Arrest and police interrogation: know your rights!

February 23, 2013 (Press-News.org) Arrest and police interrogation: know your rights!

Article provided by The Law Office of Matthew J. Davenport, P.A.
Visit us at http://www.mattdavenportlaw.com

The U.S. Constitution provides significant protections to people against abuses by law enforcement. Specifically, it sets parameters for arrests and police questioning. Violations of these parameters will undermine a criminal case brought by the government. Because the Constitution's protections are so important, it is critical that people understand their rights so they can assert them when necessary.

Fourth Amendment protections

The Fourth Amendment to the Constitution establishes that "[t]he 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 searched."

Police may arrest a person in public without a warrant if they have probable cause to believe a crime has been committed and the person they are arresting committed it. However, police must obtain a warrant based on probable cause to arrest a person in their home.

Fifth Amendment protections

Once a person is arrested and in police custody, the Fifth Amendment protects a person from being "compelled in any criminal case to be a witness against himself." This provision is generally referred to as the right against self-incrimination. The U.S. Supreme Court further established this right in 1966 in Arizona v. Miranda, when it ruled that before police may question a suspect in custody, law enforcement agents must appraise the person being questioned of their constitutional rights.

The person must be told that they have the right to remain silent and that anything they say can be used against them. The person has the right to stop the questioning by invoking their rights at any time during questioning. Moreover, a person must be told that they have the right to have an attorney present during the questioning. However, a person's Fifth Amendment rights do not "attach," or come into play, unless the person is in police custody and is being interrogated.

For the constitutional protections to apply, a person must be both in custody and under interrogation. Courts have defined "interrogation" as any question or comment by law enforcement that is reasonably likely to elicit any form of communication. During interrogation, police can go as far as lying about facts to get a person to speak if they have waived their right to remain silent. However, officers cannot use coercion, threats or promises to convince a person to confess to a crime.

It is important to know that custody does not necessarily mean in jail, in the back of a police car or even in handcuffs. A person is considered in custody if the police are depriving his or her freedom to move or act in any significant way or the circumstances are similar to a formal arrest. A court will determine, based on the totality of the circumstances, whether a person was in or out of custody at the time of the police questioning. If he or she were not in custody, no Miranda warnings were necessary before questioning.

You don't need to have been arrested to need legal representation

The idea behind the protections offered by the Fourth and Fifth Amendments is that you do not have to speak to police and they cannot force you to do so. In fact, little good comes of trying to tell your side of the story because anything you say can be used against you. However, if you really feel like you should make a statement to the police, your wisest course of action is to wait and first talk to an attorney. Because police have wide latitude in the deceptive tactics they can legally use to elicit information from you, you should have an attorney present when you meet with officers.

The Constitution provides significant protections against abuses of police power, especially when it comes to arrests and interrogations. Know your rights and do not be afraid to assert them.