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Michael Torney: Frequently Asked Questions about Criminal Law, Part 1

Michael Tourney authorLaw student Michael Torney answers questions about criminal law in this four-part series. For information only. Michael Torney is not giving legal advice. He is not an attorney, and each case is dependent on state laws and the individual facts of the case.

What rights does an individual hold prior to an arrest?

One of the most important rights you possess is the right not to be subjected to unreasonable search and seizure. Although there are a few exceptions to this rule, in the vast majority of cases, law enforcement must have a clear and reasonable suspicion before subjecting you to any type of search.

You also have the right to avoid saying anything that will put you in a bad position; i.e., the right to remain silent. You also have the right to contact an attorney. Finally, you have the right to be advised of these rights before the arrest, through the procedure normally referred to as Mirandizing.

Under what circumstances can police search my home, vehicles, mobile phone, or belongings?

The police need probable cause to conduct a search of private property, which requires them to obtain a warrant issued by a judge. However, for property left out in the open, such as a notebook abandoned on a park bench, there is no reasonable expectation of privacy by the owner, and police may search at will. Various courts have ruled differently as to whether or not the contents of your cell phone, for instance, constitute property left in the open or not.

You should also note that the police do not need a warrant to search you or your belongings if you consent to such a search. If asked by the police, you have a right to refuse unless they present you with a warrant.

When do police have to read me my Miranda rights? What happens if they don’t?

Technically, they need to read you your rights before taking you into custody for the purposes of interrogation. This can happen at the time of arrest, or at some later point, as long as it happens before interrogation begins. If the police fail to read you your rights, any statements given by you at the time will likely be ruled inadmissible. Note, however, that the charges are not automatically dropped, as some believe, but any confession you made prior to being read your rights will be removed from the record.