Series: Protection from Police.  Part 2: Constitutional Rights

 Jake Pillsbury
 October 2, 2023

In Part 1 of this series, we discussed using self-control and composure to protecting yourself in an encounter with law enforcement. In this article, we’ll review your individual constitutional rights and how to invoke them to protect yourself. Most police know about individual rights and are taught about important Court decisions regarding those rights. Know your rights and avoid waiving them.. 

The Constitution Foresaw Police Overreach

The Bill of Rights contains a number of very important individual rights that protect you in a police encounter. Constitutional Amendments Four, Five and Six prove the founders of the United States were concerned about giving oppressive power to the government. They limited that power by codifying necessary individual protections against the government in the Constitution. These rights serve as the backbone of Criminal Defense in the United States. 

Amendment Four: Protection from Unreasonable Searches and Arrests

This Amendment protects people from unreasonable searches, arrests, and confiscations. It requires officers to obtain a warrant to search you or your property without your consent. Amendment four also keeps law enforcement from arresting or detaining a person without probable cause. This right allows you to refuse to consent to any search; just say no.

If the police ask to search you, your home, or your vehicle, you can respond with, “I do not consent to any search”. Remain calm as suggested in Part 1 of this Series. It is never smart to argue with an officer misinformed about their authority or your constitutional rights. As long as you clearly state you do not consent to a search, your lawyer can determine whether any evidence found was obtained illegally. In such a case, the Judge may bar the prosecutors from using any evidence found in the search. Remember, do not fight with the police after you’ve stated you won’t consent. Fighting with the cops can result in additional charges, serious injuries or worse.

Amendment Five: Right to Remain Silent

This is the most commonly-referenced individual constitutional right from police and government. It is the basis for the Miranda Right, “you have the right to remain silent.”  However, Amendment Five provides a number of additional individual rights, including:

  1. The protection against prosecution of the same person twice for the same crime;
  2. The right to due process;
  3. The right to compensation for any property seized by the government not tied to a specific crime; and
  4. Capital crimes must be charged by Grand Jury Indictment.

Silence is Golden

Understanding most of Amendment Five is more important for navigating the legal system. However, understanding and exercising your right to stay silent is the most critical way to protect yourself in a police encounter.

The right to remain silent is absolute. You do not have to speak to law enforcement beyond identifying yourself in certain scenarios. You do not have to answer questions, or provide statements. Although it may seem like a way to dispel any suspicion, usually a statement will strengthen law enforcement’s case against you. In Part 1, we told you that fighting with the police could make your situation worse or even put you in danger. However, compliance can damage your defense too. It is shocking how often intelligent, well-meaning people fail to exercise their constitutional right to keep their mouths shut and pay dearly for it. 

Watch Professor James Duane’s classic speech on never speaking to police. Available for free here.

When my clients ask what they should say to the police, my answer is always, “you should say ‘I am invoking my fifth amendment right to remain silent’ and then stop talking to anyone but me.”

Amendment Six: The Right to Have a Lawyer

Like its predecessor, Amendment Six contains a number of individual constitutional rights relevant in defense against a crime.  These include:

  1. The right to speedy and public trial;
  2. The right to an impartial jury;
  3. Jurisdictional rights;
  4. The right to arraignment on any charge filed against a person;
  5. The right to confront witnesses for the prosecution; and
  6. The right to call witnesses to testify for the defense

Amendment Six is procedurally important to Florida criminal defense lawyers, and it guarantees every person accused of a crime the right to have an attorney help defend them. Any person facing a police encounter should ask to have their attorney present at all times during the investigation. Law enforcement officers receive training on how to encourage people waive their right to an attorney. A lawyer provides a extra level of protection from the police. They can also negotiate immunity, plea bargain with the prosecution, and create a buffer between you and the people trying to convict you of a crime. Even if a person wants to provide a statement to police, speaking with an attorney first provides a valuable second opinion and an alternative point of view.

How To Put These Rights to Use

The smartest thing you can do in a police encounter is to follow these five simple steps:

  1. Provide your name.
  2. State you will not consent to any search of your person or property.
  3. State you would like an attorney present for any questioning.
  4. State you are invoking your fifth amendment right to remain silent.

Familiarize yourself with these rights to protect yourself from self-incrimination. The criminal justice system will treat you unjustly unless you exercise your constitutional rights. Obtaining an attorney to represent you as quickly as possible is essential.  By staying informed and proactive about exercising your rights, you will give yourself the best chance of avoiding criminal conviction.

More Resources to Protect Yourself