Everything You Need to Know About the 4th Amendment: Your Rights Against Unreasonable Search and Seizure

The Amendment IV as highlighted in the Constitution guarantees all citizens their freedom from unlawful search and seizure by law enforcement agencies.  It is the bedrock in which individuals’ constitutional rights to privacy are guaranteed.

This protects the state from interfering with the normal lives of individuals.  Lawmakers and the judiciary have put the necessary mechanisms to ensure individual rights are protected by all means.

The Fourth Admendment limits the constitutional powers of police and other law enforcement agencies to make unreasonable arrests or interfere with the privacy of the American citizens either in their homes, businesses, places of worship and even public places.  This means that even though the right to privacy is guaranteed, police may override your right to privacy and conduct a search of you, your property, and even your documents if,

  1. The search is proven to be reasonable and the police have evidence that you have committed a crime and they have a warrant, or
  2. If the circumstances justify the search without the police or other law-enforcing agencies obtaining a warrant.

What Rights Are Protected by the Fourth Amendment?

According to the Constitution, the right against unreasonable search and seizure extends to:

  1. Where law enforcement officer/officers physically apprehend a person by way of stopping or arresting, or
  2. When the enforcement officer/officers conduct searches on places or items which an individual has a right to privacy. Amendment IV protects individuals from unreasonable searches, detentions and prevents unlawful seizure of personal property that police use as evidence in criminal cases.

Application of the Fourth Amendment

In the criminal law realm, the fourth amendment is applicable in, but not limited to, the following circumstances.

  • Where you are arrested.
  • Where you are stopped for questioning by law enforcement agencies.
  • Where an individual is pulled over by police for a minor traffic offense and the police conduct a search of their cars.
  • Where law enforcement officers confiscate personal property and keep it in their possession.
  • Where law enforcement officers enter personal property such as homes to conduct a search.
  • Where law enforcement officers enter business premises to search for evidence of a suspected crime.

Where the Fourth Amendment Doesn’t Apply

The Fourth Amendment is applicable where an individual is confined to the “legitimate expectation of privacy.”  In all other cases, the law doesn’t apply because the individuals’ privacy has not interfered with.

During the determination of such cases, the attorney cross-examines the individual to ascertain that their privacy was interfered with at the time of search.  The victim must prove to the court that by the time of search they expected some degree of privacy and that the expected privacy was reasonable at the time of the search.

Typically, a police officer can carry out search or seizure only when,

  • They can provide a valid search warrant issued by a judge
  • They can provide a valid arrest warrant
  • When they can prove ‘probable cause’ with evidence that a crime was committed.

What Happens When Search and Seizure Contravene Amendment IV?

If the court finds out that the Fourth Amendment was violated during the search or seizure then all the evidence seized cannot be used to incriminate an individual.  This principle was established by the U.S Supreme Court and is widely used in such cases.  It also dictates that all of the secondary evidence that was derived from the primary evidence is inadmissible in court.

In some instances, if the case is argued properly and it proven that the search and seizure were illegal, it can lead to the dismissal of the case.

 

If a Loved One Is Accused of a Crime, Here Are the 6 Best Ways You Can Support Them

When a loved one is accused of a crime, it’s devastating to the entire family.  You might feel helpless and wish there was more you could do to support the accused person.  This is especially true if the person was falsely accused of a crime.  It can feel like the entire world has been upended.  There are things you can do to be supportive and helpful during this trying time in the accused person’s life.

Go Through the Bond Process

After an arrest, you can put up the bond money so that the accused can be released from jail.  Sitting in jail until a trial can be scary and unnecessary.  Some cases are non-bondable so check with an attorney to see if there is a bond. The bond amount will depend on the nature of the crime and the individual circumstances.   A good lawyer can get your bond reduced or if hired early enough, get a person released with no bond.

Hire a Good Lawyer

This is the most important part of the entire process. The right lawyer can make a difference between a person spending time in jail and being cleared of all charges. The lawyer will give you advice every step of the way from the time of arrest to the court proceedings. The lawyer could advise you to remain quiet during questioning, fight against certain testing or argue against parts of the investigation by the police. You might have to hire an attorney for the accused person if he or she is still in jail.  It’s the single most important decision of the whole process.

