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UNDERSTANDING YOUR RIGHTS
- SEARCH & SEIZURE
- MIRANDA WARNINGS
- RIGHT TO COUNSEL
- RIGHT TO REMAIN SILENT
- RIGHT TO CONFRONT WITNESSES
A. SEARCH & SEIZURE
Investigating a criminal case often involves a search for evidence of the crime. The Fourth Amendment to the U.S. Constitution places important restrictions on the government's right to search a home or a person. Under the Fourth Amendment, the police must have a search warrant showing probable cause that criminal activity in the form of evidence is present before being allowed to search a private home without first obtaining the consent of the occupants.
Although individuals are generally entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal police officers are allowed, where justified, to search your premises, car or other property in order to look for and take illegal items, stolen goods or evidence of a crime. There are important exceptions to the requirement that the police must first obtain a warrant prior to performing such a search. For example, in "exigent or emergency circumstances," police may search a home without consent and without a warrant. These circumstances must include a good faith belief by the police that a person's life is in danger, evidence might be destroyed, or a suspect may be escaping.
Once a person is arrested, the police are allowed to search the individual and the immediate area around the individual. The rationale of allowing a complete search incident to an arrest is to protect the police from hidden weapons.
Once a warrant is obtained, the police may enter onto the specified area of the property and search for the items listed on the warrant. Police may extend the search beyond the specified area of the property or include other items in the search beyond those specified or listed in the warrant if it is necessary to ensure their safety or the safety of others, prevent the destruction of evidence, discover more about possible evidence or stolen items that are in plain view, or search for evidence or stolen items that, based upon their initial search of the specified area, they believe may be in a different location on the property.
Police may search your property without a warrant if you consent to the search. Consent must be freely and voluntarily given, and you cannot be coerced or tricked into giving your permission. Police may search your person and the immediate surroundings without a warrant when they are placing you under arrest. If a person is arrested in a residence, police may make a "protective sweep" of the residence in order to make a "cursory visual inspection" of places where an accomplice may be hiding. In order to do so, the police must have a reasonable belief that an accomplice may be around.
When you are being taken to jail, police may perform an "inventory search" of items you have with you without a warrant. This search may include your car if it is being held by the police in order to make a list of all items inside. Police may search without a warrant if they reasonably fear for their safety or for the public's safety, or if such a search is necessary to prevent the imminent destruction of evidence.
Police may perform a search, without a warrant, if they are in "hot pursuit" of a suspect who enters a private dwelling or area after fleeing the scene of a crime. They may also perform a "pat-down" of your outer clothing, in what is called a "stop and frisk" situation, as long as they reasonably believe that you may be concealing a weapon and they fear for their safety.
B. "MIRANDA" WARNINGS
Although you have the right to remain silent, the police can ask you to waive that right. If you choose to waive your right to silence, the police must first warn you of your constitutional right to silence and your right to have counsel present. Because of the dangers inherent in clever police interrogation, the justification behind the "Miranda" warning is to ensure that the accused makes a "knowing and informed" waiver of his or her rights, before talking to the police. If these warnings are not given or are violated, theoretically neither the police nor the prosecutor can use the confession or its fruits against the defendant. However, there are many exceptions to the rule, making it easier for the police to obtain coerced confessions.
C. RIGHT TO COUNSEL
The U.S. Constitution guarantees a defendant the right to legal counsel in all critical stages of a criminal proceeding. Both the federal and state criminal justice systems have procedures for the appointment of a public defender if the accused cannot afford to hire an attorney. The right to counsel also applies during interrogation, sentencing proceedings and in some criminal appeals. The accused may retain an attorney at any stage of his or her case. Some individuals choose to retain an attorney even before they are formally charged with a crime. Under certain circumstances, an attorney can be helpful in persuading prosecutors not to file criminal charges because the evidence is weak, or the victim is not credible.
D. RIGHT TO REMAIN SILENT
The U.S. Constitution guarantees that no person may be compelled to be a witness against himself or herself. This is another way of saying you have the right to remain silent rather than incriminate yourself by saying things that the prosecution can use against you at trial. This right also protects you from being forced to testify at your trial, and prevents the jury from inferring anything negative about you or your defense because you choose not to testify.
E. RIGHT TO CONFRONT WITNESSES
The right to a fair trial depends on your right to confront and cross-examine witnesses relevant to the prosecutor's case against you. Your attorney may use the court's subpoena power to compel a witness to court even against their will.
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