Know Your Rights: Dealing With Fairfax Law Enforcement
If you are questioned by law enforcement you have constitutional rights that may not be violated under any circumstance. The following is information on these rights and how they can impact your criminal case. To learn more call and schedule a consultation with a Fairfax criminal defense attorney today.
If Police Want to Search Your Home
Unless they have a warrant to search the home, you do not need to let them in. You can say no and ask them to leave. Whether or not that’s the right thing to do depends on the case. Many people believe they should let in the officers to demonstrate that they have nothing to hide. It may be that that is the appropriate thing to do in a particular case.
In general, however, it is generally in your best interest to refuse a search if there is not warrant.
Being Questioned by an Officer in Public
Your rights when you are stopped by an officer in public depend heavily on the circumstances. If the police officer stops you and says, “Stop, I need to talk to you,” then in detaining you, they need what’s called reasonable articulable suspicion that you’ve been involved in a crime. That becomes a legal issue later on.
If an officer just comes up to you and it is what is called a “consensual encounter”, then you can choose not to speak with them. You can choose to not answer their questions and you can walk away.
If it’s a traffic stop, meaning you’re driving your car and the officer puts on his emergency lights and/or siren, then you are obligated to pull over and to comply with the officer. But you do not have to say anything to the officer other than provide your driver’s license and your registration. You do not have to answer his questions. Sometimes it’s in your best interest to answer the officer’s questions and to be polite, however, it may be better to remain silent and not answer the questions that he’s asking.
Difference Between Being in Custody and Detained
Being in custody versus being detained is a legal determination that produces a lot of gray area in court. An officer can detain people for purposes of determining whether or not there is a crime that’s occurring and the person has been involved in a crime. The officer needs to satisfy the legal standard of whether or not there is reasonable articulable suspicion that a person might be involved in the criminal activity.
The person must comply with the officer if he’s being detained. Of course, the detention cannot last forever. The length of the detention and the circumstances surrounding the detention could then provide evidence to argue to the court that the person is now in custody.
The reason why the determination of whether somebody is in custody is important is because when somebody is in legal custody, meaning under arrest or put in a situation which is akin to a formal arrest, then that person, before being interrogated or asked questions, must be advised of their Miranda rights. In a custody determination, there is often a formal arrest but there could be other circumstances in which a detention evolves in to custody. If so, then there needs to be probable cause for that to happen. Thereafter, if the police will to question the person, they must advise them of their rights.
One common misconception is that the officer must always Mirandize someone that they arrest. This is not true. The only time it’s required for police officers to advise suspects of their Miranda rights is when they are interrogating them. An officer can arrest somebody and not ask them any questions. In such a case, officers don’t have to be Mirandized and there’s no remedy for that. There is nothing that the defense can do as long as they didn’t ask him any questions.
If the person is under arrest and they were not advised of their right to remain silent and their right to have counsel present, and the police officer starts asking them questions related to the offense, then that’s grounds for those answers or the statements made by the suspect to be excluded from trial. That would be the remedy if the officer fails to advise him of his rights.