MIRANDA RIGHTS

MIRANDA RIGHTS

You have many rights in this great country of ours and one you need to always remember is your right to remain silent.  Most people think that police have to read you your Miranda warnings before questioning a person. While police “should” read a person his/her Miranda warnings prior to questioning a person who has been arrested, it is becoming more and more prevalent that police will try to elicit an incriminating statement from a suspect before they Mirandize him/her. Police often hide behind the concept of “limited detention” in claiming Miranda rights were not required to be given because the person had not  yet been placed under arrest

The Miranda Rights are based on an Arizona case involving Ernesto Miranda.  You can see one of the Miranda Rights Cards signed by Mr. Miranda here.  His case paved the way for  the courts to give meaning to ”The Golden Rule”:
you should not talk to the police and you should immediately ask for a lawyer.

In Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966) the court found that the State could  not use statements that result from
questioning while a person is in custody (under arrest) unless that  person is first  informed his/her right to remain silent, that any statement made may be used as evidence against him/her, and that he/she has a right to an attorney  prior to questioning.

The Miranda case is historically significant because it safeguards some very personal constitutional rights.  Remember, just because police question and you feel you are under arrest does not mean they have to advise you of your rights. Always remember: SILENCE IS GOLDEN and you have a right to  talk to a lawyer before you agree to speak to police . You need to make it clear you are invoking your right to remain silent and that you want an attorney before you begin to answer any police questions. It’s is not legally sufficient to invoke these rights by refusing to answer questions or remaining silent. Berghuisv. Thompkins, 130 S.Ct. 2250, 176 L. Ed. 2d 1098 (2010) a recent US Supreme Court case specifically held  that the right to remain silent must be clearly invoked- you cannot just remain silent or police can continue to ask questions.

 

 

 

 

 

 

 

 

 

 

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I HEAR YOU KNOCKING BUT YOU CAN’T COME IN OR KNOCK AND TALK

I HEAR YOU KNOCKING BUT YOU CAN’T COME IN

It has become commonplace for police to use this very simple, yet effective ruse to get into your home. Someone calls the police, be it a neighbor who does not
like the traffic to and from your house during all hours of the day or night or
simply one of your “rat” friends who snitch you out, and the police come knocking on your door. You should know that, unless the police have a search warrant, you need not answer the door. Their purpose is not to tell you that you won the good neighbor award. They are there to try to find some reason to arrest you.

Once you open the door, it’s an easy matter for the officer to say he/she smelled the odor of marijuana, saw a bong,  saw something illegal, resulting in your detention and a search warrant being secured to search your residence, culminating in your arrest. Remember, it will be your word against that of an officer. Who do you think the judge or jury will believe? So how do you avoid getting zapped? Do not answer the door if you do not know who is at the door, especially if you believe they are police. Unless they announce “search warrant,” you have no legal duty to respond.

Assume you were half-asleep when you answered the door and you suddenly realize it’s the police. Unless you are placed under arrest and cannot leave, you would be wise to politely excuse yourself, tell them you are in a hurry, do not have time to talk to them, close the door and call your attorney, if you have one. If the officer prevents you from closing the door, step outside, close the door  behind you so they cannot look in and tell the officer you were on your way out, do not have time to talk to them and leave. Remember, you do not have to talk to them and if they persist, politely tell them you want an attorney before you answer any questions. Anything you say, anything the officer sees, smells or hears will be used against you in court or as a basis to secure a search warrant. This “knock and talk” ruse has recently been approved by the 9th Circuit Court of Appeals in  United States v. Perea-Rey (9th Cir. 2012)

Knocking on a door is an “age old request for permission to speak to the
occupant.” State v. Haywood, 00-1584 (La.App.5 Cir.3/28/01), 783 So.2d
568, quoting State v. Sanders, 374 So.2d 1186, 1188 (La.1979). When a door is
opened in response to a knock and the person voluntarily talks to the person at
the door, there is no compulsion, force or coercion involved so no constitutional violation occurs.

In response to a “knock and talk,” you have the absolute right to deny officers admission and to refuse to answer questions, assuming they are not there pursuant to a search or arrest warrant.Hardister v. State, 849 N.E.2d 563 (Ind., 2006)

 

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LOOKING FOR A GOOD LAWYER

LOOKING FOR A GOOD
LAWYER

Looking for a good lawyer is not always a pleasant task. There are many lawyers out there who handle all types of legal matters. There are civil lawyers and there are criminal defense lawyers. Some are good, some are bad and some are just plain “ugly.” “Ugly,” in the sense that all they want is your money and they will promise you the world but deliver nothing. No lawyer can promise you more than he/she will do the best job possible. Excellent lawyers don’t keep a scorecard of wins and losses because sometimes a win means no more than having saved a client several years of their life or it could mean as much as a dismissal of charges. Even the worst of attorneys get cases dismissed on occasion. If you handle hundreds of cases, some are bound to be dismissed through no fault of the lawyer.

