17 Feb '16

You Have the Right to….Assert Your Rights!

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Posted by KurtWeb
267 comments

Everyone knows the phrase, “Miranda Rights”.  Ernesto Miranda confessed to some nasty crimes (rape and kidnapping) in 1963 without having been told by the police he had the right to counsel and to remain silent.  In 1966, the US Supreme Court held when a person in custody is being questioned by law enforcement, the 5th & 6th Amendments to the US Constitution require the police to advise him or her of their rights.  For a more detailed history of the case, go to:   http://legal-dictionary.thefreedictionary.com/Miranda+v.+Arizona

Ernesto tried to make a living after his release by selling autographed cards of the “Miranda Warnings”.  After numerous alcohol fueled arrests, he died an ignoble death…stabbed in a bar fight.

Miranda rights are relevant when two factors are present:  1) You must be in custody (not free to leave the presence of the police) and, 2) You are being questioned about the facts of the alleged crime.

What constitutes “custody” is often the subject of litigation and is heavily fact dependent.  But one consistent rule the courts have applied is police are not required to advise you of your rights during routine traffic stops.  Any questions they ask you (such as “Do you know why I stopped you….Do you know how fast you were going?”) are intended to elicit a response that can used against you in court.

When the police decide to question you after an arrest, they routinely read from a card they carry.  It is usually entitled, “Miranda Warnings”.  It starts with, “You have the right to remain silent….” and goes from there.  The card is used to head off any challenges as to whether one’s rights were read properly and in their entirety.

Some clients invoke their rights and refuse requests to search their person, car or home.  Whether it is a search or a statement at issue, the police often come to court with a different version of how it happened than the civilian (now a defendant).

To encourage people to know and assert their rights,  I put specific language on the back of my business card.  It, like the police Miranda Warnings card, can dispel any dispute about whether one invoked constitutional rights.   It reads:

“Officer  – By presenting this card, I respectfully invoke my rights to counsel, to remain silent, and to be free from unreasonable search & seizure.  You do NOT have my consent to search my auto, my person, or my home.  My lawyer is Kurt Mausert.  I wish to contact him immediately.”

I handled a marijuana possession case in which the presentation of this card was the key factor in evidence being seen as inadmissible due to an illegal search (another story for another blog).  The point is the presentation of this card can invoke your rights in a clear manner which can make all the difference in how the case is resolved.

Referring to me, the last sentence of my card states, “I wish to contact him immediately.”  Clients have reported police telling them they will never be able to reach a lawyer at 1 in the morning or some other off hour.  They’re wrong.  I am available 24/7 for urgent matters.  These include arrests, requests for searches, and other interaction with the police.  If it is urgent and requires immediate attention, my service will reach me and I will call you.  Day or night.  Weekend or business day.

If you would like a copy of my business card with this invocation of rights, call or email my office.  I’d be happy to send you one.

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