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Mark Olberding April 29, 2009

Search: The general rule is that in order to search a person’s house, property, vehicle or person, law enforcement must have first obtained a search warrant supported by probable cause and signed by a neutral judge. There are exceptions to the search warrant requirement, the most common of which is consent.

Law Enforcement often uses the “knock and talk” routine to try and get a person to consent to a search.  An individual has the absolute constitutional right to refuse consent to search and can require law enforcement to first obtain a search warrant if they have enough evidence. Refusal of consent may not be used against the person to get a search warrant or in a future criminal prosecution, if any.  Under no circumstances should a person consent to a search, even if law enforcement tells you that “they can just get a warrant”.  Probably they can, however, maybe they cannot.  Why make it easy for them?

5th Amendment: The 5th Amendment to the United States Constitution provides that an individual cannot be forced in any criminal case to be a witness against himself. You have the right to remain silent when questioned by law enforcement. This right to remain silent may be invoked at any time, even if you have already answered some questions.

Miranda: In the United State‘s Supreme Court case of Miranda v. Arizona the Supreme Court set forth an additional protection for individuals arrested for a criminal offense. This protection is commonly referred to as the “Miranda warning.” This warning must be given by law enforcement prior to interrogating a suspect after they have taken him/her into custody. It warns the individual prior to questioning that anything they say in response to questioning by Law Enforcement can and will be used against them in the criminal prosecution and that they are further entitled to the assistance of an attorney and to have the attorney present during any questioning.

This warning does not have to be read to all individuals who are arrested and law enforcement’s failure to read this advisory does not automatically result in dismissal of the charge(s). If the court finds that this rule has been violated, the statements obtained during the questioning are merely held to be inadmissible at trial in most circumstances.

Right to Attorney: An individual has the constitutional and statutory right to have an attorney present during any Law Enforcement initiated questioning. The suspect cannot be required by law enforcement to answer questions unless counsel is present if the request is made. In fact, once the request for an attorney is made, law enforcement may not ask any more questions from the defendant regarding that charge. Once charges are filed the individual also has the right to be represented by counsel during the court proceedings. If the individual cannot afford to retain private counsel, he/she has the right to request that counsel be appointed at State expense.