Watching cop shows, movies, and reading mysteries got me into wondering about “due process” and such:
How come in TV & movies, whenever a cop asks a suspect to take a ride downtown for questioning, it seems like the suspect always cooperates and starts talking without council? Is that realistic?
a) Don’t you have the right to decline the request to “go downtown”? Or, even decline to talk right there and then?
b) Don’t you first have the right to have an attorney present when you do talk to the cops?
c) Do the cops only have to read you your rights once you are actually charged of doing something illegal?
Hope I never find myself with a need to know!
“They’re coming to take me away ha-ha, ho-ho, hee-hee, to the funny farm where life is beautiful all the time… :)” - Napoleon IV
Yes to the former, though the cops can then take you in anyway.
I believe that you have the right to tell a cop, “Not now, I’m busy,” though they will likely bring up the first part of this question as an option, so there you go.
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Yes.
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Yes. Until you are charged with something, you don’t have them read to you.
Now, let’s see how I did when the lawyers come calling…
Very. Many suspects, especially those that are guilty, believe they can fool the police into thinking they’re innocent by appearing to cooperate.
Of course.
The police are perfectly free to ask you questions, or even ask you to go downtown to answer the questions. But you’re perfectly free to disregard their questions and go about your business.
The moment the police restrain you against your will, a seizure has occurred. The Fourth Amendment provides that no unreasonable seizures are permitted.
In general, the police must possess “probable cause” in order to seize you. This is, the information in their possession at the time of the seizure must show that it’s likely a crime has been committed, and likely that you are the perpetrator of the crime. If they have that probable cause, they may apply for a warrant, or in certain situations arrest you without a warrant, and take you downtown against your will.
Without probable cause, all they may do is ask you to go voluntarily. And you may refuse.
The police may briefly detain you to investigate a crime. This would not involve a trip to the station house, so I won’t go into the “reasonable and articulable suspicion” standard required here.
Yes. But the cops may not have to tell you of this right. See below.
The cops don’t have to read you your rights at all, even if they charge you, send you to trial, and you’re convicted.
However, they do have to read you your rights if you’re in a custodial interrogation and they wish to question you.
What’s a custodial interrogation? Well, if you’re in a situation in which a reasonable person would not feel free to leave, then you’re in custody. If the police question you, that’s a custodial inetrrogation.
So - let’s say the cops invite you to come down to the station house to discuss the arson of your business. You sit down in a conference room, right next to the open door. The cops tell you they’re happy you came in, and remind you you’re free to leave at any time. They offer you a cup of coffee, and begin to talk about the arson. They tell you that they have a video of you buying six cans of gasoline, and that two of your beighbors saw you running out of your shop in the middle of night night, just before it burned. Tearfully, you confess that you burned the shop.
They never read you your rights! Is this a problem?
Almost certainly not - you were never in custody, and so the Fourth Amendment never came into play.
On the other hand, suppose you come down, and they put you in a room and lock the door. A cop tells you that you’re not leaving until they get some straight answers, and he doesn’t care if it takes all night. He tells you aboubt the video and the eyewitnesses, and you tearfully confess.
In that situation, your confession would not be admissible against you. No reasonable person would believe he was free to leave after a cop told him he couldn’t go. You were thus “seized” for Fourth Amendment purposes, and Miranda requires that you be read your rights.
This doesn’t mean you can’t be charged with the crime, by the way – it just means that your confession, and all the evidence derived from that confession, is inadmissible against you. They can still bring you to trail and use the video and the neighbors against you.
Washington State addendum, specific to post-arrest treatment of juveniles:
All bets are off.
You can be held for 72 hours without being arraigned, speaking to an attorney, or seeing your parents. You can be questioned outside the presence of your attorney or parents (though this would be obvious grist for appeals, it is routine practice).
If you’re a juvenile, you don’t get the customary local telephone call. In fact, there is no requirement that the police contact your family if you are arrested.
The police department (at least in Chelan County) allows you to speak with a priest or chaplain at your request (remember, you can’t see your Mom or your lawyer).
Sound like I’m personally offended? Well, yes I am. Some days, it feels like Mexico here.
More germane to the topic; the ACLU publishes a “bust card” that advises you to go with the flow and keep your mouth shut. These were pretty handy around Seattle last December.
I’m confused, though.
I’m not one savvy in the law, but isn’t there something called a writ of habius corpus? I thought the police cannot detain you for more than 24 hours without you being charged?
But, I am not sure if this is a writ is Federal law, or what…? Maybe someone can enlighten me on this.
“They’re coming to take me away ha-ha, ho-ho, hee-hee, to the funny farm where life is beautiful all the time… :)” - Napoleon IV
Here you go. The link includes instructions on how to download the card.
The text:
www.aclu.org includes a lot of information on any number of civil liberties topics, and if I may be so bold as to put in a plug for my own message boards, www.aclu.org/discuss.
I have a question sort of along these lines. Let’s say one has been arrested for a crime. We’ll assume for the sake of argument that all the constitutional niceties have been met and one has remained silent and retained counsel. While in custody one is linked to a second crime and the police/DA decide to charge one. Is one re-arrested or just informed of the new charge? Let’s say no decision on charges has been made. May the police question one about the second crime? Do the police have to re-read one one’s rights? Does one’s lawyer have to be present for the second matter? In other words, how long does the reading of one’s rights last? What if one is detained and released then later re-detained? Does the previous rights-reading still hold? I think I know most of the answers already but I want the str8 dope.
