Your Legal Rights


Miranda & the Fifth Amendment | Searches & Seizures: The Fourth Amendment

What are some of my important rights?

  1. You are presumed to be innocent and you have the right to force the prosecutor to prove any criminal accusation against you "beyond a reasonable doubt."

  2. You have a right to refuse to make any statements. If you don’t have a lawyer, ask for one.  If you have a lawyer, don’t make any statements without first talking to your lawyer. Be cautious when you send emails, text messages or written statements; I advise my clients to speak with no one about their cases — family or friends — either in person or over the phone.

  3. If you are arrested for a felony offense before an indictment is returned, you have a right to a preliminary hearing where a judge determines if probable cause exists to believe you committed the crime charged.

  4. If there is even the possibility you could be put in jail upon conviction of the offense, you have a right to be represented by an attorney at trial and to have an attorney appointed by the court if you are unable to hire an attorney.

  5. You have the right to a trial by a jury of your peers.

  6. If there is a trial, you have a right to testify at the trial. On the other hand, you cannot be forced to testify and, if you chose not to testify, that fact cannot be used against you.

  7. You have a right to use subpoenas that require witnesses to come to court and to preserve and produce evidence that supports your defense.

  8. If there is a trial, you have a right to present evidence of your innocence and to have your lawyer cross examine the state's witnesses.

  9. If you lose at trial (and in some cases if you plead guilty), you have a right to appeal your case and, if you cannot afford a lawyer, you have a right to an appointed lawyer on appeal.

Miranda and the Fifth Amendment


"I advise my clients to politely exercise their right to remain silent whenever they are questioned by the police and whenever I’m not present. Even when you think you are helping your cause, I have all too frequently found that suspects unwittingly reveal information that can later be used as evidence against them."

Criminal suspects in the United State are given a number of important rights when being stopped, questioned and searched by law enforcement officers.  In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, he or she must be advised of their Fifth Amendment right not to make any self-incriminating statements before being questioned. As a result of Miranda, anyone in police custody must be told five things before being questioned:

  • You have the right to remain silent.

  • Anything you say can and will be used against you in a court of law.

  • You have the right to consult with a lawyer and to 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.

Based upon what’s routinely depicted on television, many people expect that, as soon as they are placed into handcuffs, the police will immediately advise them of their Miranda Rights. Many people believe that, if they are arrested and not "read their rights," their case will be dismissed. Not true. If the police fail to read a suspect his or her rights, but never ask any questions, then there’s probably no harm done. If, on the other hand, the police fail to read a suspect his rights and then subsequently question him, then there’s a strong argument that the police and prosecution can't use anything the suspect says as evidence against the suspect at trial.

+ When is the Miranda Warning required?

It doesn't matter whether an interrogation occurs in a police station, at the scene of a crime, on a busy downtown street, or in your own home. If a person is in custody (i.e., “not free to leave”), the police must give a Miranda warning if they want to question the suspect and use the suspect's answers as evidence at trial.

+ When is the Miranda Warning not required?

If a person is not in police custody, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. This exception most often comes up when the police speak with someone over the phone to question him or her about a recent crime or the person blurts out a confession before the police have an opportunity to deliver the warning. The Miranda warning is also not required when the person is in police custody, but is never asked any questions other than biographical information.

+ What are the consequences of failure to provide Miranda Warning?

Without a Miranda warning, nothing a person says in response to custodial interrogation can be used as evidence against the person at his or her trial. 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 — unless the police can prove that they would have found the evidence without the suspect's statements.

Searches & Seizures: The Fourth Amendment

The Fourth Amendment: Protecting Your Privacy

"The right of the people to be secure in their persons, 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 place to be searched, and the persons or things to be seized."

The search and seizure provisions of the Fourth Amendment are all about privacy. To honor this freedom, the Fourth Amendment protects against "unreasonable" searches and seizures by state or federal law enforcement authorities. On the other hand, “reasonable” searches by government officials are not illegal. Stated otherwise, although Delaware and U.S. citizens are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. In practice, this means that, if the police have probable cause to do so, they may override your privacy concerns and conduct a search of your body and clothing, your home, garage, car, office, personal or business documents and bank account records.

What the Police ARE ALLOWED to Do

Under the Fourth Amendment to the U.S. Constitution, police may engage in "reasonable" searches and seizures.  To prove that a search is "reasonable," the police must generally show either (a) that they are legitimately acting to protect themselves, or (b) that it is more likely than not that a crime has occurred and that, if a search is conducted, it is probable that the police will find either stolen goods or evidence of the crime. Most police searches require a warrant, but there are several well established "warrantless" search exceptions:

+ Stop and Frisk Searches

A "stop and frisk" is when a police officer stops a person to question them and, for self-protection only, carries out a limited pat-down search for weapons. A police officer may stop and frisk a person if the officer has a "reasonable suspicion" that the person is engaged in criminal activity. This is an easier test for a police officer to meet than the "probable cause" standard required to make an arrest. When frisking a person for weapons, if the police feel a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance, their initial suspicion may turn into sufficient cause for a more intensive search of the person's body and clothing.

+ Expectation of Privacy

Police may search and seize items or evidence when there is no "legitimate expectation of privacy" in the items or the area to be searched. In other words, if you did not have a privacy interest in either the items seized or the area searched, then the police could lawfully seize them without a warrant. In the case of abandoned property or a discovery in a public area, no "search" occurs. In deciding whether there was a "legitimate expectation of privacy," a court will consider two things: (1) Did you have an expectation of some degree of privacy in the area that was searched? and (2) Was that expectation reasonable in our society's view?

Police may search your property without a warrant if you consent to the search. Consent must be freely and voluntarily given, and you cannot be coerced or tricked into giving it.

+ Inventory Searches

When you are being taken to jail, police may perform an "inventory search" of items you have with you. This search may include your car if it is being held by the police; the purpose of an inventory search is to make a list of all personal items inside the automobile.

+ Hot Pursuit

The police may perform a search, without a warrant, if they are in "hot pursuit" of a suspect who enters a private dwelling or area after fleeing the scene of a crime.

+ Searches Beyond the Initial Scope of a Warrant

Once a search warrant is obtained, the police may enter into the specified area of the property and search for the items listed on the warrant. Police may extend the search beyond the specified area of the property if it is necessary to: (a) Ensure their safety or the safety of others; (b) Prevent the destruction of evidence; or (c) Discover more about possible evidence or stolen items that are in plain view.

+ Search Incident to an Arrest

Police may search you and your immediate surroundings without a warrant when they are placing you under arrest. If a person is arrested in a residence, police may make a "protective sweep" of the residence in order to make a "cursory visual inspection" of places where an accomplice may be hiding. In order to do so, the police must have a reasonable belief that an accomplice may be around.

What the Police ARE NOT ALLOWED to Do

The police may not perform a warrantless search anywhere you have a reasonable expectation of privacy, unless one of the warrant exceptions applies.  If evidence was obtained through an unreasonable or illegal search, the police may not use it against you in a trial. This is called the "exclusionary rule."

The police may not use evidence resulting from an illegal search to find other evidence.

The police may not submit an affidavit in support of obtaining a search warrant if they did not have a reasonable belief in the truth of the statements in the affidavit.

The police may not search your vehicle unless you consent to the search or if there is a reasonable suspicion that the automobile contains evidence, illegal items, or stolen goods.

The police may not "stop and frisk" you unless they have a reasonable suspicion that you are involved in a criminal activity.