Frequently Asked Questions About DUI/DWI, Drug Possession, and Illegal Firearm Charges
Do I have to take a breathalyzer test when I am pulled over? Does an officer need a reason to search my car? What is a bench trial? Whether you have been charged with a crime or not, these FAQs will give you the information you need to protect your rights in Pennsylvania and New Jersey.
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What should I do if the police want to search my car or my house?
All searches done without a search warrant are presumed to be unconstitutional. The law, however, permits police and law enforcement to conduct warrantless searches in certain situations, which the law in Pennsylvania and New Jersey, refer to as exigent circumstances. Exigent circumstances exist if there is a reasonable possibility that evidence will be lost or destroyed if police don’t search the property in question and confiscate the evidence. There’s a much higher level of scrutiny and expectation of privacy associated with a person’s home than a person’s car.
What type of evidence do police need to stop and investigate a possible crime?
Police need reasonable suspicion that a crime has been committed, or is being committed, to stop and detain a person to investigate a crime. Reasonable suspicion is a lower form of probable cause. This level of investigation also permits the police to frisk a person if the officer believes that the suspected individual poses a threat or danger to the officer’s safety.
What type of evidence do police need to make an arrest?
Police and other law enforcement need to establish probable cause that a crime was committed or is being committed, to arrest someone. Probable cause is the reasonable belief, based on the officer’s training, education, and experience, that a person is committing a crime or has committed one.
Speaking to Police: Do they always need to “read you your rights”?
Prior to discussing your constitutional right to remain silent, I want to restate my professional opinion regarding speaking to police or any member of law enforcement regarding criminal allegations—don’t answer any questions, don’t make statements (written or verbal) and call a lawyer! Speaking to police will never help your case! I believe so strongly in this advice that I’ve actually put it on the back of business card (pictured above.)
With that said, all persons have a right to remain silent under the Fifth Amendment to the United States Constitution and these rights are given to criminal suspects in the form of Miranda Rights which are read prior to a custodial police interrogation. These rights are named from the United States Supreme Court case of Miranda v. Arizona (1966) in which the Court ruled that incriminating statements, elicited by a suspect not informed of this right violates the Fifth Amendment and Sixth Amendment (right to counsel). Specifically, police must advise a suspect that he or she has the following rights:
- The right to remain silent;
- Anything the suspect does say can and may be used against him in a court of law;
- They have the right to have an attorney present before and during questioning; and
- They have a right, if they cannot afford the services of an attorney, to have one appointed.
Police can advise a suspect orally or in writing and the officer must make sure that the criminal suspect understands what is being said. While Miranda Rights are required under the Constitution, this protection is only triggered if a suspect is in custody and is being interrogated—custody and interrogation are critical elements. Custody doesn’t always mean a formal arrest especially in Pennsylvania where the restriction of a person’s movement (not free to leave) could be considered custodial. It is important to keep in mind, however, the fact that a person is in a police station or the police or law enforcement are simply speaking to someone and asking questions doesn’t trigger Miranda Rights or Constitutional protections. The fact that a police officer doesn’t administer Miranda warnings doesn’t mean that the statements are necessarily coerced and therefore inadmissible in court.
A custodial detention is only constitutionally permissible if based on probable cause under the Fourth Amendment to the United States Constitution. In Pennsylvania, the courts will apply a totality of the circumstances analysis to determine whether a person would feel free to leave. An encounter becomes custodial when under the totality of the circumstances it appears that the detention is coercive (again not free to leave.) If police inform a suspect that he is free to leave but the suspect nevertheless makes a statement, those words could be considered admissible even if Miranda Rights were never given to that person.
I’ve written articles on the forms of police contact and I encourage you to read them in addition to my information on probable cause, reasonable suspicion, as well as illegal search and seizure. When police fail to administer Miranda warnings it does not mean that the statements received are coerced but only that courts will presume that the constitutional right against compulsory self-incrimination hasn’t been intelligently exercised.
Miranda warnings only need to be administered when a person is taken into custody or his freedom has otherwise significantly restrained. Again, the issue of restraint and custody is often not very clear especially in situations where a person is sitting in a police station but not necessarily under arrest (“Just come in to talk to us.”). Criminal Courts are focused on whether a statement is knowingly and voluntarily made along with circumstances surrounding those admissions. The warnings, however, are important and in the event that a suspect were to make incriminating statements during the course of an unwarned interrogation police will usually administer the warnings and then re-question the suspect to ensure that there is no constitutional admissibility issue.
