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The Dude Wants You To Know Your Rights!

I am consistently amazed at the typical lack of knowledge about Constitutional Rights when I am talking to my fellow citizens. This absence of knowledge crosses all age, sex, race and other demographic lines. It is even more disappointing to experience that those with criminal records also know so little about these protections. Whether it is college graduates or your grandmother we should all have a grasp of our Constitutional protections and exactly how they apply to each of us.

The Bill of Rights contain what we generally think of when we consider our “criminal” rights. The Miranda Rights that we hear about on television and in movies address many of these rights. So it is a good idea to try to remember the statement that we hear police officers reading to suspects when we are watching a police drama.

  1. You have the Right to Remain Silent (5th Amendment);
  2. Anything you say can be used against you; (extension of the 5th Amendment)
  3. You have the right to have an attorney present before and during the questioning; (6th Amendment)
  4. You have the right, if you cannot afford the services of an attorney, to have one appointed, at public expense and without cost to you, to represent you before and during the questioning. (6th Amendment) and
  5. You may terminate the interview at any time you wish. (5th Amendment)

The other important Amendments are the 1st and 4th Amendment Rights. The First Amendment relates to your freedom of speech and actions related to your speech. The Fourth Amendment allows you to be free from unreasonable searches and seizures. The 4th Amendment applies to person, vehicle and home searches and can extend to workplace and educational locations as well. You need to be aware of the following information in order to stand behind the protection of your rights.

The First Amendment comes into play if you are expressing your feelings, opinion or thoughts and the State attempts to silence you from voicing them. This protection is generally not seen in a criminal context unless you are accused of using profanity or if you are at a protest and the police attempt to silence you or stop you from assembling. The First Amendment in generally enforced through an injunction or as a defense to some allegation of improper speech.

The Fourth Amendment is probably the most actively reviewed by the courts because of the volume of drug seizure cases and we are beginning to see a great increase of computer search cases. With the recent release of information about the massive amount of government spying on our phone calls, texts and emails you can expect even more 4th Amendment issues to surface. The bottom line is that the police cannot search or seize your person or property without a warrant or an exception to the warrant requirement.

It might be a good time to mention the various types of police encounters you may experience as a citizen. The first is when a police officer has what is termed “reasonable suspicion” to conduct a personal contact with a citizen. A police officer can always just walk up and start talking to you in public but you always have to option to ignore him and just walk away.

Reasonable Suspicion has been defined as – a standard used in criminal procedure, more relaxed than probable cause, that can justify less-intrusive searches. For example, a reasonable suspicion justifies a stop and frisk, but not a full search. A reasonable suspicion exists when a reasonable person under the circumstances, would, based upon specific and articulable facts, suspect that a crime has been committed.

When I was a police officer, we were having a rash of nighttime auto burglaries and I saw two teenagers out after midnight in the parking lot of an apartment complex for elderly persons. I had reason to believe that they might be involved in auto burglaries so I had the right to stop them and find out what they were up to. I had the right to frisk them for weapons for my protection and to check to see if they had visible burglary tools in their possession. If my interview with them gathered evidence of criminal behavior just short of arrest ability then I would proceed into the area called “probable cause.”

Probable Cause has been defined as – sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. (*note: Texas does not have a statutory definition of probable cause).

The second part of the first sentence above describes Probable Cause for obtaining a search warrant – sufficient reason based upon known facts to believe that certain property is connected with a crime and that the location to be searched is likely to be where that property is located. Remember that the officer must have the legal authority to continue an encounter and must develop probable cause to arrest or search you once the reasonable suspicion level is exceeded. But it is important to know that an officer can skip right to a probable cause determination if the facts support it.

With all of the above in mind, you can know that the police can just approach you for no reason, but you can walk away. If the officer has reasonable suspicion to detain you and investigate whether you are involved in a crime, he can prevent you from leaving. If he develops probable cause to search or arrest you, then you may not leave and will likely be placed under arrest. So, we need to discuss what you can do to avoid contributing to an arrest decision.

