arrest and interrogations..

[Bigkarch]

Arrests and Interrogations FAQ...page one

TAKE TIME TO READ THIS....IT MAY BE BORING AND LONG, BUT IT IS YOUR RIGHTS AND INFORMATIONAL.........THKS

An arrest occurs when a police officer armed with an arrest warrant utters the magic words "you're under arrest," or when a police officer significantly restrains your freedom of motion. The restraint must be more than a mere detention on the street (discussed above). Although in most situations the police will take you to the police station for booking (photographs and fingerprinting), it is also possible for an officer to arrest and book you at the crime scene, and then release you when you give a written promise to appear in court at a later time. After the police arrest you, they will often question you in order to find out more about the crime, your role in it and whether there may be other suspects. There are several Constitutional protections that you may invoke during police interrogations.

Can a person who is charged with a crime be forced to give bodily samples?

Yes. You might think that being forced to give bodily samples-such as blood, hair or fingernail clippings-is a violation of the U.S. Constitution's protection against self- incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the Constitution.

When do the police need a warrant to make an arrest?

As long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.

The exception? There are few places where the adage "a man's home is his castle" still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a nonserious offense-such as a simple assault-and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.

How do the police obtain an arrest warrant?

An officer must present sworn evidence to a judge that a crime has occurred and that the police have probable cause to believe that the crime was committed by the person they want to arrest. If the judge agrees, she will issue a warrant. The police are then entitled to seize the person wherever they can find him.

If the police make an illegal arrest, is the arrested person set free?

No. But if a search of the person or her immediate surroundings is conducted during the arrest and turns up incriminating evidence, the evidence may be kept out of the person's trial on the grounds that it is "fruit of the poisonous tree"-that is, the evidence was found as the result of an improper arrest. Also, if the illegally arrested person makes any statements to the police after being arrested, the statements may not be used as evidence. This is true whether or not the arrested person was "read their rights." (See below.)

If I'm arrested, do the police have to "read me my rights?"

No. However, if they don't read you your rights, they can't use anything you say as evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by T.V. police immediately upon arresting a suspect:

You have the right to remain silent.
If you do say anything, what you say can be used against you in a court of law.
You have the right to consult with a lawyer and have that lawyer present during any questioning.
If you cannot afford a lawyer, one will be appointed for you if you so desire.
If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)

[Bigkarch]

page two........



It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street to question them about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.

Will a judge dismiss my case if I was questioned without a Miranda warning?

No. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate a suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements.

What's the best way to assert my right to remain silent if I am being questioned by the police?

If you're taken into custody by the police, you don't have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:

I want to talk to an attorney.
I won't say anything until I talk to an attorney.
I don't have anything to say.
I don't want to talk to you anymore.
I claim my Miranda rights.
If the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. As a result, anything you say after that point -- and any evidence gleaned from that conversation-will not be admissible at your trial.

How heavy handed can the police get when asking questions?

Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. The days of the rubber hose, protracted grilling under bright lights and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the information cannot be used by the prosecutor at trial. In addition, under the rule known as "the fruit of the poisonous tree," any evidence that the police obtain as the result of a coerced statement is equally inadmissible.

Defendants often claim that police officers coerced them into talking. And it's just as common for police officers to say that the defendants spoke voluntarily. If the police physically coerce a defendant into talking, the defendant can support his coercion claims with photos of marks and bruises. But actual police brutality is unusual, and a defendant cannot usually offer independent evidence to support his claims of psychological coercion. Judges, believing that defendants have a greater motivation to lie than do police officers, usually side with the police and conclude that no coercion took place.
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[macbee]

"In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements."

This is WRONG!!!! The "fruit of the poisonus tree" doctrine only applies to 4th Amendment violations (evidence found through an illegal search or siezure)(Wong Sun). The Supreme Court in Tucker and Pattane held that evidence found because of statements gathered in violation of Miranda can be addmitted. A violation of Miranda/5th Amend. only prevents the actual statement from being used at trial, not the fruits (evidence derived from the statement).

[mxim]

i've been arrested about 5 times in my life; i'm serious,not bragging. bottom line,keep your mouth shut and wait for an attorney. its that simple. i admit it can be stressful and you might spend a night or 2 in county lock up but thats part of the program. you want to enbark on a criminal career,be prepared to do the time. its no joke!

[Bigkarch]

not necessarily bro....first Miranda is not equated with the 5th amend...it used to be by the 9th circuit..but has been downed by the US supreme court..you must be a student bro..not a practicing attorney....games are played by attorneys..it all boils down to articualation in the report..btw have you ever tried a case given your argument...

Originally Posted by macbee

"In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements."

This is WRONG!!!! The "fruit of the poisonus tree" doctrine only applies to 4th Amendment violations (evidence found through an illegal search or siezure)(Wong Sun). The Supreme Court in Tucker and Pattane held that evidence found because of statements gathered in violation of Miranda can be addmitted. A violation of Miranda/5th Amend. only prevents the actual statement from being used at trial, not the fruits (evidence derived from the statement).

[Bigkarch]

sorry bro, but given your post, you are a new student of law..never been in court and is intelligent...you want to get into the court system...you base your post only on studies and case history..

Originally Posted by macbee

"In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements."

This is WRONG!!!! The "fruit of the poisonus tree" doctrine only applies to 4th Amendment violations (evidence found through an illegal search or siezure)(Wong Sun). The Supreme Court in Tucker and Pattane held that evidence found because of statements gathered in violation of Miranda can be addmitted. A violation of Miranda/5th Amend. only prevents the actual statement from being used at trial, not the fruits (evidence derived from the statement).

[mxim]

i've been through the system. i do'nt care what law school you graduated from,a guy who gets arrested just gives his name and address;thats it!!!! i cannot understand for the life of me how you would not agree with that. you mean to tell me you would recommend to someone who was just arrested to answer questions from cops? c'mon!!! i find that hard to believe. my last post basically said to just keep you mouth shut and eventually you will see a judge and bail will be granted. of course there are exceptions,severity of crime,flight risk;especially with the fed system. bottom line,NEVER ANSWER ANY QUESTIONS!
mxim

[J DUB]

Karch wasn't talking to you mxim. But yes, your advice is good. You are NEVER better off talking to the cops before you have consulted an attorney, period. Lots of people know this and then get scared when the time actually comes, but you have to always remember do not talk to them. And yes, they are extremely aggressive in trying to get you to talk to them and are pretty much experts in making people shit themselves, but you absolutely cannot talk to them I don't care if they threaten to take you to jail right then.

[Bigkarch]

easy Mxim..post was not directed to you.....take a chill pill