What to do if You are Stopped by the Police

This is probably a good time to review some of your rights if you are stopped by the police.  Keep in mind that these are general discussions and never a substitute for advice from an attorney.  The best advices is to always consult with an attorney if you have legal problems.

The first thing to remember, is that as a general rule, you can not be detained without a warrant or reasonable articulable suspicion of a crime.  If you are stopped on the street without a warrant, keep in mind that you are never required to give consent for a search of your person.  An officer cannot generally search you without probable cause.  You should make it clear that you are not consenting to any search.  Without consent, your attorneys may be able to argue for any evidence against you to be thrown out.  

If you are in your home and police 

come to your door, keep in mind that they can not enter your home without your consent or a warrant.  Again, make clear that you are not giving consent for them to enter their home, even if they present a warrant, make it clear that the search is based solely on the warrant and you are still not giving consent.  There are occasional rare instances where officers can enter if there is a clear emergency situation (someone screaming bloody murder, etc.)   More than likely in those situations they will not be stopping to ask for consent.

Finally, if you are arrested, be aware of your right to a lawyer and your right to remain silent.  In my previous posts, I discussed the erosion of Miranda Rights.  Basically, the latest rulings by the Supreme Court virtually does aware with Miranda Rights unless someone clearly invokes the rights.  If you simply remain silent, or say something to the effect of "I think I want a lawyer..."  The police may be able to continue questioning you for hours until you break down.  You must say unequivocably, "I invoke my right to speak to my lawyer before any questioning."  Do not give any explanations, excuses, or stories.  Give your name and address and ask to see a lawyer immediately.  For further insurance also tell them you are immediately invoking your right to remain silent.

The Demise of Miranda

Earlier this year, the Supreme Court released their 5-4 decision in the case of Berghuis, Warden v. Thompkins. In this case, the defendant Thompkins remained silent for two hours and forty five minutes of interrogation. Finally, he was asked, "Do you believe in God?" and "Do you pray to God to forgive you for shooting that boy down?" He answered, "yes." Thompkins was convicted at trial and sentenced to life without the possibility of parole.
On appeal, Thompkins argues that his right to remain silent was invoked by his very act of refusing to respond to the questioning Initially, the US Court of Appeals agreed with his arguments that three hours of silence throughout constant questioning constituted an invocation of Thompkins' right to remain silent. However, the Supreme court reversed that decision in a 5-4 vote.
In the majority opinion, the Supreme Court alters the original Miranda rights. While suspects are still entitled to be read their rights, they must make a clear and unambiguous statement that they do not want to talk to the police. Simply remaining silent will not invoke their right. If a suspect answers any question, their right is considered waived.
The ultimate impact of this ruling is that it is now possible for the police to continue interrogating a subject for any length of time until they obtain a confession. Unless a suspect expressly announces that they are invoking their right to remain silent, they may unintentionally waive their rights.
The dissenting opinion warns that such a ruling presumes that a suspects rights have been waived even if their is no clear expression of their intent to do so. As Justice Sotamayor states, the opinion is "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation..."
The conclusion of this ruling is basically that a suspect is presumed to have waived their rights unless they have expressly invoked them.
Attorneys should begin to teach their clients to say "I am hereby expressly invoking my right to remain silent and my right to have my attorney present during any questioning." (At least until the Supreme Court rules that expressly invoking the right is not enough)