Officer showing photos to witnessThis is the next post in my series on whether someone’s rights were violated when they were stopped by the police. My last article discussed whether law enforcement may have illegally stopped a car. It is important to understand that the police may not stop a vehicle simply because they want to – they must have “reasonable suspicion” that the driver is engaging in some type of criminal activity. In this article I will address a commonly raised question – whether an individual had the right to remain silent and whether that right was violated by the police. If you need assistance then contact my office today to speak with a defense lawyer.

The Fifth Amendment to the United States Constitution provides individuals with the “right to remain silent” pursuant to the Miranda decision. A person does not have to be formally under arrest in order for this right to apply. An individual who is approached by law enforcement is entitled to remain silent, and to have an attorney present during questioning, any time the individual reasonably feels that he or she is not free to leave the situation. This means that if the police approach someone on the street to talk to them and the officers create a situation, in which the individual feels that they do not have the right to simply walk away, then the person must be informed of their rights. When determining whether an individual reasonably feels that they cannot leave a situation, the Court will consider how a person of similar characteristics would have viewed the circumstances. This is best explained through an example.

Say the police stop a seventeen year old male who is walking home in the early evening. The young man is stopped when an officer says “would you mind talking to us for a minute?” Now say that the officer has their hand on their holstered gun when they ask this question. It goes without saying that, under these circumstances, most seventeen year old males would feel that they are not free to leave. Accordingly, the young man would have the right to remain silent, and to have counsel present, under such circumstances. When the Fifth Amendment does and does not apply is always a very fact specific question and one should always speak with a lawyer as opposed to making assumptions as to whether or not their rights were violated.

If the police violated an individual’s Miranda rights, and obtain incriminating statements, then it is possible to have such statement ruled inadmissible in Court. This can be crucial in cases involving confessions or other instances in which an individual made a statement against their own interests. It is important that you retain counsel experienced in such matters as, again, these types of cases involve complicated legal issues. As a former prosecutor and a current criminal defense attorney I have handled many cases where an individual was not informed of their right to remain silent. If you or a loved one have been arrested then contact my Peoria office today to schedule an initial consultation.

I also service the cities of Bloomington, Eureka, Galesburg, Morton, Normal, Pekin, Springfield, and Washington. I also serve the counties of Fulton, Knox, LaSalle, Marshall, Mason, McLean, Putnam, Rock Island, Schuyler, Stark, Tazewell, and Woodford. I also handle federal cases in Urbana.

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