Prior to the Miranda decision courts would evaluate in-custody statements and whether they were voluntary within the meaning of the Due Process clause of the Constitution. Specifically, courts would evaluate whether the techniques used to obtain the statement offended Due Process. Miranda warnings practically reinforce a person’s Fifth Amendment right against self-incrimination.
Free to Leave? When does a police car stop violate your rights in Pennsylvania?
There a lot of illegal drug, gun and firearm (VUFA) cases in Pennsylvania and beyond that started with a traffic stop. Police have stopped most of us at least once if we’ve been driving a car in the Commonwealth or any state for a significant period of time. Traffic stops occur for a variety of reasons but usually a driver has violated some section of the motor vehicle code (Title 75) such as speeding, running a stop sign, a red light or there’s something wrong with the vehicle (window tint, car registration, tail light).
The violation provides the law enforcement officer with probable cause to stop the vehicle and this is constitutionally permissible. After the car stop, the police officer is permitted to investigate the violation and question the driver about it. If, however, the officer continues to question after the purpose of the initial traffic stop is achieved, he needs reasonable suspicion to support the continued seizure and investigation.
If the officer continues to question, it is presumed that the driver isn’t free to leave. It’s important to keep in mind, however, that as long as the officer’s attention and focus remains on the initial traffic stop, he is not only permitted to question the driver and investigate the violation but order the driver out of the vehicle in the course of issuing the citation for the initial traffic violation.
Remember, that reasonable suspicion is based not only on the officer’s observations but his knowledge and length of experience in his position. Pennsylvania Courts, however, will still evaluate this constitutional requirement on an objective standard – what are the facts available to the officer at the moment of the interaction that would cause an officer to reasonably believe that further police action was needed to investigate a possible crime (Totality of the Circumstances.) There needs to be reasonable suspicion and it can’t be a hunch or guess or some type of baseless suspicion.
Pennsylvania courts have found that reasonable suspicion doesn’t exist simply because a driver appears nervous during questioning or that the driver’s “story” seemed inconsistent with regards to the length of time he was driving the car or that the driver’s story didn’t “add up” with the passenger’s version. Reasonable suspicion, however, does exist where the officer smells or hears something that, based on his experience and training, could be some type of contraband (drugs, controlled substance, or guns). This second round of questioning once the initial traffic stop questioning is completed (officer gives back driver’s license and issues citation) requires something more than just the officer “looking for something” to support it.
Frequently the officers will ask to search the vehicle during this second round of questioning without any reasonable suspicion to do so. The driver’s consent, however, allows the office to bypass the need for a search warrant as all searches in Pennsylvania are presumed unreasonable without a warrant. While the Pennsylvania case of Commonwealth v. Garry has challenged the concept of exigent circumstances and Pennsylvania’s protection against warrantless searches, this case is distinguishable from many Pennsylvania drug and gun cases.
Even if the officer orders the driver out of the car, there still must be an independent basis for the continued questioning. Without reasonable suspicion, any and all evidence obtained, even if the driver consents following questioning, could be held inadmissible under the Exclusionary Rule. Reasonable suspicion is a lower form of probable cause and so police don’t need as many “articulable facts” as probable cause. Probable cause, as you may recall, is the standard that federal and state courts will use to evaluate the search and/or arrest of a criminal suspect.
These concepts are critical especially in cases in involving drugs, guns or any firearms in Pennsylvania. They form the foundation to a Motion to Suppress Evidence based on a violation of a person’s constitutional rights under Article 1, Section 8 of Pennsylvania Constitution and the 4th and 14th Amendment to the United States Constitution.
Throwing Out More than Garbage? Abandonment & Your Constitutional Rights
We all have thrown out different types of items during the course of our lives and we’ll continue to do so up until the very end of it. People throw away items to eliminate clutter and/or to make room for a new item or version of the same product. Everyone enjoys the constitutional right against illegal searches and seizures of their person and their personal property. To assert those rights, however, a person must have standing under the Fourth Amendment to the United States Constitution. Standing means that the person has the privilege to assert their constitutional right and without it, a court won’t look any further at this issue. Criminal defense attorneys argue constitutional rights under the Fourth Amendment in Motions to Suppress Evidence but these motions require that the Petitioner (the accused person) has standing under the Constitution.
