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When You Should “Just Say No” to the Police – and When You Can’t

The Schenectady, New York, criminal justice system, like the criminal justice systems elsewhere, is essentially adversarial. This means that if you have been charged with a crime or are being investigated for one, the police are not your friend. In fact, it might even be appropriate to go so far as to say that in criminal law, nice guys finish last.

Your most effective ally in a criminal investigation, other than your criminal defense lawyer, is your own understanding of your rights and your willingness to exercise them. Cooperating with the police is not your best option in every instance, even if you are innocent. Sometimes you should cooperate while other times it is best to “just say no.” The following is a brief discussion.

“You Have the Right to Remain Silent…”

The federal case, Miranda v. Arizona, established that the police are required to “read you your rights” once they have placed you in custody. You are in custody if a reasonable person under your circumstances would not feel free to leave. If the police have told you that you are free to leave (and they mean it), you are not in custody and they don’t have to read you your rights.

Your Miranda rights, of course, belong to you whether you are notified of them or not. They include:

  • The right to remain silent
  • The right to consult with a lawyer
  • The right to have a lawyer present while you are being questioned
  • The right to terminate police questioning at any time
  • The right to a government-appointed lawyer, free of charge, if you cannot afford a lawyer but request one anyway

The general rule is to refuse to answer police questions outside the presence of your lawyer, even if you are innocent of the crime (the police are full of tricks!). Remember, “…anything you say can and will be used against you in a court of law.” The government is forbidden from using your silence as evidence against you in court.

What happens if the police fail to read you your rights? This is not necessarily a “get out of jail free card.” All it means is that nothing you say can be used as evidence against you in court until you are advised of your rights. If the prosecutor has enough evidence to convict you without relying on your own statements, you could be convicted of a crime anyway.

Search and Seizure: Your Constitutional Rights

The Fourth Amendment protects you against “unreasonable searches and seizures.”  It also includes a warrant requirement for a search, which in turn requires “probable cause” that the search will yield evidence. Exceptions apply to the warrant requirement. But even where the requirement applies, the  police can still search if you give consent. Police can sometimes infer consent from your non-verbal actions.

The following are some of the exceptions to the warrant requirement for a search. These are occasions when the police can conduct a search without a warrant even if you do not consent to the search. Never consent to a search. If the police can search without a warrant, they will do so. But if they do so without your consent, you can always challenge the search later.

  • Search incident to a lawful arrest: If you are lawfully arrested, the police can search your person and your immediate surroundings without a warrant to locate weapons, evidence in danger of immediate destruction, and means of possible escape.
  • Plain view: Evidence in plain view can be seized without a warrant as long as the officer is where he has a right to be when he sees the evidence.
  • Stop and frisk: An officer can frisk you if he has “reasonable suspicion” that you are engaging in or are about to engage in criminal activity. Reasonable suspicion requires less evidence than probable cause does.
  • Automobile exception: The police can search a vehicle (even a boat) if they have probable cause that they will find evidence of a crime there.
  • Hot pursuit: The police can search for or enter private property to seek evidence when they are in hot pursuit of you and circumstances indicate that you might destroy evidence before they can obtain a warrant.
  • Exigent circumstances: The police can enter your property, or even break in, under emergency circumstances such as screaming indicating that a violent crime is in progress. At that point, the plain view doctrine can take over to allow them to seize evidence and you cannot object.

Refusing a Breathalyser Test

If you are pulled over in Schenectady on suspicion of DWI, you are technically entitled to refuse a breathalyser test in most cases, even if you are clearly intoxicated. We say “technically,” because even though, under most circumstances, an officer cannot force you to take the test, the consequences of refusing to do so are serious enough to make you think twice before refusing.

Refusing a breathalyser test (or other chemical tests such as a blood test) will result in a one-year suspension of your driver’s license and a $500 fine for the first offense. Penalties increase for subsequent offenses. Moreover, the prosecutor can use your refusal as evidence in a DWI trial, which means you could end up being convicted of DWI anyway.

A Top-Tier Albany Law Firm

  1. Stewart Jones Hacker Murphy has been named a Tier 1 Albany law firm every year since 2011 – and we don’t plan on allowing this winning streak to end any time soon. Moreover, our individual attorneys have been showered with honors such as:
  • Stellar rankings on AVVO, the preeminent attorney rating service
  • The coveted “AV Preeminent” ranking by the Martindale Hubbell Peer Reviews
  • Induction into the International Academy of Trial Lawyers
  • Listing among “America’s Top 100 Attorneys”

You Need an Ally on Your Side Immediately

If you have been arrested or charged with a criminal offense, if you are under criminal investigation, have been questioned by police, or if you anticipate any of the foregoing events, contact us today to schedule a free initial consultation by phone at our Schenectady office or even in jail. Time will not be on your side until we are.

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