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“I Know My Rights!” Ok, So What Are They? | Part 2 of 2

September 29, 2014 By WKCLawBlog

Constitution_stamp

In the first part of this series on knowing your Constitutional rights we covered when “Mirandizing” comes into play and what that means for you and your rights. 

Do you know your rights regarding search and seizure? Another person I ran into in criminal court who “knew her rights” was a woman who was pulled over for speeding and when the officer approached her vehicle, she handed him her marijuana pipe, saying, “Here, you can have it. It’s clogged anyway.” This criminal law genius argued that the officer needed probable cause to stop her and a search warrant to take and test her marijuana pipe. Was she right? A search warrant is only one way for law enforcement to legally seize evidence. There are several doctrines which allow law enforcement to legally seize evidence without a warrant. The most common doctrines allowing warrantless searches are:

  1. Police have probable cause to believe a crime has or is being committed.
  2. Search incident to arrest: a search that occurs as a result of a lawful arrest.
  3. Abandoned property: if the evidence is abandoned without coercion.
  4. Consent: if consent is given to search – this consent is usually contained in probation or parole agreements as well as in situations where police ask for consent.
  5. As a result of “Terry frisk:” if an officer has reasonable suspicion the subject being frisked might be armed.
  6. Inventory searches: for example, if your car is legally impounded – as long as the police follow their inventory policy, any evidence located will generally be admissible.
  7. Exigent circumstances: events which urgently require action.
  8. Plain view: where an officer is legally in a position where he/she can plainly see evidence of a crime.

These exceptions to the requirement of a search warrant are very fact specific as to whether the evidence will be allowed. The caselaw is very specific. If you believe a law enforcement search was improper, ask an attorney. The woman who “knew her rights” was wrong. Can you guess which of the above exceptions was used in court? The officer’s seizure of her marijuana pipe was lawful and she was convicted. See my future blogs for information on when an officer can legally pull you over.

 

WKCLaw_AbigailFillman

Abigail Fillman is a 2007 graduate of the Temple University School of Law
and specializes in Criminal Defense, Insurance Defense and Family Law at Weber Kracht and Chellew.

This blog is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Filed Under: Constitutional Rights Tagged With: Constitution, Constitutional Rights, Criminal Defense, Miranda Warning, Mirandize, search warrant, Terry Frisk, warrantless search

This Week at Weber, Kracht and Chellew

September 26, 2014 By WKCLawBlog

Weekly Wrap-up image

Here’s a wrap-up of the week’s blog posts gathered for your coffee reading:

We got to know our attorney, Abigail Fillman, who also provided Part 1 of a blog series called,  “I Know My Rights!” Ok, So What Are They?

Our #ThrowbackThursday (#TBT) moment on social media was a look back at our Kids Voting in November 2013. We’ll have more information on the 2014 edition soon.

Are you ready for the Perkasie FallFest 5K? Perkasie Olde Towne Association and Perkasie Borough are teaming up to bring double the fun to the annual FallFest. Read all about it here.

Keep up with all Weber, Kracht and Chellew news by checking this blog, liking us on Facebook, connecting with us on LinkedIn or following us on Twitter.

This blog is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Filed Under: Community Events, Constitutional Rights, Weber Kracht Chellew Attorneys Tagged With: Bucks County Children's Advocacy Center, Central Bucks, Constitution, Constitutional Rights, Criminal Defense, Emerson College, FallFest, FallFest 5K, Insurance Defense, Miranda Warning, Mirandize, Montgomery County, Perkasie Borough, Perkasie Olde Towne Association, Upper Bucks

“I Know My Rights!” Ok, So What Are They? | Part 1 of 2

September 23, 2014 By WKCLawBlog

USConstitution

All too often, those who know very little about their constitutional rights are the first to shout, often within earshot of a judge, “I know my rights!” However, it has been my experience that few people actually know their rights. For example, despite what you may have learned from Law & Order, a police officer is not always required to read you “your rights” when asking you questions. Reading “your rights” refers to a process called “Mirandizing” according to attorneys and members of law enforcement. This process began as a result of a 1966 United States Supreme Court decision in Miranda v. Ariz., 384 U.S. 436 (U.S. 1966). Because of this decision, if you are subject to a custodial interrogation you must be advised that:

1. You have the right to remain silent and anything you say can be used against you.
2. You have a right to an attorney and if you cannot afford an attorney one will be appointed.

A custodial interrogation does not mean you have to be under arrest. Many situations can be seen as a custodial interrogation when you are not under arrest. Conversely, many situations where you may be questioned do not rise to the level of a custodial interrogation and officers are not required to “Mirandize” you.

What happens if you are subject to a custodial interrogation and officers do not “Mirandize” you? Well, of course the case gets dismissed against you, right? WRONG! If it is determined you should have been “Mirandized” and you were not, the court will most likely instruct the prosecution that any statements you gave at the time you should have been “Mirandized” cannot be presented to the jury. So, that piece of evidence is out. If a witness saw you shoot someone and your fingerprints are on the murder weapon, you should not hang your hat on “knowing your rights” if you argument is that police took your statement without reading you your rights. It won’t matter.

Next week: Part 2 of “I Know My Rights!” Ok, So What Are They?”

Abigail Fillman is a 2007 graduate of the Temple University School of Law
and specializes in Criminal Defense, Insurance Defense and Family Law at Weber Kracht and Chellew.

This blog is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Filed Under: Constitutional Rights Tagged With: Constitution, Constitutional Rights, Miranda Warning, Mirandize

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