Visit the Accused

If the person is still in jail, it can help immensely if you visit him/her in jail. They could have been moved from the local holding cell in the jail to a larger facility to await trial.  It’s important to keep up their spirits and feel like all hope isn’t lost.  To know that you still love and support he or she can mean so much to the accused.  Find out what he or she is allowed to have in jail, like toiletries and, arrange the receipt of some to him or her.   In some cases, inmates aren’t allowed to take items from friends and family, but they can have money to buy items inside.

Collect Physical Evidence for the Case

You could gather evidence for the case like videos, clothing or photos. These things should be brought to the lawyer.  While you might think you can bring them to the police to prove the accused’s innocence, it’s always better to bring it to the lawyer and let him or her proceed with the evidence in the correct manner.  Once a person has been arrested, it’s hard to get the police to drop the case. A lawyer will know what to do.

Collect Documents for the Case

There might be documents that can help your loved one’s case.  Grab phone records, GPS details and financial records that might prove the innocence of the accused.  You might talk to the lawyer about what he or she needs for the case.  You might be the only one that can help with those documents.

Look for Witnesses

If you know the names and addresses of any witnesses to the event in question, you can provide this list to the lawyer.  Don’t try to contact any of the witnesses before handing their name to the lawyer.  A prosecutor could accuse you of trying to manipulate or scare a witness.  It’s best to let the lawyer handle any questioning of witnesses.

Other people might have questions or want to gossip regarding what happened.  It’s best to keep all discussions between you, your loved one and the lawyer involved in the case.

It’s vital that you support your loved one through this devastating time in his life. Be prepared for him to be angry and depressed.  It’s important that you be understanding about it.

The Things People Wish They Knew Before They Got Pulled Over for Suspicion of a DUI

Getting pulled over for suspicion of DUI is considered to be one of the most serious crimes.  This is because you not only endanger your life, but also that of other innocent road users.  However, if you have been pulled over, there are a number of things that you need to know.

This is especially  important when it comes to the legal aspects so that you can know your rights and what is expected of you to facilitate the same.  What should you do if you have been pulled over for suspicion of DUI?

So What Should I Do?

If you have been pulled over, the first thing to remember is that the criminal justice system works under the presumption that you are innocent unless you have been proved otherwise by a court of competent jurisdiction.  Do not resist pulling over as this might lead to unnecessary charges being preferred against you.

What to Remember

If you have been pulled over or not, there are three golden rules that you need to remember at all times.  The first rule is that you do not have to let the police officer access you vehicle.  If you do not want to consent to any searches, then you have absolutely every right to request that they get a warrant prior to any search.

The next important thing to know is that you do not have to answer any questions without your lawyer present.  (Except, name, address, etc.)  You do not have to do the field sobriety tests, like walking the line and touching your nose.

Once you request that your attorney be present for questioning, you should request the officer for permission to leave.  Be keen to certify that the person who has pulled you over is indeed from the relevant authorities.  This can be established by checking the badge number that is usually on the front shirt of the officer.

For safety purposes, it is advisable that you have a recording device to cover the entire process.  This should include the time when you have been pulled over and the steps that have been taken since the officer asked you to roll down your window.  This should however be done in a cautious and careful manner, preferably after notifying the officer that the events are being recorded.

 

How DUI Tests Work

In most of the cases, if you have been pulled over under suspicion of driving under the influence of alcohol of any intoxicating substances, a number of tests have to be conducted in order to establish whether you exceed the legally prescribed limit.  You might be required to provide a sample of your saliva or blood in order for this to be established.

Insist on having this done in a safe and secure manner that does not expose you to any infections or diseases. This should preferably be done in the presence of another officer.  In Arizona, if you do not give a blood, breath or urine sample you automatically lose your driver’s license for one year.  Law enforcement will get a warrant and get the sample anyway.  Best practice is to give a blood, breath or urine sample when asked.

