The police and other law enforcement must comply with the bill of rights when investigating and arresting anyone suspected of crimes. If they fail to follow these constitutional rules, an experienced criminal defense attorney may be able to get physical evidence and incriminating statements suppressed that could otherwise be used against you.
Searches must have probable cause
All arrests and searches of places and people must be supported by probable cause. Less intrusive seizures, such as traffic stops, must be based on a reasonable belief that a crime or other violation of law has been committed.
In other words, you cannot be stopped by police for no reason and you cannot be searched unless the officer has probable cause to do so, except when you give the officer consent to search your person, home, or vehicle.
Don’t consent to a police search
The best practice is to never give an officer permission to conduct a search. Without consent, the officer must conduct an investigation which has certain restrictions. Often, the officer must get a search warrant before conducting a search, though there are several exceptions to the warrant requirement.
Search warrants not always required
In general, searches require a warrant issued by a magistrate. However, over the years, the Supreme Court has carved out several police-friendly exceptions to this rule. Probable cause is always required, but a warrant is not.
For example, NO warrant is required:
• search your vehicle when the officer smells the odor of marijuana.
• when evidence of a crime is in plain view, such as on the seat of your car.
• for an officer to search your person once you are validly arrested. As an example, if you are arrested for DWI, the officer can then search all of your pockets and personal effects for evidence of any crime.
When warrants are required
Search warrants are almost always required to enter someone’s home or residence. The most common exception to this is when an occupant gives consent for officers to enter. It is best to politely decline an officer’s request to enter your home when you or someone else present is the target of an investigation. A warrant is also required to search your cell phone unless the officer has consent. Use caution when allowing an officer to look through your phone.
Warrants are typically not required for an officer to make an arrest. An officer may arrest someone without a warrant for any felony and any other crime committed in the officer’s presence. Of course, probable cause to arrest must always exist.
“Never attend a police interview without a lawyer. If you find yourself under interrogation, always immediately request an attorney. When you do so, police cannot continue the questioning.”
What is probable cause?
Probable cause is not a high standard. If thinking of it in terms of a scale from 1 to 100, with 100 being absolute certainty, the officer only needs 30-40% certainty to have probable cause. With searches, probable cause may result from the officer simply smelling the odor of marijuana. With arrests, probable cause may be based on witness or informant reports to police and other hearsay, as long as there is some indication of reliability.
Courts are very deferential to police determinations of probable cause. As such, it is important to know that you have the right to refuse consent, even when the police make it feel like you have no other option.
When an officer does not comply
But when police lack probable cause or did not comply with the warrant requirement, an attorney can file and argue a motion to suppress and dismiss. If the judge agrees that the police did not comply with the constitution, evidence seized from you may not be used against you at trial. Or if you were invalidly arrested without probable cause, the charge against you may be dismissed entirely.
Police questioning and Miranda Rights
Clients often complain that an officer did not read them their rights. But often times, this simply does not matter. The famous Miranda rights must be read to a defendant only when the person is subject to custodial interrogation. Custodial interrogation essentially means police questioning conducted in a situation where the person is not free to leave (i.e., under arrest).
When Miranda rights are not required
Miranda rights are not required when an officer is asking investigative questions during a traffic stop or when you voluntarily speak with police. The best practice is to exercise your right to remain silent at all times even if the officer has not informed you of this right.
If you are subject to custodial interrogation and the police do not offer Miranda warnings, any statements made to police may be suppressed. But Miranda rights do not apply to other types of evidence, such as physical evidence. The seizure of physical evidence and its use against you is guided by the 4th Amendment principles outlined above. If your case does not involve a post-arrest confession, whether Miranda rights were given probably doesn’t matter.
Don’t go to a police interview without a lawyer
If you are the target of investigation and police ask you to come in for an interview, do not attend without consulting a lawyer first. In most cases, attending such an interview will not benefit you.Police investigating a crime are almost never objectively seeking the truth. Instead, they are trying to build a case against you and will trick you into making admissions or corroborating evidence they already have. This unfortunate truth applies to almost every situation.
Consult a defense attorney experienced in police procedures and your rights
Take the time to find an attorney who is experienced with and knowledgeable of police policies and procedures in your jurisdiction. The experienced criminal defense attorneys at Nichols Zauzig are extremely experienced with the legal and law enforcement communities in Prince William County, Manassas and Stafford County. Call us at 703-492-4200 or email us today for a free consultation within 24 hours or less.