for my friends at PB....

[bigkarch]

Arrests and Interrogations FAQ...page one

TAKE TIME TO READ THIS....IT MAY BE BORING AND LONG, BUT IT IS YOUR RIGHTS AND INFORMATIONAL.........THKS

An arrest occurs when a police officer armed with an arrest warrant utters the magic words "you're under arrest," or when a police officer significantly restrains your freedom of motion. The restraint must be more than a mere detention on the street (discussed above). Although in most situations the police will take you to the police station for booking (photographs and fingerprinting), it is also possible for an officer to arrest and book you at the crime scene, and then release you when you give a written promise to appear in court at a later time. After the police arrest you, they will often question you in order to find out more about the crime, your role in it and whether there may be other suspects. There are several Constitutional protections that you may invoke during police interrogations.

Can a person who is charged with a crime be forced to give bodily samples?

Yes. You might think that being forced to give bodily samples-such as blood, hair or fingernail clippings-is a violation of the U.S. Constitution's protection against self- incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the Constitution.

When do the police need a warrant to make an arrest?

As long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.

The exception? There are few places where the adage "a man's home is his castle" still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a nonserious offense-such as a simple assault-and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.

How do the police obtain an arrest warrant?

An officer must present sworn evidence to a judge that a crime has occurred and that the police have probable cause to believe that the crime was committed by the person they want to arrest. If the judge agrees, she will issue a warrant. The police are then entitled to seize the person wherever they can find him.

If the police make an illegal arrest, is the arrested person set free?

No. But if a search of the person or her immediate surroundings is conducted during the arrest and turns up incriminating evidence, the evidence may be kept out of the person's trial on the grounds that it is "fruit of the poisonous tree"-that is, the evidence was found as the result of an improper arrest. Also, if the illegally arrested person makes any statements to the police after being arrested, the statements may not be used as evidence. This is true whether or not the arrested person was "read their rights." (See below.)

If I'm arrested, do the police have to "read me my rights?"

No. However, if they don't read you your rights, they can't use anything you say as evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by T.V. police immediately upon arresting a suspect:

You have the right to remain silent.
If you do say anything, what you say can be used against you in a court of law.
You have the right to consult with a lawyer and have that lawyer present during any questioning.
If you cannot afford a lawyer, one will be appointed for you if you so desire.
If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)

 

[bigkarch]

page two........



It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street to question them about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.

Will a judge dismiss my case if I was questioned without a Miranda warning?

No. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate a suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements.

What's the best way to assert my right to remain silent if I am being questioned by the police?

If you're taken into custody by the police, you don't have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:

I want to talk to an attorney.
I won't say anything until I talk to an attorney.
I don't have anything to say.
I don't want to talk to you anymore.
I claim my Miranda rights.
If the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. As a result, anything you say after that point -- and any evidence gleaned from that conversation-will not be admissible at your trial.

How heavy handed can the police get when asking questions?

Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. The days of the rubber hose, protracted grilling under bright lights and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the information cannot be used by the prosecutor at trial. In addition, under the rule known as "the fruit of the poisonous tree," any evidence that the police obtain as the result of a coerced statement is equally inadmissible.

Defendants often claim that police officers coerced them into talking. And it's just as common for police officers to say that the defendants spoke voluntarily. If the police physically coerce a defendant into talking, the defendant can support his coercion claims with photos of marks and bruises. But actual police brutality is unusual, and a defendant cannot usually offer independent evidence to support his claims of psychological coercion. Judges, believing that defendants have a greater motivation to lie than do police officers, usually side with the police and conclude that no coercion took place.
__________________

 

[bigkarch]

let me know if you have any questions...pm me at [email protected]

 

[bigkarch]

searches

searches

not sure where to post it but here is a my post about searches...given out of respect for Buff..




I dont mean to keep shoving this down your throats but here is more good info about searches...please read and learn....

Search Warrants: What They Are & When They Are Necessary

Learn when police officers must obtain a warrant before they search your home or other property.

A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M.," and direct the police to search for and seize "cash, betting slips, record books and every other means used in connection with placing bets on horses."

Police officers obtain warrants by convincing a judge or magistrate that they have "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant. The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.

What Is Probable Cause?

The Fourth Amendment doesn't define "probable cause." Its meaning remains fuzzy. What is clear is that after 200 years of court interpretations, the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer's subjective beliefs. The affidavits also have to establish more than a "suspicion" that criminal activity is afoot, but do not have to show "proof beyond a reasonable doubt."