Standing obviously takes the form of a person’s physical body but it can also be any property that a person owns or is in possession of at the time of the police officer’s stop or seizure. When a person throws away property, he or she effectively abandons not only the property but also his Fourth Amendment Right to it. If property is therefore thrown out, police don’t have to obtain a search warrant to search it or even ask the accused person’s consent.
In the criminal defense world abandonment not only takes the form of throwing items out but also hotel rooms, once the bill is paid and rental cars, once they are returned to the car company. Courts have held that once a person disclaims ownership and possession of a piece of property he or she has no standing to contest the search of it. Abandonment is a major issue in cases where people throw out items used in the sale or distribution of drugs (baggies, scales, cutting knives, etc). It’s also an issue in gun cases when gunshot residue is an issue. As discussed in my previous article, circumstantial evidence sometimes isn’t as strong as direct evidence but it’s still enough to convict the person beyond a reasonable doubt in a criminal court in Pennsylvania.
Abandonment is a pre-trial issue that can prevent the admissibility of evidence at trial if the defense can successfully argue that the property wasn’t abandoned. Abandonment isn’t, however, a preliminary hearing issue as the issue there isn’t guilt but rather a connection to a crime (aka “prima facie burden of proof.) I encourage you to read my article on preliminary hearings to understand more about this concept.
Again, abandonment is a huge issue in cases involving drugs, guns, and firearms because Motions to Suppress Evidence are usually the defenses strongest tools in cases involving these crimes. In these cases the prosecution will likely argue that the accused person has no right to the property and therefore the issue of probable cause, reasonable suspicion and constitutional rights doesn’t even apply. It is important, however, that you’re attorney uses circumstances surrounding the alleged abandonment to show that the accused person maintains some ownership interests in the property. For more on criminal defense strategies, check out our resource center, my monthly blog and videos!
Police Stops of Pedestrians- What’s Permissible in Pennsylvania?
I’ve written articles on the constitutionality of car and vehicle stops in the context of drug and DUI charges but haven’t devoted enough attention to pedestrian stops. Police stop persons walking down the street as often, if not more often, than motor vehicles and so this issue is important. If you’re a frequent reader of my blog, you understand that police need probable cause to arrest someone for a crime but prior to that arrest an investigative detention (stop) often occurs.
During this stop police begin an investigation that helps form the basis for probable cause to arrest. The basis for this stop, however, is extremely important because without a sufficient basis, the search and seizure of the suspect will be deemed illegal. Any evidence found as the result of an illegal search and seizure is inadmissible and therefore can’t be used as evidence against someone during a prosecution. Police stops often occur after an officer observes a suspect who he believes is involved in criminal activity based on his experience and training.
In addition to these instances, police are also permitted to stop a person if they believe that the individual is carrying some type of contraband (i.e.: a gun- bulge). Further, after the stop police may frisk someone to confirm that the person isn’t a threat to the officer’s safety. This is known as a “Terry Stop.” While police need probable cause to arrest someone and search their belongings, they only need reasonable suspicion for an investigative stop (detention).
It is important to keep in mind, however, that a police stop is only constitutionally permissible if the police officer can articulate a reasonable basis for his belief that some type of crime was occurring prior to the stop. For instance, if police simply observe unusual movements or some type of awkwardness, Pennsylvania Courts have found that this isn’t enough to establish reasonable suspicion for a police stop.
A person’s presence, however, in a high crime area combined with unusual movements or “hand to hand” transactions is probably enough for a stop for further investigation. Pennsylvania criminal courts will evaluate the reasonableness of a police stop based on a totality of the circumstances analysis based on the officer’s training and experience. There is no simple answer to the issue of reasonable suspicion or probable cause and every case is different.
While the Pennsylvania Supreme Court has ruled that police have probable cause to search a suspect based simply on the observation of the exchange of items in a high crime area, our Supreme Court still stressed that the prosecution must establish a “nexus” between the officer’s experience and his decision to search.
The bottom line is that reasonable suspicion to make an investigative stop is an important issue to any drug or gun case in Pennsylvania and beyond. While the test for reasonable suspicion doesn’t require as many “articulable facts” as probable cause, your criminal defense attorney must analyze this part of your criminal case. If reasonable suspicion and/or probable cause are issues, your attorney must assert your Fourth Amendment Right against illegal search and seizure through a Motion to Suppress Evidence prior to trial. If your attorney doesn’t do this you waive your Fourth Amendment Right and it can seriously jeopardize your case. If you have more questions about criminal defense strategies you should read my books and subscribe to my monthly newsletter.