If the law enforcement officer is male and you are of the opposite sex, then you can demand that the tests be done by an officer of the same sex.  This not only limits the chances of you being violated, but also provides you with the best chance of obtaining justice.

The Mistakes to Avoid

If you have been pulled over on suspicion of drunk driving, some of the things to avoid include:

Do not resist.  Comply with the law enforcement officer and pull over at a safe location where you do not obstruct other road users and put on the hazard lights.  Turn off the engine and wait for the officer.

Do not panic. Y ou have nothing to be afraid of.  The law is there principally to ensure that your rights are well protected.  It is important to note that whatever your situation, there is a legal mechanism in place to protect your interests.

Finally, if you need the services of a lawyer, make sure that you contact a professional and competent one.  The lawyer will be essential in ensuring that your rights are not violated in any manner and that you stand the best chance of finding justice. Any questions or concerns that you might have will be clarified by the lawyer.

If You Have Been Accused of a Crime, This Advice May Save You From Serious Jail Time

There are many times people get arrested and don’t know how to handle it.  It may be your fist experience with law enforcement.  What if you feel you’ve not committed a crime?  This is a difficult situation.  It’s important to not let a bad situation turn into a serious crime.  There is important information you need to know.

Arrest Advice

If you are arrested, it means that  law enforcement has taken you into custody because they believe you’ve committed a crime.  You are not permitted to leave the scene of the incident.  You can also be held by law enforcement or a period of time for questioning and not be arrested.

This means they believe you have valuable information concerning a crime that was committed.  It’s important to remember there is no legal requirement for you to answer questions by law enforcement. You only have to provide them with your name and address shown on the identification you provided.

Advice for Before You Hear Your Miranda Rights

Should law enforcement place you under arrest, the law requires that they read you your Miranda rights.  Reading of the Miranda rights is guaranteed under the U.S. Constitution.  If you are not read your Miranda rights, an attorney representing you can ask a judge to not use any statements you may have made to law enforcement.

This has no influence on the dismissal of a case.  It also doesn’t apply if law enforcement did not ask you any questions, but you still supplied them with information.  You need to remember whether or not your Miranda rights have been read to you.

Advice After You Hear Your Miranda Rights

It is legal for members of law enforcement to question you after you’ve been read your Miranda rights. Law enforcement is not required to provide an attorney unless you request one.  If you give up your right to legal counsel prior to being questioned, you need to realize what you’ve lost.

When a person requests an attorney, the questioning by law enforcement must stop immediately. If you continue to speak, anything you say can be used against you in court.  According to the U.S. Constitution, anyone charged with a crime is entitled to speak with a lawyer even if they can’t afford to pay for one.  It is recommended that when you are arrested that you not speak to law enforcement.  You should request to speak with legal counsel first.
Arrest Warrant Advice

If law enforcement has good reason to believe you have committed a crime, a warrant for your arrest could be issued. The warrant has to be signed by a magistrate or a judge.  An arrest warrant enables law enforcement to take someone into custody in their home.

A person may be arrested without a warrant if action is needed to stop them from escaping, destroying evidence associated with the alleged criminal activity, someone’s life is in endanger and more.  It’s important to not resist this detention or arrest.  If someone attempts to resist, they can be charged with a misdemeanor or even a felony depending on the situation.

Should you resist, law enforcement can utilize force to take you into custody.  If law enforcement believes you are a threat to cause serious injury, they can use deadly force.

Bail Advice

If you are arrested, you may have to wait months until your trial date.  Jail is not a place people want to be for months.  An experienced attorney will know how to handle a bail hearing.  The amount of your bail will be determined by a judge.

The judge will take into consideration such things as the seriousness of the crime you are charged with and your past criminal history.  Bail is an amount of money paid to a court to make certain the person charged with a crime returns for their trial. If you fail to appear for your court date any bail money paid will be kept by the court.  An arrest warrant will usually be issued for your arrest.

If you feel the bail amount requested by the court is excessive, an attorney can help you get a bail reduction hearing.  A lawyer may also be able to make a case to a judge that you should be released on your own recognizance.  This means you will not have to pay any bail and the judge believes you will return to court for your court date.

