Law enforcement in Jackson, Hinds County, Madison, Ridgeland, Clinton, and in all the other Municipalities around Jackson are very aggressive in their pursuit of people who they think are guilty. The police officers sit around intersections waiting for people to pass by at late hours in the evening. They follow so close behind the car they are following that if it was an average citizen following so closely, he or she would be ticketed on the spot. When law enforcement forms an individual or collective opinion of another person’s guilt, it is often impossible to change their mind.Whether this is zealous law enforcement, or over-zealous law enforcement, is often in the “eye of the beholder.”
I have frequently written on a topic I believe is critically important to a free society and that is the American Bill of Rights. The Bill of Rights is a short document but it set the ground work for the creation of a great system of justice. Occasionally the system makes a mistake, but every system administered by human beings is prone to some degree of error. As Americans we need to continuously remember how and why the Founding Fathers forged the Bill of Rights, and remind ourselves that rights ignored or not enforced can easily slip away into the fog of history or be lost to a tyrannical government.
One of the rights I have frequently written about is the Fifth Amendment Right preventing the government from forcing any person to be a witness against himself in a prosecution. From this right comes the “right to remain silent” and the Miranda Warnings. The Mississippi Constitution has a similar provision found in Article 3, Section 26, which provides in part: “…and he shall not be compelled to give evidence against himself….”
When I was a young lawyer I heard a prosecutor jokingly say, “There is no challenge convicting a guilty person, it is the innocent that are the real challenge.” That statement turned my stomach. Nowadays with all of the innocent people being cleared by DNA evidence after sitting on death row or spending decades in prison, it is an even more chilling and disgusting statement. It is the main reason why I have said, or maybe even preached over and over, before you speak to any law enforcement officer, speak to an attorney first.
I am going to repeat myself: If you are stopped and you think you are a suspect; if the police begin treating you as a suspect; if they come to your home and start probing into an area that makes you feel uneasy; or if your gut or instincts tell you something does not feel right about the questions the police are asking, respectfully demand your right to remain silent and ask for a lawyer. Once you invoke your right to remain silent and ask for a lawyer, stick with your rights!
There are a few things you need to know about your rights. First, the police can talk to you all day if you are willing to stand there and talk to them. If the police come to your house or work you are not required to talk with them if you suspect they are investigating you. That is your right! If you have a concern about whether you are being investigated, you should invoke you right to remain silent and tell the police you are going to speak to a lawyer first. That is your right!
Oftentimes a person will come in our office after being charged with a crime and the first thing they say is “the police did not read me my rights.” Well, if the police don’t question you they don’t have to read you the Miranda Rights. The Miranda Warnings are required anytime the police seize you, hold you, deprive you of movement, or take you into custody and want to question you for a crime. If they don’t take you into custody and you voluntarily agree to talk with the police, they do not have to read you your Miranda Warning.
When you are stopped for a traffic violation the police can make inquiries about your driver’s license, registration and insurance. The police can also ask general inquiries from you while waiting for the report on your driver’s license. They should not however continue to hold you after they receive a report that your driver’s license and registration is valid. This is a very complicated and contentious area of constitutional and criminal law because police often believe they have the right to do whatever they want on the street. They frequently use pressure techniques and trained language skills to convince stopped motorists to talk with them or consent to a search of the car or person.
The best and easiest things to remember and which serve as “general rules” are the following:
1. If stopped in your automobile, you do not have to consent to a search of your person or car. That is your right!
2. Should police come to your home and ask to search it, you do not have to consent to a search of your home or any other property. The police must have a search warrant. That is your right!
3. If you are stopped in your car while driving, you should answer questions about your driver’s license, registration and insurance, but you do not have to answer questions that might point toward other possible criminal conduct. That is your right!
4. If the police call and want to talk with you, if they come to your home or at work, if they approach you on the street and want to discuss a crime, or something that you have any reason to worry about in the past, you have the right to not speak with the police. You have the right to speak with an attorney first. You have the right to have the attorney speak to the police for you. Follow your instincts. That is your right!
5. Once you have told the police you do not wish to speak, once you have asked for an attorney, you must stick to your rights. If you ask the police a question then it may allow them to start questioning you again.
6. Remember, the U.S. Supreme Court has said in some instances it is okay for police to lie to you. If you want to make full use of your rights, then after you ask for a lawyer, after you tell the police you do not wish to speak with them until you see and talk with a lawyer, do not speak to the police about the facts/case until you talk with your lawyer. That is your right!
The area of constitutional law which involves the Fifth Amendment Right to remain silent also intersects with the Fourth Amendment Right to be free from unreasonable search and seizure. It is often hard to talk about one without the other, because a stop or search often leads to the police wanting to question a suspect, or the questioning of a suspect often leads to the police wanting to search something owned by a suspect. As an American you have the option of waiving and giving up your constitutional rights. You also have the right to invoke or use them. That is your right! Or as I like to say, “These are your rights, Use Them or Lose Them.”
Merrida Coxwell is managing partner of Coxwell & Associates, PLLC, a law firm located in the historic Clifton-Burwell House, beside the First Baptist Church. The firm has been helping Mississippians for over thirty (31) years and the attorneys focus on criminal defense, serious permanent injury cases, financial fraud, and limited general litigation. Frank Coxwell handles consumer bankruptcy, predatory lending, Truth in Lending, and other consumer issues. Attorneys from Coxwell & Associates, PLLC travel throughout the state and into other states and federal courts helping people. If you have a legal problem please do not hesitate to call one of the attorneys at Coxwell & Associates, PLLC.
Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.