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The police may STOP
FOR QUESTIONING any person whom they believe is committing
or has committed a crime, but that stop must be usually very brief.
The person stopped need not give any information at all. A driver
of a car, if stopped, must produce a license and registration.
The police have no legal right to stop just anyone: only persons
they have reason to believe have committed a crime, or persons
they suspect are carrying weapons, may be stopped for questioning.
The stop must be brief, unless the police are prepared to make
an arrest. An arrest is justified only when the police have PROBABLE
CAUSE to believe the person is committing or has committed
a crime. Sometimes it is permissible for the police to detain
a suspect long enough for a person at the scene of a crime to
see if they can identify the suspect.
Anything said to a police officer may be used in court, whether
it is an oral statement or a written statement. Some people think
that as long as they do not sign anything, nothing they say can
be introduced as evidence in court against them: this is not true.
A STATEMENT
is sometimes another word for CONFESSION.
Often, defendants give statements to the police because they
believe they can “talk their way out of’ difficulty.
That is highly unlikely to be true. Once police have made an arrest,
or believe they have cause to arrest a person, a statement is
unlikely to do a defendant any good. In fact, it can do a defendant
a lot of damage when the case gets to court. Similarly, defendants
sometimes believe that if they “cooperate,” less harm
will come to them. That is just as untrue. Once a formal charge
is made, only the Court or prosecutor may dismiss the case. No
matter what a defendant tells the police, they have no power to
drop a formal charge.
The police cannot deliver on any promises of particular sentences,
although they sometimes make recommendations to the prosecutor
or the judge. Neither can the police insure that a defendant will
not be prosecuted once s/he is charged. It is true that the police
themselves determine whether a person will be arrested, but it
is highly unlikely that anything the defendant says will influence
that decision. If there is enough evidence to arrest, the defendant
will be charged. If police do not yet have enough evidence, the
defendant runs the risk that the statement s/he gives will provide
that evidence.
Persons stopped while driving a car must show the police a license
and registration. There are very special rules for when a car
may be searched if a person in the car is stopped or arrested.
As a general rule of thumb, police can search any item within
the car itself if it might contain weapons. Nothing in a car is
absolutely guaranteed to be secure against a police search, but
items in a locked trunk are protected more than items strewn about
the seats; and items kept in a locked container of any sort are
more protected than items kept in the open.
Persons stopped on the street need not show police anything.
The police may not search a person stopped on the street, unless
they are willing to make an arrest, with one exception: if there
is a reason to believe the person is armed, police may “FRISK”
the person (pat down the outside of your clothing). Often if the
police believe they have found some incriminating article on a
person, they will ask him or her to take it out and give it to
them. No one is obligated to do this. If the police are entitled
under the law to take the article, the police should take it themselves.
A defendant who voluntarily gives police an item may find that
even though the police were not legally entitled to have it to
begin with, the defendant’s action of handing it over may
constitute CONSENT.
Usually, anything the police take illegally may not be used against
a defendant in court: it will be SUPPRESSED
from evidence. If, however, a defendant turns over an item or
consents to the police taking it, the item may be used in court
even if the police were not entitled to take the item forcibly.
If a person is merely stopped, rather than arrested, the police
have no right to make him or her open packages or boxes on his
or her person; they have no right, for example, to look inside
a cigarette pack to see if there are drugs.
As a general matter, it is always better not to voluntarily
permit any searches of your person, car or belongings. If the
law gives police the right to search, they will do so without
your agreement. If the law does not give them the right to search,
your voluntary cooperation will give them that right.
With very rare exceptions, homes may not be searched without
a search warrant, signed by a judge, giving the police the right
to enter the home and look for particular, specified objects.
Also, police may usually not enter a home without permission in
order to make an arrest, unless they have an arrest warrant for
a specific person located in the home. A person who lives in the
home or is visiting there with permission cannot generally be
arrested inside the home unless the police have either a search
warrant or an arrest warrant, signed by a judge. The police are
obligated to show that warrant.
An ARREST
allows the police to keep a defendant in custody until court.
Arrested persons are taken to the police station for BOOKING,
and will be fingerprinted and photographed. Arrested persons will
be required to identify themselves, and it is a crime to give
a false identity. Police may completely search the person of an
arrested person and they may use anything they find against you
in court. Police can often impound the vehicle of a person arrested,
if the person was the driver. An INVENTORY
SEARCH requires the defendant to empty pockets. Wallets,
keys and other items will be taken. These items, as long as they
are not evidence of a crime, will be returned when the person
leaves the station.