If you or a loved one is charged with a crime,  take your time in selecting a
criminal defense lawyer.  When we look for a lawyer out of state, the first place we look is to see whether that state has “certified specialists” in criminal law. Assuming it does, then we check with the National Association of Criminal Defense Attorneys (NACDL), a national organization of criminal lawyers. We believe every criminal lawyer interested in criminal justice belongs to this nationwide organization.

Having now found a criminal  law specialist who belongs to NACDL, it’s time to find out more or less what this lawyer does. Does he/she specialize in DUIs, in misdemeanors, in drug cases, or major felonies. You certainly do not want to
retain a DUI attorney for a drug charge or major felony. If the lawyer has to
look up the statute to determine the class of felony or punishment for your
charge, he/she probably is not the right lawyer for you. If the law firm is one
the ends with “associates,” you better find out who will be your lawyer and
who will accompany you to court each time you go. Otherwise, you may find
yourself with a different lawyer each time you go to court, never knowing who
you hired. You will have paid big bucks for the named partner and received a
salaried associate. Don’t be afraid to ask  who will be handling your case. If the named partner tells you his “firm” will be representing you, “run” don’t walk. That means you won’t know who will be showing up for court.   Make sure the lawyer you retain will be  “your”  lawyer handling “your” case, will be responsible for “your” case, will be responsive to “your” phone calls or emails, and will personally will be handling court appearances in “your” behalf.

When your life or that of a loved one is on the line, you want to be sure you are in good hands.

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CAN I GO NOW?

CAN I GO NOW?

People often wonder whether they have to talk to a police officer when approached or confronted. There are many ways an officer may approach you. You should be aware, police officers may briefly detain an individual who they have reasonable suspicion to believe is involved in a crime. Terry v. Ohio, 392 U.S. 1, 27 (1968). A police officer has the legal right/power to stop and detain an individual if he/she “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).  An officer may also briefly stop any “suspicious individual, in order to determine his[her] identity or to
maintain the status quo momentarily while obtaining more information.” Adams v. Williams, 407 U.S. 143, 146 (1972). Unless there is a legitimate basis to detain an individual, the person approached may not be detained but may refuse to cooperate and go on his/her way.

In assessing the reasonableness of a “Terry” stop, the courts examine whether the facts warranted the intrusion on the individual’s Fourth Amendment rights, and whether the scope of the intrusion was reasonably related to the circumstances which justified the interference in the first place. State v. Boteo-Flores (Ariz., 2012).

What is reasonable suspicion?   Reasonable suspicion requires a particularized
and objective basis for suspecting that a person is engaged in criminal activity. State v. O’Meara, 198 Ariz. 294, 9 P.3d 325 (2000). Officers cannot act on a mere hunch but if an officer, based on his/her prior training and experience, can “perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer” Brown v. Texas, 443 U.S. 47(1979), then the detention will be upheld.

As to traffic stops, if the officer articulates a valid reason such as a violation of the traffic code, even if the officer is intentionally targeting someone, the stop will usually be upheld if viewed objectively as justified. Ohio v. Robinette, 519 U.S. 33, 38 (1996) (quoting Whren v. United States, 517 U.S. 806, 813 (1996)). But if it is found that this pretext stop was not objectively valid, the reasons behind the officer’s actions can be looked at. Absent a reasonable suspicion to detain you for the purpose of issuing a warning or citation, the officer cannot legally detain you.

Bottom line, if an officer stops you on the street or is done issuing you a traffic ticket, politely ask if you are free to go and if the officer says “yes”, then leave and do not agree to answer any further questions. If the officer says you are not free to leave but are being  detained, do not talk, just provide your full name or identification, and politely ask to call your lawyer.

Posted in Rights |

Identification Requirements

Identification requirements:

As a person living or visiting in Arizona, with the exception of immigration
related actions or a traffic situation, if a police officer randomly asks you
for identification, you do not need to provide it. If you choose to provide your identification, you should remember the rules of engagement with police which we previously discussed:  never talk to a police officer you did not call; be polite; do not lose your temper or appear to do so and politely ask for a lawyer.