Would I Defend The Men That Robbed Me At Gunpoint?

I have been a criminal defense lawyer for over 18 years.  I dedicated my life to defending people who are charged with crimes.  I believe that I am very good at what I do.

I have had a lot of life experiences, but up until three weeks ago I had no experience of being the victim of a gun crime.  It was an ordinary Saturday and I had appointments in my office.  This was not unusual as I worked most Saturdays.  The alarm system had a low battery and it would beep every minute or so, sounding just like the door chime when someone comes into the office.  I tried to shut it off, but could not figure out how.

I had just finished signing up a new client and was sitting at my desk inputting the data in the computer for my staff.  I had my back to the door of my office and the front door of the office was left unlocked.  I heard the door chime, but thought that it was just the low battery chime.  Before I could do anything a man rushed into my office and put a gun in my face.  Another man followed close behind.   He said, “give me the cash”.  I told him that I did not have any cash that I only took credit cards.  He insisted that I had cash.  He started going through my drawers of my desk.  Finally they found the cash that I kept as emergency bond money for clients.  They took the money and tied me up with the telephone cord.  They rushed out of the office taking my cell phone with them.  I called 911 and the police were there quickly.  From my perspective they did a good job processing the crime scene.

I do not consider myself an easy target for crime.  I usually pay attention to my surroundings and have good situational awareness.  But in this case I made some mistakes.  Being in my office alone, I should have locked the front door.  That would have made a big difference.  I was not scared at any time, I was angry that I had made myself such an easy target.

After this event I thought about and have been asked about what I do for a living.  I represent some people who have done some pretty horrific things.  Much worse than what was done to me.  Many people have asked if this experience changed my thinking or approach to what I do.  The answer is no.  I am asked all the time how I can represent such horrible people.  The answer is they are not horrible people, they may have done some horrible things, but they are not horrible people.

The criminal defense attorney is the only thing standing between the police and the citizens.  Power corrupts and absolute power corrupts absolutely.   I double check the work of the police to make sure that they are not violating the rights of the citizens.  If the police do their work correctly, the people usually get convicted of something.  When a criminal gets off on a technicality, do not blame the defense attorney, blame the police officer who did not do their job correctly.  All the defense attorney did was call attention to the fact that they violated someone’s constitutional rights.

I like to describe what I do this way.  I have dozens of clients tied to railroad tracks.  In each case there is a train (the government) coming at them.  My job is to try and get them off the tracks, or slow the train down, or divert the train to another track.  In many cases all I can do is sit with them and hold their hand while the train runs over them.  In some cases this is a tragedy.  Sometimes innocent people get run over (railroaded).  In some cases the police violate their rights and I get them off the tracks even though the train should have hit them.  In some cases they only get nipped by the train.  But every day I face the train and I work to get my clients out of harms way, and it never ends.

People ask me if I am upset that two men robbed me.  The answer is not at them, I am upset at myself for allowing it to happen.  If and when the men get caught my hope is that the officers that arrest them treat them with dignity and respect and afford them all their constitutional rights.  If I wished anything less I would be a hypocrite.

If and when they get caught, I will advocate for them (in the role of victim not as counsel) as I do all criminal clients.  I will ask that they be placed on probation, if it is their first offense.  I will ask that they be given drug and or alcohol treatment, if they have a problem.  I want them to be rehabilitated not punished.  Punishing them will make them harder and push them further into a life of crime.  I have seen this personally in my work.  If I asked for anything less, how could I ever again stand before the court in other cases and argue for these things.  I have taken this position in my life’s work and I will take that position now.  Not because I have to, but because I believe in the goodness of my fellow man and I believe that everyone deserves a second chance.

I have been clean and sober for over 23 years.  I am active in recovery.  I was given a second chance.  Now I fight for second chances for my clients and I will fight for a second chance for the men who robbed me.  If the men who robbed me read this, please call me and I will turn you into the police and make sure that you are treated fairly.  While I can not represent you, I will fight as the victim for your second chance.

Dwane Cates

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