Most of us want to be friendly and we like to think that the police officer talking to us is not out to hurt us or to arrest us. You need to stop thinking like that, because if a police officer is interviewing you, he is doing so to either eliminate you as a suspect or he is building a case against you. Also, you must remember that in order to convict someone in a Texas courtroom, the case must be proven beyond a reasonable doubt. A reasonable doubt in Texas has no definition, but it is the highest level of proof that a jury will measure. Beyond a reasonable doubt is much higher than probable cause, so just because an officer is justified in arresting you doesn’t mean you will be convicted at trial.

In a DWI investigation today the level of proof to make a probable cause arrest is very low and would surprise most citizens. We are seeing a lot of these cases resulting in Not Guilty verdicts because a lot of citizens are not willing to rubber stamp this standard. This is why it is so important to know your rights and how to protect yourself from walking into a trap set by the DWI task force officers.

First, ask yourself about the reasonable suspicion level – did the officer have the legal right to stop my car to begin with? Usually, this will have to be dealt with by a defense attorney in the courtroom. The attorney has to know the traffic code and all case law that applies to that type of traffic stop or police encounter. The attorney has the duty to file a Motion to Suppress the traffic stop and all evidence that resulted from that stop. It is always helpful if the client can remember the facts that occurred during the stop.

We assume that in today’s video environment, the police officer will video tape the traffic stop but that can be a mistake. In many locations, the police do not have video equipment or they don’t have working equipment. We also see many video tapes that malfunction, don’t have good audio or somehow get erased. We have a great number of occasions where the police officer for whatever reason takes the suspect ‘”off camera” during the encounter. You might consider audio or video taping the stop with your smart phone or have a passenger do that for you. It is always helpful when we have a client bring in a video that contradicts the police version of what happened during the arrest.

During the DWI investigation the things I ask my clients to remember are to invoke their right to remain silent, tell the officer they want to speak to their attorney before continuing, refuse all tests and to never agree or consent to any searches of their vehicle, person, breath or blood. This limits the evidence that can be misconstrued against you in a courtroom.

Remember that the 5th Amendment gives you the right to remain silent but only if you invoke that right. An a recent U.S. Supreme Court decision of a Texas case, Salinas v. Texas, the nation’s highest court stated that in some instances a person’s silence can be introduced in court as evidence of guilt. As shocking as that result sounds, the court based it on the facts that Salinas was not under arrest, had been answering questions but then stopped when asked about specific criminal behavior. The bottom line from that case is that I now tell clients that if a police officer asks them questions they need to invoke their right to remain silent and ask for their attorney in the same sentence. This way you never started answering their questions and you intelligently ask for your attorney’s assistance.

I am often asked why I tell people to refuse to answer police questions. When I was a police officer we were taught how to take advantage of the average citizens desire to cooperate with the police. Combine that with the fact that most people arrested for DWI have never been arrested before and consider themselves good citizens and you have a person setting themselves up to be arrested. If an officer smells any odor of alcohol on your breath he will ask “have been drinking?”, “where are you coming from?”, “where are you going?”, “how much have you been drinking?” and then will tell you he needs to make sure you are safe to drive.

You are about to be led down the DWI agility test road to jail so don’t cooperate with the free ride. In Texas, once an officer asks you out of the car to take his tests you are probably going to jail. If you attempt the tests you will only give the officer more probably cause to arrest you. If you refuse to take the tests that is considered probable cause and you will be arrested. If you then refuse to take the breath or blood test, there is a good chance you will have your blood drawn by warrant. By invoking your right to remain silent and asking for legal counsel you at least stop the damage from mounting.

My best advise to clients is that if you have been drinking and decide to drive you must assume that you will be stopped by the police and investigated for a DWI. Only if you have no odor on your breath, no bloodshot eyes, no slurred speech, and perfect balance will you be in good shape to end up at home. Remember the “drink, drive, go to jail” program and the MADD and government programs against driving drunk and think about what a DWI conviction will do to your future. And lastly, if you fail to stand up for your rights, you will lose them and once lost there is no getting them back.