The only time that legally you must provide identification is if you are driving a vehicle. However, if you are being lawfully detained based on  the officer’s
reasonable suspicion that you have committed, are  committing or are about to commit a crime, you then are only required to give your true full name and nothing more pursuant to Arizona Revised Statute §13-2412.  Again, the only other response should be to ask for a lawyer to be present before any questions will be answered. REMEMBER; SILENCE IS GOLDEN.

Can police ask you for your driver’s license if you are walking or are a passenger in a vehicle?  Yes, they can ask you anything they want, but legally you do not have to give it to them!  When in doubt, provide your identification and then ask to call a lawyer. You need not answer any further questions. Officers often will threaten you with arrest for not co-operating with them: they are either ignorant of the law, or are trying to take advantage of you. Politely ask for a lawyer and every so often keep asking for a lawyer.

Remember, always be polite and  ask why you are being stopped and questioned.  Ask if you are you free to leave and, if not, why not? You should be aware that police officers may briefly detain an individual who they have reasonable suspicion to believe is involved in a crime. Terry v. Ohio, 392 U.S. 1, 27 (1968). A police officer has the legal power to stop an individual if he “reasonably suspects that the person is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).  An officer may also briefly stop any “suspicious individual, in order to determine his[her] identity or to maintain the status quo momentarily while obtaining more information.” Adams v. Williams, 407 U.S. 143, 146 (1972). Unless there is a legal basis to detain a person, the person approached should not be detained and may refuse to cooperate and go on his/her way.

Our next post will discuss what to do if you are stopped for questioning.

13-2412. Refusing  to provide truthful name when lawfully detained; classification

A. It is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime. A person detained under this section shall state the person’s true full name, but shall not be compelled to answer any other inquiry of a peace officer.

B. A person who violates this section is guilty of a class 2 misdemeanor

 

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LAWYER JOKES ASIDE. . .

LAWYER JOKES ASIDE, YOU HAVE A RIGHT TO ONE ONCE YOU ARE DETAINED AND PRIOR TO QUESTIONING

You never have to talk to police, except to provide your name in certain circumstances but sometimes we need to talk to police because we are victims of a crime or need their protection. Many people do not realize that when that
purpose ends, so should your police contact. People encounter police through a
variety of situations.  Most police officers follow the law and are there to protect you.  They serve honorably and deserve respect for their devotion to an often difficult job. There are also situations when you may encounter a police officer who either does not understand the law or intentionally disregards it.  It is important for you to know your rights. Here are some tips to make any encounter end on a positive note.

Keep in mind that while you have certain rights as a person in the United States, sometimes you need to be practical to avoid problems;  especially when confronted by law enforcement.  When the process you are in shifts from investigatory to accusatory—when its focus is on you as the accused and its purpose is to elicit a confession—the adversary system begins to operate, and, the accused, upon request  must be permitted to consult with a lawyer. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). This case paved the way for holding in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966) that required police to tell a person about that right.

While you do not  have to shout your love for lawyers from the rooftops, you must clearly state you want a lawyer before you answer any question in order for the police to have to stop questioning you. Davis v. United  States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).  Very often, police will continue to ask questions or they may resort to other coercive tactics in an attempt to get you to talk. Once a person begins to answer questions it becomes extremely difficult to stop. The moral of this story is: Do not start. You are your own worst enemy. Police tactics will be taken up in another blog.

Remember “loose lips sink ships!”

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SILENCE IS GOLDEN

Know your Rights! What to do if you are stopped by the Police.

All of us have had some form of contact or encounter with police: it may have been a traffic stop, an arrest, a 911 call to report a crime or a call for assistance. The experience may have been pleasant or it may have been disastrous. Many times, we personally determine whether it turns out to be good, bad or ugly.

You may or may not agree with me when I tell you from 40 plus years of experience that most police officers follow the law; are there to protect you and try to do so. They serve honorably and deserve respect for their devotion to an often difficult and dangerous job.

There are, however, that 10% who should never have been hired “to serve and protect”. They are the ones who believe the end justifies the means, or that they can do what they want whenever they want – regardless of whether it is legal or not. They are the ones who violate individual’s rights day in and day out. Many of us, unfortunately, have encountered this group of “terrorists”. You need only say the wrong thing, appear belligerent, or refuse to co-operate and you could find yourself being physically assaulted and then arrested. You could be charged with resisting arrest and aggravated assault simply for trying to protect yourself.

It is, therefore, very important that you know and understand your rights and the rules of engagement.

