Distinguishing Searches, Seizures and Miranda Rights

This article briefly summarizes three very important areas of criminal law. Clients will often ask legal questions about the issues involved in (1) searches, (2) arrests, and (3) Miranda Rights (the right to remain silent). Clients often ask questions like(1) can a police officer search me for no reason, (2) do I have to consent to a search, and (3) does it matter that the police officers didn’t read me my rights?

Probable Cause to Search

The Fourth Amendment to the U.S. Constitution provides a right to be free from unreasonable searches and seizures (an arrest is considered a seizure.) Therefore as a general rule, law enforcement agents must have a warrant or probable cause to search or arrest a person.

However, there are many exceptions that allow police officers to search a person without probable cause. These include: (1) being on probation or parole, (2) limited pat-down search to ensure police officer safety, (3) and consensual searches.

Consenting to a Search

There is no law which requires a person to consent to a search. However, you should be aware that you may have already consented to a search or that you may need to trade consent. One such exception includes being on probation or parole – which subjects such a person to being searched at any time and place. Another exception is being in certain places. For example, entrance into an airport or jail facility provides consent to search by law enforcement agents. You can always refuse to be searched in these circumstances, however, you will be denied the opportunity to be free from incarceration and denied entrance into the airport or jail facility, respectively.

Contrary to popular belief, refusing to consent to a search is not probable cause to search. This is an area where many people, in an attempt to be law-abiding citizens, waive their rights to privacy. You should politely inquire why the police officer wishes to search for, so that you can evaluate whether his or her request is reasonable by using common sense. If the officer’s request does not seem reasonable, politely decline that request.

Miranda Protects Only Statements

There is a lot of confusion surrounding the meaning of Miranda and the 5th Amendment right to remain silent. Miranda basically states that a person has a right to remain silent, and once arrested, the police must inform you of that right against self-incrimination and they must not elicit any incriminating statements from you. It should be noted that if a police officer fails to give this warning, only statements made by an accused after an arrest will be excluded from use as evidence. Physical evidence is not a statement and not within the scope of Miranda.

However, law enforcement agents will commonly ask questions and elicit incriminating statements from a person prior to actually arresting that person. Thus, Miranda protections are inapplicable. So when faced with questioning by police officers, you should ascertain whether or not you are under arrest. If you are, obviously do not make any statements. If you are not under arrest, politely inform the police officer that you are in a hurry and must leave.

September 8, 2007 by Quincy Hoang.


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