasonable and we accept all major credit and debit cards. Please, don’t wait! Call us now at 214-999-0595.