Nothing on this page is legal advice. Only an attorney can give you legal advice.
I am not an attorney and therefore none of my writings or opinions are, or should be considered legal advice. My writings and opinions are solely based upon my own academic study and life experience as a police officer, private investigator, expert witness, and tenured college professor. If you are currently involved in a criminal or civil action, you should consult with an attorney as soon as possible.
What does the Miranda Warning really mean, and why is it important to me?
The Miranda Warning is a brief, but very important advisement of your constitutional rights under the 5th and 6th Amendments. Typically, individuals are advised of their Miranda Warning at the time of their arrest, but not always. Sometimes police officers never advise a suspect in custody of their Miranda Warning, even though they are clearly under arrest. A police officer is only required to advise you of the Miranda Warning if they intend to question you in custody after placing you under arrest.
A typical Miranda Warning reads as follows:
1. You have the right to remain silent.
The constitutional basis of this right is found in the following clause from the 5th Amendment: “nor shall be compelled in any criminal case to be a witness against himself,”
My opinion is that no one should ever surrender their right to remain silent. The less someone says to the police, the better. There are only three items of information anyone is required to provide police, as follows:
1) Your true and legal name
2) Your current address
3) Your true date of birth
If you are being questioned by a police officer, you are under no legal obligation to provide any additional information other than your name, address, and date of birth.
2. If you give up the right to remain silent, anything you say can and will be used against you in a court of law.
My opinion is it is always in your best interest to make no statements whatsoever to police. Making statements to police without first consulting an attorney is foolish and rarely if ever benefits a suspect, regardless of what any police officer or detective may tell you. Furthermore, nothing you say is “off the record.” Any incriminating information you provide or admissions you make to police will certainly be used against you at trial.
3. You have the right to speak to an attorney and to have an attorney present with you while you are being questioned.
“The constitutional basis of this right is found in the following clause from the 6th Amendment: “and to have the Assistance of Counsel for his defense.”
My opinion is that you should never submit to a police questioning, or answer any of their questions without first consulting with an experienced criminal defense attorney.
4. If you cannot afford to hire an attorney, one will be appointed to represent you before any questioning if you wish.
My opinion is you should always attempt to privately retain an experienced criminal defense attorney. You get what you pay for in the criminal justice system. However, any attorney is better than no attorney.
5. You can decide at any time to exercise these rights and not answer any questions or make any statements.
Again, my opinion is you should never answer any questions a police officer poses to you if you are a suspect in a crime or criminal investigation without first consulting with an attorney and having your attorney present.
What are Guilt-laden Facts?
Guilt Laden Facts are the cornerstone of Probable Cause. These are behaviors or actions that create real suspicion in a police officer’s mind that an individual is or may be involved in a crime. A brief list of Guilt Laden Facts includes the following actions or behaviors:
3. Visible injuries
4. Lying to police
5. No identification
6. Hiding from police
7. Running from police
8. Loitering & Prowling
9. Escaping from police
10. Wrong place, wrong time
11. Firearms without a license
12. Unusual tools or implements
13. Refusing to answer police questions
14. Unusual clothing for weather or season
15. Refusing to comply with reasonable requests
What is Special Knowledge?
Special Knowledge defined as that body of information or knowledge that an individual officer has acquired in the course of their education, training, police and life experience.
- The equation for Reasonable Suspicion: Guilt Laden Facts + Special Knowledge = Reasonable Suspicion
What is Reasonable Suspicion?
Reasonable Suspicion is the perception or belief, based upon direct observation of guilt-laden facts or special knowledge that criminal activity is or may be afoot.
- A police officer must be able to verbally articulate Reasonable Suspicion to lawfully stop, detain and investigate an individual for a crime or traffic infraction.
- Based upon Reasonable Suspicion, a police officer can detain and investigate a suspect for approximately 30 minutes, or as long as the investigation is ongoing.
What is Probable Cause?
Probable Cause is those sets of facts or circumstances that would lead a reasonable and prudent person to believe that a crime has been committed or is about to be committed. It is more than mere suspicion but less than absolute certainty.
- A police officer must be able to verbally articulate Probable Cause to lawfully arrest an individual for a specific named crime.
- A police officer must be able to articulate Probable Cause to secure a search or arrest warrant from a judge or magistrate.
What is the Fourth Amendment and why is it important to me?