Rule 1: Never talk to police for any reason you didn’t call them for

The “first commandment” in dealing with police you did not call is: Never talk to police for any reason you didn’t call them for. Rarely, if ever, can a person talk themselves out of a problem. The officer is not asking you questions to help you out. They are looking for some sign or evidence of criminal activity so they can arrest you. Police are trained to scrutinize your manner of speech, your reaction to questions asked, your body language and to try to find incriminating and impeachment evidence. Remember: “Silence Is Golden”.

Rule 2: Ask to call your lawyer

If you cannot avoid the police officer and they continue to ask you questions, always ask to call your lawyer. Politely assure them that if your lawyer says is it OK,  then you will answer their questions. (Your lawyer will rarely, if ever, advise you to answer their questions.) They might try to coerce or cajole you into talking, and may even lie to get you to talk. There are numerous tactics police are trained to use to elicit a confession. These will be discussed in detail in a later blog. When this happens, politely and calmly tell the officer, “I have done nothing illegal, and want to call my lawyer before answering any questions”.

Rule 3: Never agree to allow a search of yourself, your car, your personal property or your home

If confronted with a situation where the officer seeks permission to search you, your vehicle or your home, you should be aware that constitutionally you have an absolute right to refuse, assuming the officer does not have a search warrant. It would be wise to politely  tell the police officer that you would like to call your lawyer and if he tells you to allow the search , you will do so. Otherwise, the officer needs to get a search warrant. If you don’t have a lawyer you can call, then politely refuse to allow a search. Should the officer threaten to get a warrant, or to call in the canine dogs or tell you that “you will be here all night”, be patient, tell them to do what they need to do and wait.  Again, these are commonly used tricks to get you to waive your constitutional right. If you consent to the search, you will probably live to regret this decision.

 Rule 4: Never lose your temper.

Bad decisions generally result from lost tempers or “emotional decisions”. Always  try to “keep your cool” and be polite no matter how intimidating or upset the officer might get. Being polite is very unnerving to that 10% we talked about; especially, if they are trying to unsettle you and force you to make a mistake.

If you lose your temper, I can guarantee you, you will either do something very physically stupid or say something  incriminating. Never attempt to antagonize the officer or criticize what they are doing – you have nothing to gain by arguing with the police. Anything you say or do will be used against you.

Should you be arrested for something you did not do and honestly believe you are innocent, NEVER resist arrest. The law does not provide a defense for resisting an illegal or unwarranted arrest. Resisting arrest will only get you  a trip to the hospital, new charges and a potentially higher jail/prison sentence.

Should you be stopped by police while in public

Be polite and respectful even though the officer may not be. Being “macho” or getting upset might make you feel better but I can guarantee you, you will later regret it. Always remain calm and in control of your words, body language and emotions. Remember, anger has a way of causing us to do, or say, the wrong thing.

Keep your hands where the police can see them. You don’t want to become a statistic for a police shooting. If you do have a weapon, do not try to remove your weapon to show or give to the officer. Raise your hands to head level, and calmly notify the officer you have a weapon. Allow them to remove the weapon until the confrontation is over with.

Do not run, even if you know you have an outstanding warrant. Far more often than not, you will be caught and you risk having an angry police officer taser you, beat you to a pulp or even shoot you.   Insult will then be added to your injury when you are charged with aggravated assault on a police officer and resisting arrest.

Remember, touching or spitting at or on a police officer can buy you an Aggravated Assault charge, a beating and a trip to the “Arpaio” Hilton.

If you feel your rights have been violated

Write down everything you remember as soon as possible and try to locate witnesses so you can provide them to your lawyer. If you are injured, have photographs taken of the injuries as soon as possible but make sure you seek medical attention first and then contact your lawyer. Your lawyer can file a written complaint with the appropriate police department’s internal affairs division or civilian complaint board. If you cannot afford to retain a lawyer to do so, contact us and we will help/direct you on what you need to do.

And remember, the best way to avoid the police is to stay out of trouble.

 

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SILENCE IS GOLDEN

Know your Rights! What to do if you are stopped by the Police.

All of us have had some form of contact or encounter with police: it may have been a traffic stop, an arrest, a 911 call to report a crime or a call for assistance. The experience may have been pleasant or it may have been disastrous. Many times, we personally determine whether it turns out to be good, bad or ugly.

You may or may not agree with me when I tell you from 40 plus years of experience that most police officers follow the law; are there to protect you and try to do so. They serve honorably and deserve respect for their devotion to an often difficult and dangerous job.

