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Fourth Amendment FAQ's
What is the Fourth Amendment?
The Fourth Amendment guarantees the right of people to be free from unreasonable searches and violations of privacy. The Fourth Amendment states: The right of 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 person or things to be seized.
Are all searches protected by the Fourth Amendment?
No. Before a court will even entertain the possibility that the search in question was unreasonable, the person being searched must have had a legitimate expectation of privacy. To determine whether the defendant had a legitimate expectation of privacy the courts will look at the following factors: (1) did the person subjectively or actually expect some degree of privacy, and (2) is the person`s expectation objectively reasonable, that is, one that society is willing to recognize?
EXAMPLE #1
The police install a hidden video camera in the shower area of a local fitness club. Most people who use the shower in their fitness club have a subjective expectation of privacy. Privacy in a shower area is an expectation that society is willing to recognize. Therefore, the installation of a hidden camera by the police in a fitness club`s shower area will be considered a search and subject to the Fourth Amendment`s requirement of reasonableness.
EXAMPLE #2
While John is making a telephone call in a glass enclosed phone booth; he places a bag of cocaine on top of the phone. A police officer walking by notices the bag and arrests John for possession of a controlled substance. At trial, John tries to argue that the search of the phone booth was unreasonable because the officer lacked a warrant. This argument will fail because the court will never even get to the reasonableness of the search.
When police find a bag of cocaine on the top of a phone in a phone booth, it is not a search for Fourth Amendment purposes. It is very unlikely that John would think that a public phone booth is a private place, and even if John did, society is not willing to extend the protections of privacy to public pay phones.
Miranda Warnings FAQ's
What is a Miranda warning?
A Miranda warning advises people of their constitutional right not to answer questions or to have an attorney present before answer any questions.
If I am not under arrest, do I have to answer a police officer`s questions?
No. Unless you are placed under arrest you are free to leave at any time. However, if a police officer stops you while you are walking, and asks you for identification, it is probably in your best interest to provide such information. The courts have allowed police officers to detain people for extended periods of time in an effort to determine the identity of the individual.
EXAMPLE: Tommy is walking down the street and approached by Officer Doright. Officer Doright begins to question Tommy about a bank robbery that happened a few days ago. The conversation looks like this:
Officer Doright: Hey, excuse me, I would like to ask you a few questions.
Tommy: um, ok, what is this about?
Officer Doright: I`m investigating a robbery that happened a few days ago, I thought you might be able to give me some information.
Tommy: I just got back in town today from Europe, I really don`t think that I can help.
Officer Doright: You just got back, that`s interesting, because you fit the description of the robber that the bank teller provided.
Tommy: Excuse me Officer, am I under arrest?
Officer Doright: Umm, well no, but if you have something to say, I promise to help you out.
Tommy: No thanks Officer, you have a nice day. Tommy then continues with his walk home from the airport.
Must a police officer always advise a person of their Miranda rights before asking a question?
No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave.
For example: Officer Jones is investigating a robbery at the local supermarket. The cashier indicates that a patron named Mary Smith may have seen the robber. When Officer Jones interviews Mary, Mary makes statements implicating herself in the robbery as a lookout. Can Mary`s statements be used against her later, even though she was not read her Miranda Warning? The answer is yes, because Mary was not in custody when she was being asked the questions. Therefore, Mary was free to leave if she wanted to.
If I am in custody, how do I assert my right to remain silent?
A suspect who has been arrested need only say I want to speak with an attorney or I have nothing to say now. If the police continue to question the suspect, the police have violated the suspect`s 5th Amendment rights. Anything that the suspect says after the violation is inadmissible as evidence in court.
Can I waive my Miranda rights?
Yes. If you have been arrested, and you have been given your Miranda warning, then anything that you say can and will be used against you in court.
But the police officer said that if I talked, he would help me out.
This is something police officers always say. Police officers have no control over what happens to you after you have been arrested. The determination of what you will be charged with, and how you will be sentenced, is up to the prosecutor and the presiding judge.
Bail FAQ's
What is Bail?
Bail is a way for individuals who have been charged and arrested to be released from police custody until their trial. If you are arrested and detained at the police station, you have the right to a bail hearing before a judge within 24 hours, or as soon as possible.
What is a Bail Bond?
A bail bond is a written guarantee that a defendant will attend all further Court proceedings. Bail is set by a court to make sure that a defendant will appear and also to offer the community protection if the defendant is considered dangerous. The more likely it is that a person is dangerous or will not appear in Court when required, the higher the bail will be.
What is a Bail Hearing?
At your bail hearing, the judge will look at several factors to decide whether or not you should be released. For example, the judge will consider whether you are a danger to the public, how serious the offence is, whether you have a criminal record or outstanding charges, whether you have ever missed a trial in the past, and whether you have a job, a business or a family in the area. It is always helpful to have a credible friend or family member at a bail hearing to vouch for you if possible and you should always be represented by an attorney at a bail hearing.
What happened if I am held in custody or released on bail?
If the judge decides to hold you in custody, you will be held in a local detention center until your trial. If the judge decides to release you, you may have to pay money into court as a deposit, a friend or family member may have to agree to supervise you, and there may be certain conditions attached to your release. When you are released, you will be given a piece of paper that tells you when and where to be in court to set your date for trial.
Can you appeal a denial of bail?
If you are not allowed out on bail, you can ask for a review of the judge's decision. A judge in the District Court of Appeal will then review your case. If the judge refuses to release you, you must wait 30 days before applying for another review.
Bail hearings are very important to anyone who is in custody after being arrested. You should always be represented by a lawyer at a bail hearing.
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Disclaimer: This web site has been designed to provide educational information only and is not intended to offer legal advice. Every case is unique and outcomes will vary depending upon the facts and legal issues of your case. Please do not make any decisions about any legal matter without consulting with an attorney first. There is no Attorney Client relationship formed by any use of the information provided.
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