The following information
has been obtained from NORML.org
and is intended as a brief summation of your constitutional rights and
is meant to offer helpful hints at how to effectively assert and protect
those rights within the context of a police encounter. Of course, this
information is no substitute for consultation with an experienced attorney.
The Fourth
Amendment to the Bill of Rights of the United States Constitution states:
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.
The Fifth Amendment
reads, in part, "No person shall be... compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law...." These amendments provide
the foundation for the rights that protect all U.S. Citizens from intrusive
law enforcement practices. If an officer violates your rights then any
evidence discovered as a result of that violation must be suppressed from
the evidence at trial. This is accomplished by filing a motion to suppress
with the trial judge. Even if an officer obtained a warrant prior to searching,
if that warrant is defective or not supported by probable cause, then
the evidence must be suppressed. Often times, after the fruits of an illegal
detention, interrogation or search are suppressed, the government is left
with very little evidence and the charges are dismissed.
- Don't
Leave Contraband in Plain View
Although law enforcement officers must obtain a warrant before
they can conduct a privacy-invading search, any illicit material
that can be plainly seen by any person from a non-intrusive vantage
point is subject to confiscation. An arrest and a valid warrant
to search the rest of the area is likely to ensue. A "roach"
in the ashtray, a pipe or baggie on the coffee table, or a joint
being smoked in public are common mistakes which all too-frequently
lead to arrests.
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- Never
Consent
Many individuals arrested on marijuana charges could have avoided
that arrest by exercising their Fourth Amendment rights. If a
law enforcement officer asks for your permission to search, it
is usually because: (1) there is not enough evidence to obtain
a search warrant; or (2) the officer does not feel like going
through the hassle of obtaining a warrant. Law enforcement officers
are trained to intimidate people into consenting to searches.
If you do consent, you waive your constitutional protection and
the officers may search and seize items without further authorization.
If officers find contraband, they will arrest you.
If you do not consent to a search, the officer must either release
you or detain you and attempt to get a warrant. The fact that
you refuse to consent does not give the officer grounds to obtain
a warrant or further detain you.
An officer can obtain a search warrant only from a judge or magistrate
and only upon a showing of "probable cause." Probable
cause requires an officer to articulate information that would
cause a reasonable person to believe that a crime has been or
is being committed and that evidence of that involvement can be
found within the object of the search.
There are exceptions to the search warrant requirement which permit
an officer to search an area without a warrant or consent under
certain circumstances. The important thing for you to remember
is never to consent to a search or talk with an officer if you
want to preserve your rights.If an officer asks to search you
or an area belonging to you or over which you are authorized to
control, you should respond:
"I do not consent to a search of my [person, baggage,
purse, luggage, vehicle, house, blood, etc.] I do not consent
to this contact and do not want to answer any questions. If I
am not under arrest, I would like to go now (or be left alone)."
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- Don't
Answer Questions Without Your Attorney Present
Whether arrested or not, you should always exercise the right
to remain silent. Anything you say to law enforcement officers,
reporters, cell mates, or even your friends can be used as evidence
against you. You have the right to have an attorney present during
questioning. Your right to remain silent should always be exercised.
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- Determining
if You Can Leave
You may terminate an encounter with officers unless you are being
detained under police custody or have been arrested. If you cannot
tell whether you may leave, you can ask officers, "Am I under
arrest or otherwise detained?" If the answer is, "No,"
you may leave.
An officer can temporarily detain you without arresting you if
he has "reasonable suspicion" that you are involved
in criminal activity. An officer must be able at a later time
to articulate to a judge objective facts that would have caused
a reasonable person to suspect that you were involved in criminal
activity at the point that you were detained. Also, the officer
may perform a "pat down" or "frisk" on you
during the detention if he has reasonable suspicion that you are
armed. However, an officer may only reach into your pockets if
he pats something that feels like a weapon.
When an officer attempts to contact or question you, you should
politely say:
"I do not consent to this contact and I do not want to
answer any questions. If I am not under arrest I would like to
go now (or be left alone)."
If arrested, you should again refuse a search of any kind and
refuse to answer any questions. At this point you should insist
on speaking to an attorney as soon as possible.
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- Do
Not Be Hostile; Do Not Physically Resist
There are times when individuals politely assert their rights
and refuse to consent to a search but the officers nonetheless
proceed to detain, search, or arrest them. In such cases, it is
important not to physically resist. Rather, you should reassert
your rights as outlined above in section 2.
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- Informing
on Others
The police and prosecutors often try to pressure individuals into
providing information that would lead to the arrest and conviction
of others. Threats and promises by police and prosecutors should
be viewed with caution and skepticism. Decisions should only be
made after consulting with an experienced criminal defense attorney
and examining one' s own conscience.
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Download NORML's
Freedom Card -- your "Get Out of Jail Free" card.. if you
use it wisely.
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