The information in the affidavit need not be in a form that would make it admissible at trial. However, the circumstances set forth in the affidavit as a whole should demonstrate the reliability of the information. In general, when deciding whether to issue a search warrant, a judicial officer will likely consider information in an affidavit reliable if it comes from any of these sources:

a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on
an informant who implicates herself as well as the suspect
an informant whose information appears to be correct after at least partial verification by the police
a victim of a crime related to the search
a witness to the crime related to the search, or
another police officer.
Sometimes the police provide mistaken information in the affidavit and the judge or magistrate issues a warrant under circumstances that, given the true state of affairs, would not justify a search under the Fourth Amendment. The question then arises as to whether the search itself is legal. In most situations the search will be upheld if the police acted in good faith when seeking the warrant (that is, they didn't know about the mistakes in the affidavit). The reasoning here is that:

it makes no sense to condemn the results of a search when police officers have done everything reasonable to comply with Fourth Amendment requirements, and
the purpose of the rule excluding the results of an invalid search as evidence is to curb the police, not a judge, and that if a judge makes a mistake it should not be grounds to exclude evidence.
What Police Can Search for and Seize Under a Warrant

The police can search only the place described in a warrant, and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.

 

[bigkarch]

Search Warrants: What They Are & When They Are Necessary

If the warrant specifies a certain person to be searched, the police can search only that person unless they have independent probable cause to search other persons who happen to be present at the scene of a search. However, if an officer has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can question the onlooker and, if necessary for the officer's safety, conduct a frisk for weapons.

Technically, a person may require the police to produce a warrant before admitting them into his or her home for a search. However, people sometimes run into trouble when they "stand on their rights" in this way. A warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter without a warrant, a person should not risk injury or a separate charge of "interfering with a police officer." Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer's actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.

When Search Warrants Aren't Required

Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn't apply at all.

Consent Searches

If the person in control of the premises to be searched freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. To constitute a valid consent to search, the consent must be given "freely and voluntarily." If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search. Often, a defendant challenges a search on the ground that consent was not voluntary, only to have a police officer testify to a conflicting version of events that establishes a valid consent. In these conflict situations, judges tend to believe police officers unless defendants can support their claims through the testimony of other witnesses.Sometimes people who are intimidated by the police misinterpret the "request" to be a command and will allow the search. However, so long as an officer does not engage in threatening behavior -- such as placing their hand on a sidearm -- judges will not set aside otherwise genuine consents.

Many disputes about consent have to do with who has the right to consent. For example, do parents have a right to consent to a search of their children's rooms? As a general rule, an adult in rightful possession of a house or apartment usually has legal authority to consent to a search of the entire premises. But if there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord is not considered to be in possession of an apartment leased to a tenant, and therefore lacks authority to consent to a search of leased premises. The same is true for hotel operators. On the other hand, an employer can validly consent to a search of company premises, which extends to an employee's work area, such as a desk and machinery, but not to clearly private areas such as an employee's clothes locker.

A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don't.

 

[bigkarch]

one more...sorry it is long but damn it is your rights..

The Plain View Doctrine

Police officers do not need a warrant to search and seize contraband or evidence that is "in plain view" if the officer is where he or she has a right to be when the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, the plain view doctrine applies and a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.

Search Made in Connection With an Arrest

Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and the person's surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.

To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that after arrest the police may search a defendant and the area within a defendant's immediate control. For example, an arresting officer may search not only a suspect's clothes, but also the suspect's wallet or purse. If an arrest takes place in a kitchen, the arresting officer can probably search the kitchen, but not the rest of the house. If an arrest takes place outside a house, the arresting officer cannot search the house at all. To conduct a search broader in scope than a defendant and the area within the defendant's immediate control, an officer would have to obtain a warrant. However, the police may make what's known as a "protective sweep" following an arrest. When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view.

Searches of Cars and Their Occupants

Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. The reasons why no warrant is required for a car search are:

cars are easily moved and may disappear while a warrant is being sought, and
people driving cars do not have the same expectation of privacy in cars as they do in their homes.
If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.

While a police officer cannot search a car simply because the car was stopped for a traffic infraction -- since routine traffic stops are not arrests that would justify a "search incident to an arrest" -- the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can "frisk" the occupants for weapons so long as they have a "reasonable suspicion" that the occupants are involved in criminal activity beyond the traffic violation and are reasonably concerned for their safety.

The police are sometimes accused of using technical traffic violations as a pretext for stopping the car for the real reason of conducting a further investigation that often includes a frisk and possible search of the vehicle. Sometimes these types of stops are allegedly based on racial profiling. Whatever the police officer's motives, however, if the officer had a valid reason to stop the vehicle, even a ticky-tack one like a broken rear taillight, the stop is legal. And, if the initial stop is valid, any lawful frisk, search or arrest that follows the stop is also valid.


BigKarch

#4 05-25-2005, 10:22 PM
Jerzey
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You can't ever read too much about this subject, thanks for the info
On another note, my roomate is a cop and every cop I know (more then 10 of them) are the worst of the worst as far as breaking the rules (personally I mean).... why, well, because they can.

One of them is an undercover narcotics detective in N. Jersey, he's a Sergeant too, he says it's all about creative writing The stories he tells me are unbelievable, but he works in a bad area.
__________________

 

[bigkarch]

this post should stay here...I have given my info out of respect for Buff and is my work.....As I have said when I left as MOD, let me know if I can be of service to you...please let this info stay here..

 

[Stout1]

good post, thanks for sharing!

 

[goes4ever]

what happened to the legal forum? this should have been there

 

[bigkarch]

PB never had one bro..but if you decide to get one..let me know..I can be of service..