Constitutional Rights Before Arrest

Constitutional Rights & Protections Before Arrest

Introduction
The United States Constitution was a concept first derived from the repression citizens once suffered under British rule. Rights were determined by the crown and only extended to those citizens the monarchy felt deserving. Once accused of a crime, a citizen had very limited protection and guarantees of fairness and due process. In an effort to provide for guaranteed rights to those accused of a crime, the Constitutional Amendments addressed rights designed to protect citizens before arrest and to ensure arrests are based on as many available facts as possible.
Context
Of the many protections afforded citizens prior to arrest procedures, the most frequently
addressed by the courts is investigative stops and the level of authority possessed by the police to detain citizens. Two benchmarks exist in an effort to allow the police to investigate and prevent crime while protecting the rights of free citizens. The terms Reasonable Suspicion and Probable Cause greatly determine the extent of the police’s (State) authority in detaining individuals believed to be involved in a crime and subsequently impact the ability to prosecute them.
Reasonable suspicion is addressed in what is commonly referred to as the Stop and Frisk law or investigatory stop.
Police officers may temporarily detain (the length of that detention is a frequently argued issue) an individual long enough to determine their identity and a general explanation for their whereabouts. The frisk refers to a cursory pat down an officer may conduct to feel for any obvious weapons. Again, an officer must have a founded suspicion that the person may be armed. This is not a search and no part of the person or his belongings is subject to search under mere reasonable suspicion. Once an officer concludes this brief interview, a citizen can be detained no longer without further indicators of criminal activity. This stop, although certainly less than arrest, still requires the articulation of facts that the suspicion exists that a person has committed or is about to commit a crime. A “hunch”, even from an experienced police officer, can not singularly constitute reasonable
suspicion.
Beyond reasonable suspicion, lies the very subjective criterion of probable cause. Probable cause is the standard utilized to afford citizens protective rights from detention, as well as searches that may take place without a significant indication of criminal activity. The level of knowledge is based on the totality of facts leading a reasonable person to believe that the individual involved did indeed commit a crime. It is a much higher standard than reasonable suspicion and requires factual evidence. This detention most often leads to physical arrest. The historical basis leading to probable cause is founded in America’s independence. British troops entered homes, searched belongings and detained colonists for any reason they saw fit. Often, these detentions were based on nothing at all and for very illegitimate reasons. Cases of rape, theft and other crimes committed by troops against colonists were not uncommon. The decision making process was solely left up to an individual soldier and was not subject to review by any higher authority or judicial figure.
Attesting to probable cause for a search or detention (arrest) is most often accomplished by warrant. A warrant is simply the judicial instrument based on the articulated facts leading to probable cause. It is the most thorough means (judicial review); however, not the only method where probable cause gives the police authority to search or detain. When law enforcement is investigating felony crimes which have been or are being committed, probable cause is often the criteria that allows them to take immediate action. Searches can be conducted in conjunction with an arrest. Likewise, property, vehicles and homes of felony subjects can be searched if the probable cause can clearly define an immediate connection to the same crime. Although these exceptions to warrants are necessary when circumstances do not afford the luxury of judicial review, they are not as desirable. Warrantless arrest requires a sworn affidavit (often the arrest report) which articulates the same facts that would be contained in a warrant if the time to apply for one would exist. The deficiency which exists with warrantless arrest is that it is subject to the articulation of probable cause by the arresting police officer. At most, the document may come under review by a supervisory officer. The concern is not based on an expectation of incompetence on the part of the police officer, but the level of scrutiny that will come after the fact. In a search/arrest warrant situation, an officer’s ability to clearly articulate facts leading to probable cause is reviewed by a judge. If any doubt exists whether or not the level of probable cause has been reached, the warrant can be denied. This would lead a prudent officer to investigate a case further and become better prepared to articulate probable cause. However, if a warrantless arrest is made and it is later determined that probable cause did not exist, the charge may be dismissed and any subsequent cases may be impaired.