There are, however, that 10% who should never have been hired “to serve and protect”. They are the ones who believe the end justifies the means, or that they can do what they want whenever they want – regardless of whether it is legal or not. They are the ones who violate individual’s rights day in and day out. Many of us, unfortunately, have encountered this group of “terrorists”. You need only say the wrong thing, appear belligerent, or refuse to co-operate and you could find yourself being physically assaulted and then arrested. You could be charged with resisting arrest and aggravated assault simply for trying to protect yourself.

It is, therefore, very important that you know and understand your rights and the rules of engagement.

Rule 1: Never talk to police for any reason you didn’t call them for

The “first commandment” in dealing with police you did not call is: Never talk to police for any reason you didn’t call them for. Rarely, if ever, can a person talk themselves out of a problem. The officer is not asking you questions to help you out. They are looking for some sign or evidence of criminal activity so they can arrest you. Police are trained to scrutinize your manner of speech, your reaction to questions asked, your body language and to try to find incriminating and impeachment evidence. Remember: “Silence Is Golden”.

Rule 2: Ask to call your lawyer

If you cannot avoid the police officer and they continue to ask you questions, always ask to call your lawyer. Politely assure them that if your lawyer says is it OK,  then you will answer their questions. (Your lawyer will rarely, if ever, advise you to answer their questions.) They might try to coerce or cajole you into talking, and may even lie to get you to talk. There are numerous tactics police are trained to use to elicit a confession. These will be discussed in detail in a later blog. When this happens, politely and calmly tell the officer, “I have done nothing illegal, and want to call my lawyer before answering any questions”.

Rule 3: Never agree to allow a search of yourself, your car, your personal property or your home

If confronted with a situation where the officer seeks permission to search you, your vehicle or your home, you should be aware that constitutionally you have an absolute right to refuse, assuming the officer does not have a search warrant. It would be wise to politely  tell the police officer that you would like to call your lawyer and if he tells you to allow the search , you will do so. Otherwise, the officer needs to get a search warrant. If you don’t have a lawyer you can call, then politely refuse to allow a search. Should the officer threaten to get a warrant, or to call in the canine dogs or tell you that “you will be here all night”, be patient, tell them to do what they need to do and wait.  Again, these are commonly used tricks to get you to waive your constitutional right. If you consent to the search, you will probably live to regret this decision.

 Rule 4: Never lose your temper.

Bad decisions generally result from lost tempers or “emotional decisions”. Always  try to “keep your cool” and be polite no matter how intimidating or upset the officer might get. Being polite is very unnerving to that 10% we talked about; especially, if they are trying to unsettle you and force you to make a mistake.

If you lose your temper, I can guarantee you, you will either do something very physically stupid or say something  incriminating. Never attempt to antagonize the officer or criticize what they are doing – you have nothing to gain by arguing with the police. Anything you say or do will be used against you.

Should you be arrested for something you did not do and honestly believe you are innocent, NEVER resist arrest. The law does not provide a defense for resisting an illegal or unwarranted arrest. Resisting arrest will only get you  a trip to the hospital, new charges and a potentially higher jail/prison sentence.

Should you be stopped by police while in public

Be polite and respectful even though the officer may not be. Being “macho” or getting upset might make you feel better but I can guarantee you, you will later regret it. Always remain calm and in control of your words, body language and emotions. Remember, anger has a way of causing us to do, or say, the wrong thing.

Keep your hands where the police can see them. You don’t want to become a statistic for a police shooting. If you do have a weapon, do not try to remove your weapon to show or give to the officer. Raise your hands to head level, and calmly notify the officer you have a weapon. Allow them to remove the weapon until the confrontation is over with.

Do not run, even if you know you have an outstanding warrant. Far more often than not, you will be caught and you risk having an angry police officer taser you, beat you to a pulp or even shoot you.   Insult will then be added to your injury when you are charged with aggravated assault on a police officer and resisting arrest.

Remember, touching or spitting at or on a police officer can buy you an Aggravated Assault charge, a beating and a trip to the “Arpaio” Hilton.

If you feel your rights have been violated

Write down everything you remember as soon as possible and try to locate witnesses so you can provide them to your lawyer. If you are injured, have photographs taken of the injuries as soon as possible but make sure you seek medical attention first and then contact your lawyer. Your lawyer can file a written complaint with the appropriate police department’s internal affairs division or civilian complaint board. If you cannot afford to retain a lawyer to do so, contact us and we will help/direct you on what you need to do.

And remember, the best way to avoid the police is to stay out of trouble.

 

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