San Diego Criminal Defense

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San Diego Criminal Lawyer

How to Use Your Constiutional Rights

Explained by a San Diego Criminal Defense Lawyer

(This article is intended for informational purposes only. It is not legal advice, or a substitute for a consulting with an attorney concerning the specific facts of your case.)




Now that you know how the police are permitted to lie to you, what do you do about it? 


You have constiutional protections. To use those protections to their fullest extent, remember these two questions: 


Am I being detained? 

Can I speak with a lawyer? 


Do not say anything to the police without a lawyer present. Do not tell the police what they are doing is illegal, or that you will sue them - this is like poking a bear - and if you are surprised by the myriad ways that police can lie to you, you will be shocked to know what they can do to make you uncomfortable. 


Police can hold you for three hours before allowing you three phone calls. They will frequently make you wait longer. 


4th Amendment - Right Against Unreasonable Search and Seizures

Evidence gathered by police as a result of unreasonable search and seizure is routinely suppressed because people understand this one basic principle of law: NEVER CONSENT TO A SEARCH. A warrantless search is presumptively unreasonable. 


The police will explain, "if you don't let us search, we will have to stay here and wait for a warrant." The police will act like they are your best friend, and tell you things like "we're trying to get you out of here as fast as we can, so just let us search you (or your vehicle/bag/etc.)" 


MAKE THEM WAIT. Often times police don't have the probable cause necessary to get a search warrant. If you consent to a search, it is far more difficult to suppress the evidence of the search. 



5th Amendment - Right to Remain Silent


You should always exercise your right to remain silent, but if you need to orient yourself to where you are in the criminal process, ASK THIS ONE QUESTION: 


"Am I being detained?" 


Police response to this question will give you two choices to end your interaction with them. If the police say no, simply walk away and say nothing else. If you are not being detained you are free to leave. 


If the police say yes, keep your mouth shut and say nothing else - this is all you need to do to invoke your 5th amendment right to remain silent. No matter what they say, remain silent. If you are arrested, ask to call an attorney - say nothing else, and be patient and silent. There is nothing you can say or do to speed up the process, and it is the best way to fight any criminal charge. There are many justifications why police can make you wait: to make you sweat a little, to give you time to calm down, to process paperwork, or take a phone call. Be patient, and say nothing but "I want a lawyer." Police may do a lot of terrible and deceitful things to you. Be strong, stay silent. 



Sixth Amendment - Right to Counsel


You have the right to have an attorney present for any police questioning. USE IT. You may have to wait for a public defender, and waiting in a holding cell or interview room can be a long an painful process... but you need to remain vigilant and wait. If you feel like the police are unjustly holding you too long, simply ask "Am I free to leave?"  If they say yes, leave. If they say no, your attorney has a better chance of winning your case as long as you remain silent. 


Miranda Warnings - In Custody Interrogation


You have the right to remain silent

Anything you say will be used against you

You have the right to an attorney

If you cannot afford an attorney, one will be provided to you


Miranda warnings are sometimes referred to as "Miranda Rights." While the warnings describe actual rights that you have, it is not a requirement that Police read you these rights when they arrest you. They are only required to read you these rights if they wish to interrogate you and extract a confession while you are in custody. Some of the ways that police can lie to you apply only when a person is not in custody. Keep in mind that Miranda warnings come in to play only during a custodial interrogation - when police are questioning you and you are not free to leave. 


The most important thing to remember is that the police will break the law! That's why it is best to remain silent, until you have had the opportunity to speak with a lawyer.