Criminal Law Blog on Lawyers.com

If you are detained by police, either during a traffic stop or at your home, you need to remember that you have certain rights that police should not violate. You should be aware of these rights before an incident occurs, so that you can follow up any violations of your rights with the appropriate legal action.

Remain Silent

If the police come to your home, you have the right to remain silent, even before your Miranda rights are formally read. You don’t have to tell officers anything beyond your name, and even that can be omitted if, for some reason, you think it might incriminate you. Anything you say to the police can be used against you, by giving them an excuse to arrest you or a prosecutor to later convict you based on statements you made at the scene.

If you are stopped by police while driving, you have to provide your driver's license, insurance card, and registration when asked, but you still don't have to answer any questions other than your name. While you may be arrested for refusing to provide your name, so long as you claim the right to remain silent because you name could incriminate you, you can use that claim as part of your defense later on.

Search and Seizure

You do not have to consent to any search of yourself, your house, or your car without being shown a properly-served search warrant. Giving police permission to search because you have “nothing to hide” often backfires, as anything they then seize can and will be used in court against you. The police can demand you allow them to “pat down” your clothing because they suspect you have a concealed weapon. In that case, don’t resist, but state clearly that you don’t consent to this or any further searches.

If police claim that they have “probable cause” to search your home or car, again make sure you state for the record that you don’t consent to the search. The police have to provide you with a receipt for anything they take from your home or car. Your lawyer can later use your stated refusals to have anything found during ensuing searches thrown out of evidence as the “fruit of a poisoned tree.” Also, it isn’t legal for police to arrest you for simply refusing to consent to a search – if they do, that could be grounds for dismissal of any case that arises from your arrest.

Are You Under Arrest?

You have the right to know if you are under arrest and, if you are told yes, you have a right to know why. Technically, if the officer says you are not being detained, you are free to go. However, attempting to flee even an illegal traffic stop could get you promptly arrested, so it is better just to note the officer’s response and report it to your attorney later on.

If you are told you are under arrest, you immediately have the right to contact an attorney or to have the court appoint a lawyer to assist you. Again, don’t make any statements or sign anything before consulting with the attorney.

If you feel that your rights have been violated while detained by police, you can file a written complaint with the police department's internal affairs division or civilian complaint board. Your lawyer can also follow up with claims or a lawsuit under certain circumstances.

Article provided courtesy of the New York City criminal defense Law Office of Richard P. Lawson, 866-224-0380.