Police may insist that an arrested person participate in a LINEUP.
Persons who are not arrested or not legally detained do not have
to participate in a lineup, and should not do so. A lineup is
when the police literally put the defendant in a line with other
people to see if the victim or witness can identify anyone in
the line as having participated in a crime. A lineup identification
can be very damaging in court. Only persons formally charged are
entitled to be represented by an attorney at a lineup. If a person
is represented by the Public Defender, a Public Defender attorney
will come down to the police station during the lineup.
Persons required to appear in a lineup should be careful not
to wear any distinctive clothing which might itself cause the
witness to make a positive identification. The witness is supposed
to make an identification, if s/he can, by face and physical characteristics,
not by anything else. A defendant may be required to speak or
say certain words at a lineup and to put on certain clothing.
Police generally question persons they arrest. Prior to questioning,
police will give some preliminary advice, called MIRANDA
WARNINGS. This is what they are and what they mean:
(1) You have the right to remain silent.” This means that
you are legally entitled to refuse to answer any questions at
all. You may think that if you refuse to answer questions, you
will look guilty. The law protects you, however, because a refusal
to answer questions cannot be admitted in court if you were under
arrest at the time you refused. In other words, the jury will
never know that you refused to answer questions so they can’t
hold it against you.
(2) “Anything you say may be used against you in a court
of law.” This means that anything you tell the police may
be testified to in court. If you say something damaging (incriminating),
anyone who heard you say it will testify in court, repeating to
the jury what you said to the police. This is why an oral statement
can be as damaging to you as a written confession.
(3) “You have the right to an attorney.” You need
not be alone in the police station. You are entitled to have a
lawyer there with you during any police questioning. If there
is someone else -- parent or a non-lawyer -- whom you want to
be with you, ask the police if he or she may be present during
questioning. The police do not have to agree, but if they don’t,
that is another good reason not to give a statement.
(4) “If you cannot afford an attorney. one will be appointed
for you. If you are indigent, the police will call a Public Defender
lawyer to be with you at the station. Usually, a Public Defender
lawyer is not appointed until your arraignment in court. However,
if you do want to make a statement, or if you do not know whether
you want to make a statement or not, the police will ask a Public
Defender lawyer to come to the station to consult with you. If
no Public Defender is available, wait until you get to court.
Do not make a statement just because there is no lawyer available.
If giving a confession would help you get a good deal now, which
it usually will not, it will help you just as much or more later.
The important thing to remember is that there is nothing you can
do by yourself in the police station that a lawyer could not do
as well or, more likely, better, since s/he is trained for this
purpose. You can only hurt your case by giving a confession.
(5) “You have the right to stop the questioning at any
time.” If you begin to give a statement, or confession,
you may stop answering questions at any time. Just because you
begin does not mean you are “stuck” with your decision.
If you change your mind at any time or become unsure, stop answering
questions. Occasionally, it may be true that giving a statement
will help your case. In that event, a lawyer will insure that
you give a statement which will help your case the most. It never
hurts to have a lawyer with you, even while you are giving a statement
to the police.
Another right, which the police may not tell you about, is the
right to make a telephone call. You should always let someone
know that you are in the police station under arrest. The best
person to call is a lawyer. If you do not know a lawyer, or cannot
afford a lawyer, call the Public Defender Office. If you cannot
reach a lawyer, call someone whom you trust to call a lawyer for
you. Make sure that the person you call knows exactly which police
station you are being held at. If the person you call is going
to telephone a lawyer for you, make sure he or she knows it is
important that a lawyer come down to the station as soon as possible.
If your lawyer is not available, call another one.
The police may ask you to sign papers in the police station.
Some of these papers are not damaging, but it will be difficult
sometimes for you to know which are damaging documents and which
are not. The better rule is not to sign anything at all (except
that you may want to sign an INVENTORY
report which is a list of all items taken from your pockets when
you were arrested; if you do not sign the report, it is possible
you will not get your belongings returned to you). Other than
an inventory report, do not sign anything at all that relates
to the police investigation of your case. Never sign something
you haven’t completely read or do not fully understand.
The police will probably ask you to sign something called a RIGHTS
FORM; the police will tell you that signing it simply means
that you understand your rights. Sometimes, however, that form
has additional things printed on it. One common extra thing it
may have is a statement saying, “I do not want a lawyer
present.” Another common addition is, “I want to make
a statement.” If you sign that you understand the Miranda
warnings, you may be agreeing with those additional statements.
You do not have to sign a Rights Form or a WAIVER
FORM, no matter what the police tell you.
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