Your IPad and Your Expectation of Privacy in Pennsylvania?
Probable cause and reasonable suspicion are important concepts in the area of criminal defense and pre-trial motions. If Police don’t have probable cause and or reasonable suspicion, the search and or arrest of a suspect is illegal. Even if there is search warrant in these cases, a criminal court will find that the evidence obtained from the arrest is inadmissible in a criminal prosecution. While everyone enjoys the Fourth Amendment right against illegal search and seizure as well under the Pennsylvania Constitution (Article 1, Section 8) a person must have legal standing to assert it. Search and seizure doesn’t just apply to traffic stops
Standing with regards to a Fourth Amendment and illegal search and seizure means that a person must have a reasonable expectation of privacy in the area searched. If a person doesn’t have a reasonable expectation of privacy, they can’t assert an argument that a search is illegal. In Pennsylvania, the Wire Taping and Electronic Surveillance Act is designed to protect privacy. The Act derives from our Fourth Amendment right and our rights under the Pennsylvania Constitution. This Act prevents police from “intercepting electronic, mechanical, or other devices” based on a person’s Fourth Amendment Rights against illegal search and seizure. This applies to both felony and misdemeanor offenses in Pennsylvania.
This Act in Pennsylvania specifically covers any device or other apparatus used to intercept phone calls. The intercepting device, however, doesn’t include simply listening to a telephone call that is for instance played on a speaker of a cell phone. This was the situation in a case that occurred in Pennsylvania last year (Commonwealth v. Spence) where the Pennsylvania Supreme Court ruled that the act of a state trooper listening to the speaker on an informant’s phone didn’t violate Wiretap Act in Pennsylvania. It is important to understand that this type of evidence may be suppressed either under the Wiretapping and Electronic Surveillance Act or under the Fourth Amendment to the United States Constitution.
To assert the Fourth Amendment, however, you must have an expectation of privacy. In a recent case, however, the Pennsylvania Superior Court made a distinction between an IPad and a cell phone. In Commonwealth v. Diego the court said that an IPad isn’t a cell phone or any type of phone under the Wiretap Act. In this decision, the Superior Court found that an IPad is an electronic, mechanical, or other device which would be included under the Act. Police, therefore, can’t use an IPad to intercept text messages, e-mails, and other forms of communication. Read my other article on this important topic
The court found, however, that a person who sends a text message, leaves an e-mail, or other “chat communication” has no expectation of privacy in that communication. The court found that these messages are equivalent to voicemails on an answering machine (if people even use them anymore.) Since there is no expectation of privacy, the person doesn’t have standing and can’t asset the Fourth Amendment against illegal search and seizure.
While an IPad does fall under the “device” category of the Act police don’t violate the Wiretap Act when they view a received text message on an IPad, IPhone, or a computer. Keep in mind that it’s the interception of the communication which violates the Act not the receipt of it. Viewing the text that was already received is neither a violation of the Act or a violation of a person’s Fourth amendment rights.
No License, No Insurance, No Registration: Not Arrested?
Recently one of our readers asked why a person without a drivers’ license, valid insurance, and a valid registration wouldn’t be arrested on the spot by police.
In Pennsylvania, all of these violations (not having a license, insurance, etc) are summary violations that are covered by Pennsylvania’s Traffic Code (Title 75). There are, however, traffic violations which are much more serious like DUI (Title 75, Section 3802). DUI is a misdemeanor offense in Pennsylvania and much more serious than a summary offense. Read my article on the categories of crimes in Pennsylvania for more information.
Unlike other criminal offenses, summary offenses don’t always require an arrest. In Pennsylvania, police may handle a summary offense by issuing a citation to the person or arresting the person in certain situation. Arrests are only for cases involving “violence, or the imminent threat of violence, or those involving a danger that the defendant will flee.” Driving without a license or not having the proper documentation wouldn’t fall into this category so police won’t arrest someone in this situation.
Despite not arresting someone, police may seize the car; this is known as “Live Stop.” If police do however seize a car, they aren’t permitted to simply abandon the person on the street! The officer must ensure the safety of the person by giving him or her a ride to their house, another location within a reasonable distance or the nearest police station so they can make arrangements.
If you have more questions about criminal law, I invite you to visit our free resources section.