The Fourth Amendment: “The right of the people to be secure in their person’s, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the places to be searched, and the persons or things to be seized.”
- The Fourth Amendment is the constitutional safeguard that protects all individuals from unreasonable, arbitrary, capricious, or warrantless searches and seizures (arrests) by police officers of our person, automobiles, homes, businesses, luggage, possessions, or other private property.
What is the Fifth Amendment and why is it important to me?
The Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
- The Fifth Amendment guarantees our right to refuse to answer any and all police questions.
- The Fifth Amendment guarantees our right to due process of law.
- The Fifth Amendment guarantees our right to not be brought to trial twice for the same criminal charge if we’ve been previously found “Not Guilty” by a judge or jury.
- The Fifth Amendment guarantees our right to be paid a fair price for any private property seized by the government for public use.
What is the Sixth Amendment and why is it important to me?
The Sixth Amendment is: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
- The Sixth Amendment guarantees our right to a speedy and public trial by a jury of our peers.
- The Sixth Amendment guarantees our right to be informed of the charges against us.
- The Sixth Amendment guarantees our right to know and confront the witnesses against us.
- The Sixth Amendment guarantees our right to subpoena witnesses to court and have them testify.
- The Sixth Amendment guarantees our right to be represented by an attorney at all times.
What is the Eighth Amendment and why is it important to me?
The Eighth Amendment is: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
- The Eighth Amendment guarantees our right to “reasonable” bail while awaiting trial.
- The Eighth Amendment guarantees our freedom from excessive fines for crimes or infractions.
- The Eighth Amendment guarantees our right freedom cruel and unusual punishment.
What is “The Force Continuum” and why is it important to me?
The Force Continuum is the progression of physical and verbal force or coercion a police officer is required to observe when attempting to arrest a non-compliant or resistant suspect, as follows:
1) Uniformed officer presence
2) Verbal Interactions
1) A police officer should identify themselves.
2) A police officer should provide information to the suspect that their actions are unlawful.
3) A police officer should ask the suspect to stop what they’re doing.
4) If the suspect refuses to stop, a police officer should issue a lawful order to stop.
5) If the suspect refuses to stop, a police officer should issue an arrest warning to the suspect.
6) If the suspect still refuses to comply, a police officer should inform the suspect they are under arrest.
3) Call for back-up officers.
4) Attempt soft-hand control.
5) Employ a Taser or chemical agent.
6) Employ hard hand control / joint manipulation / pain compliance.
7) Employ baton strikes to the arms or legs only. Avoid the head, neck, groin or spine as blows to this area are considered deadly force.
8) Employ less-lethal munitions if available and appropriate.
9) Employ firearms and/or another form deadly force if available and appropriate.
Use of Force Factors & Considerations
The “Totality of the Circumstances” governs all police actions in use of force scenarios. The “Totality of the Circumstances” includes any and all “Special Knowledge” a police or corrections officer may have regarding the person who is threatening or menacing them.
In addition, all use of force scenarios require police officers and private citizens to consider the following circumstances before and immediately after using force, especially deadly force, against a person menacing or threatening them or another person with death or great bodily harm:
1) Ability: Does the suspect or person threatening or menacing you have the ability to cause you death or great bodily harm through their superior physical prowess or the possession and/or use of a weapon?
2) Opportunity: Is the suspect or person threatening or menacing within range or proximity of you to assault you or use their weapon against you?
3) Imminent Jeopardy: Are you in fear for your life or the life of another person?
4) Preclusion: Is there any way to avoid using force in this situation, to include retreating from the situation if possible?
5) Render Aid: The first and foremost responsibility of all law enforcement and corrections officers is to render aid. If force is used by a police/corrections officer or private citizen against someone menacing or threatening them or a third person with death or great bodily harm, and an injury results to the threatening or menacing person, the officer and/or private citizen must render first aid to the injured party, or summons the police and emergency medical personnel to the scene if they are a private citizen.
6) Proportionality: The use of force utilized to effect an arrest or in self-defense must be proportionate to the crime that has been committed. In addition, the use of force should cease immediately when any of the following behaviors or actions are observed by a police or corrections officer, or private citizen:
The suspect or menacing person stops advancing.
The suspect or menacing person surrenders.
The suspect or menacing person falls to the ground.
The suspect or menacing person runs away or retreats