The Supreme Court’s landmark decision in Miranda v. Arizona (1966) established the principles and practices of procedural justice for suspects in custodial interrogation. Most importantly, the Court affirmed the constitutional right of a person in custodial police interrogation to remain silent (Rogers, Harrison, Shuman, Sewell, Hazelwood, 2007). By providing these rights, the government expanded upon protections originally drafted in the fourth and fifth Amendments of the Constitution. Probable cause does not provide blanket permission to seize and search property nor to begin incriminating questioning. Further protections of a person’s freedom exist. Once probable cause for arrest has been established and prior to any questioning in police custody takes place, a suspect must have his rights under Miranda explained to him by police. Courts continually reaffirm that merely reading the Miranda rights to a suspect is not sufficient. There must be confirmation that the rights are understood prior to the questioning. Contrary to popular media and television portrayal, Miranda warnings are not required to be read to all persons being arrested, only upon in custody interviews. You have the right to remain silent and refuse to answer questions. The Fifth Amendment protects any person from self-incrimination. Once probable cause has been established, a suspect does not have to answer police questions relating to a crime. If the suspect is the recipient of the Miranda warnings, it should be able to be assumed that cause already exists for arrest barring his own statements. Invoking this right ends the criminal interrogation.
Anything you do say may be used against you in a court of law. A suspect must completely and clearly understand that the police are asking questions in order to substantiate their probable cause. The answers provided will be used in the totality of evidence to charge the suspect with the crime. Their design is specific to eliciting responses that will turn the cause into fact and further develop their case against the suspect.
You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Any in custody police interrogations that occur without the opportunity for the suspect to receive the counsel of an attorney, will be suppressed. Miranda warnings are objective and fair. They provide for the opportunity for legal guidance regardless of a person’s stature or financial means. Additionally, if at some point during questioning, a suspect’s concern that he is about to be arrested grows; he may then refuse to answer any further questions.
Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present? A suspect is always afforded the opportunity to undergo police interrogation on his own. Again, this may only take place once police officials receive acknowledgment that the suspect understands all of his rights provided under Miranda. These protections are provided to all citizens, regardless or innocence or guilt and the decision to relinquish a particular Constitutional right belongs to an individual. A common thought is that an innocent person should willingly answer police questions and have no reason to refuse to comply. Arguments are often made on both sides regarding the substantive use of pre-arrest silence as an indicator of guilt. It is most commonly upheld that utilizing such evidence against a suspect equates to punishing them for exercising their constitutionally protected rights, regardless of their actual innocence or guilt. Attorney Sara Ciarelli, writing for the Journal of Criminal Law and Criminology, writes “The Court explained that while Miranda warnings did not expressly assure the adverse use of invoking the right to silence, such assurance was implied, rendering adverse use of silence a violation of the defendant's due process rights” (Ciarelli, 2003). The law provides for these rights, and just as not remaining silent does not necessarily equate to innocence, opting to refrain from answering questions does not translate to guilt. There gravity of failing to follow these pre arrest guidelines is significant. An arrest leading to a criminal trial must follow the guidelines. Reasonable suspicion can not lead to arrest without establishing probable cause. Any arrest or search based on anything less is subject to being dismissed. Likewise obtaining probable cause through further investigation after arrest is prohibited. Safeguards were built into the law in order to deter similar violations from occurring with custodial interrogations. Interrogational questioning has to take place post Miranda warning and has to be based on probable cause. The Fruits of the Poisonous Tree doctrine would eliminate any evidence discovered as a result of 4th or 5th Amendment violations. If a suspect is illegally questioned (either without Miranda or without the existence of probable cause) any statements made, specifically self incriminating ones would be discarded (Ambach, 2003). The Supreme Court has repeatedly upheld the doctrine and on occasion expanded its coverage. The courts also enforce protections when interrogations may be legally founded; based on probable cause and post Miranda, but become either abusive of forceful. A statement is involuntary when it is extracted by force or threats (Anonymous, 2004).
Conclusion
For many years citizens were not afforded protections against unlawful arrests and searches and seizures. In the United States’ birth, colonists were at the mercy of the British government. When accused of a crime, a citizen could be arrested and searched without any protection or explanation. Through the Constitutional Amendments, all citizens are provided protections from arrests without cause and are provided due process rights before an arrest takes place.

Reference
Ambach, K (2003).
Miranda's poisoned fruit tree: The admissibility of physical evidence derived from an unwarned statement. Washington Law Review, 78(3), 757-794. Retrieved July 4, 2008, from Research Library database. (Document ID: 395361691).
Ciarelli, S (2003). Pre-arrest silence: Minding that gap between fourth amendment stops and fifth amendment custody. Journal of Criminal Law & Criminology, 93(2/3), 651. Retrieved June 30, 2008, from Research Library database. (Document ID: 393196161).
Davenport, A. U. (2006). Basic criminal law: The U.S. Constitution, procedure, and crimes. Upper Saddle River: Pearson Education, Inc
Rogers, R. Harrison, K. Shuman, D. Sewell, K. Hazelwood, L. (2007). An Analysis of Miranda Warnings and Waivers: Comprehension and Coverage. Law and Human Behavior, 31(2), 177-92. Retrieved June 30, 2008, from Research Library database. (Document ID: 1238683411).
Anonymous. (2004). 8th Circuit: Forceful Questioning Nullifies Confession. Juvenile Justice Digest, 32(17), 4-5. Retrieved July 4, 2008, from Research Library database. (Document ID:
738644091).