During the summer, many travel in and outside of Pennsylvania and New Jersey and there is always an increased police presence on the roads, highways and bridges. Our criminal defense law firm represents person charged with crimes and these offenses involve allegations of drunk driving, illegal drug, narcotics, and possession of illegal guns and firearms. We always advise readers and clients to respect police and law enforcement but to never give consent to search their vehicle, their home or property. In addition to not giving consent to search, a person should never speak to police without a lawyer present.
What is the only information you should provide to police?
Providing information other than your driver’s license, registration and proof of insurance will never help your case! This is a critical criminal defense concept that most people overlook!
Here are some common questions and phrases police officers ask to investigate and collect information which could lead to a vehicle search or a search warrant:
- Where are you coming from?
- Where are you going?
- Is there anything in the car we need to know about?
- If you don’t let us search the car, we are getting a warrant.
- Just come clean and this will work out
- How much did you drink tonight?
Your 5th (Incrimination) & 6th (Counsel) Amendments Rights
Everyone has a 5th amendment right against self-incrimination and a 6th amendment right to counsel (attorney). All of these rights are contained within a person’s Miranda warnings which police are required to give you prior to an arrest. Keep in mind, however, that your Miranda rights are only required if you under arrest and there a plenty of situations where people make incriminating statements prior an arrest.
There are 3 types of police interactions:
- -Mere Encounter
- -Investigative Detention
- -Custodial Interrogation
When do your Miranda Rights Apply?
Miranda only applies to custodial interrogations but you can obviously make a statement to police at any level of interaction between you and police. If you do talk to police and then later attempt to challenge the admissibility of that statement, keep in mind that most courts will find that an investigative detention moves to a custodial interrogation if police begin asking questions which could elicit incriminating statements and you don’t feel free to leave. You don’t necessarily have to be under arrest, in handcuffs, or in a police car. In these situations, the prosecution must prove by a preponderance of the evidence that the waiver of your constitutional rights (Miranda) is knowing and intelligent.
How criminal courts determine if you have waived your Miranda Rights
A Court’s analysis has two distinct dimensions to determine if Miranda is waived.
First the relinquishment of the right must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.
Second, the waiver of right against self-incrimination must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it (Miranda). Only if the “totality of the circumstances” surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that Miranda rights have been waived.”
To determine voluntariness, a Criminal Court will look at the following factors:
- the duration and means of the interrogation;
- the physical and psychological state of the accused;
- the conditions attendant to the detention (in a police car, an interrogation room);
- the attitude of the interrogator;
- and any and all other factors that could drain a person’s ability to withstand suggestion and coercion.
Finally, the circumstances of whether a defendant voluntarily waived his Miranda rights and his rights against self incrimination depends on the particular facts of each case. These circumstances include the background, experience, and conduct of the accused.
What is my advice regarding speaking or not speaking to police who are investigating a potential crime with you as a potential suspect?
A criminal court will consider all of these factors but my best advice is to simply not make any statements to police. Speaking to police will only prolong their investigation and potentially lead to additional charges or police discovering incriminating evidence.
It’s important to understand that in most cases, police officers need probable cause to stop a car but courts, in and out of Pennsylvania have allowed police officers to stop the car with less than probable cause to investigate possible DUIs or other impediments on a person’s ability to drive safely. After the car is stopped, there is no clear rule on how long an investigation may last but police officers are permitted to extend the time of the vehicle or pedestrian stop if they can’t continue to develop a reasonable and articulable suspicion of criminal activity that expands the scope of an investigation beyond the initial reason for the stop.
What to know about Police Investigations
Keep in mind that the officer doesn’t have to articulate specific criminal activity but only the suspicion of criminal conduct or items that might imply criminal conduct.
A court, therefore, in determining the reasonableness of an investigation may consider the following:
- A driver and passengers conflicting stories
- Certain Smells (alcohol, drugs)
- Inconsistent statements
- Nervousness (to some degree)
- The lack of luggage (if the driver says he is traveling)
- Non-criminal items used in criminal activity (plastic bags, twist ties, scales)
- A driver’s consent to search
Since there is no exact amount of time in which an officer must complete an investigation, it is important to always remain silent and not allow police to search your vehicle or your person. Never give consent to search! Further, don’t volunteer any information and don’t elaborate or attempt to engage the officer in a conversation since this will only extend the investigation. The longer that the police officer investigates you and the incident surrounding the stop, the greater chance that you will be arrested and charged—he is trying build the foundation for an arrest!
At the end of the day, if you’re arrested it’s important to continue to remain silent and don’t make any statement without an attorney. Even if police find an illegal item in your car, don’t say anything about it; just let them arrest you—don’t try to explain it to them. Remember the prosecution must prove you possessed the contraband beyond a reasonable doubt. If you admit that th
What is actual vs. constructive possession in Pennsylvania and New Jersey?
Actual possession is when the alleged contraband is found on the suspect’s person. Constructive possession is when the item is found in the persons area of immediate control. It is very important to understand that your criminal defense lawyer must have a strong command of this concept because it is often critical in any trial involving individuals who often face felony convictions and the possibility of State prison. In New Jersey, for example, most gun crimes involve mandatory minimum sentencing. While Pennsylvania does not carry mandatory minimum sentencing in cases, nevertheless, people face serious jail terms in Pennsylvania following a conviction for a gun crime.
Contact Our Criminal Defense Lawyers in PA & NJ
Please click here to contact our Philadelphia criminal defense lawyers. We offer free case reviews and serve the following areas in Pennsylvania and New Jersey, Atlantic City, Camden, Cherry Hill, Chester, Conshohocken, Doylestown, Media, Norristown, Philadelphia, Pottstown, Salem, Upper Darby, Upper Merion, Upper Providence, Vineland & Woodbury areas.
For more information on criminal strategies and defenses in New Jersey and Pennsylvania I encourage you to keep reading my blog.