Rules Police Have to Follow
Police officers work hard to ensure people are following the rules, but they need to follow the rules as well. One of the main functions of a police officer is to obtain information and gather evidence, but they must always comply with the United States Constitution when performing their duties as peace officers.
What Constitutional Amendments Apply to Police Officers?
The three main constitutional rules a police officer must comply with are the 4th, 5th, and 6th amendments. If police violate these provisions then the statements, documents, or other evidence police obtained cannot be used in your criminal case. A criminal defense lawyer can argue that police violated one of these constitutional provisions and prevent evidence from being used against you in court.
4th Amendment Protections – Unlawful Searches and Seizures
Everybody has a constitutional right to be free from unlawful searches or seizures under the 4th amendment. However, most people don’t understand how to exercise this right or that you can refuse a police officer’s request. A police officer does not have to inform you of your constitutional right to refuse a search and it is up to you to exercise your rights.
The reality is everybody has a 4th amendment right to be free from unlawful searches and seizures, but there are some exceptions, which include the following:
- if you are on parole in most states like California
- going through some kind of public security screening such as at the airport, a courthouse, or city hall
- where public safety overrides your constitutional rights.
- if a police officer makes a traffic stop they have a right to ask for your license and registration, but they do not have the right to search your trunk, under your seat or glove box without your consent, probable cause, or a warrant.
This constitutional protection is very important in criminal court and what many criminal cases hinge on. A police officer would ideally like for you to consent to the search and that is why they will always ask to search your car, come into your house, or look in your bag. Most people say "yes" without realizing that they have given up a very important Constitutional right.
If police end up searching your property without your consent, without a warrant, or without probable cause a defense lawyer can argue the search violated your 4th amendment right. This generally occurs in a hearing known as a motion-in-limine and the unlawfully seized items can be prevented from being used as evidence against you in court.
5th Amendment Protections – Right to an Attorney and Avoiding Self-Incrimination
The 5th amendment is seen in many popular legal and police dramas when an officer tells someone they are arresting, “You have the right to remain silent; anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?” Your Fifth Amendment protections are being explained to you, but most people don’t understand this and respond yes waiving their 5th amendment right and allowing the officer to engage in unchecked questioning.
To ensure your protections under the U.S. Constitution are protected when police engage in a custodial interrogation you should request an attorney. You must do this affirmatively by saying "I want to talk to a lawyer." If you merely ask the police if you should speak to a lawyer, or if it is a good idea to talk to a lawyer, or some other less affirmative response your rights will not be invoked. Most police officers do not want you to invoke your rights by getting a lawyer so they can question you as long as they need.
6th Amendment Protections – Stops Police Interrogation
The 6th amendment gives you the right to a jury trial, a speedy trial, and a number of other court procedural rules. It is also prevents police from questioning you without an attorney present once charges have been filed against you. If you are being prosecuted for an offense and you are being questioned by police officers, do not answer their questions without the presence of an attorney. Any statements you make to police without an attorney present after charges have been filed should be suppressed.
What Happens When Police Violate My 4th, 5th or 6th Amendment Rights?
If police end up violating your 4th, 5th, or 6th Amendment Rights, the evidence they obtain against you can be kept out of court under the doctrines known as Fruit of the Poisonous Tree and the Exclusionary Rule.
Do I Need a Criminal Defense Attorney?
By hiring a criminal defense attorney you can argue that the police activities were unlawful and if the argument succeeds the evidence will not be allowed in court. This means if you were being prosecuted for marijuana possession and police found marijuana in your trunk in violation of the 4th amendment the marijuana could not be admitted as evidence against you. This will generally result in a prosecutor dropping the charges.
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Last Modified: 09-24-2012 11:19 AM PDT