You Have the Right to Remain Silent

February 18, 2017 by
You Have the Right to Remain Silent

You Have the Right to Remain Silent Fool!

YOU HAVE THE RIGHT TO REMAIN SILENT | USE IT

Most people view the fifth amendment as a shelter or haven for individuals who have committed a crime. Invoking your right to remain silent is typically viewed as an admission to criminal conduct. After all, if you have nothing to hide in you have nothing to worry about speaking to the police. Right? You couldn’t be more wrong.

10 REASONS TO NEVER SPEAK TO THE POLICE

  1. If the police already have enough evidence to arrest you, they are going to arrest you no matter what you say. If they don’t have enough evidence, you will probably provide them with enough evidence to arrest you………. even if you are innocent.
  2. There is a reason the United States Supreme Court makes police officers warn you that you have a right to remain silent before they ask you questions. It is because speaking to the police is a bad idea nearly 100% of the time………….. even if you are innocent.
  3. The prosecution cannot introduce evidence at a trial concerning you exercising your right to remain silent. The prosecution will cherry pick your worst statements out of context and use them against you in court.
  4. There is no way it can help. I have seen thousands of people talk their way into getting arrested. I have seen one (1) client give a statement and not end up arrested.
  5. If you are guilty, or innocent, you may admit guilt with no benefit in return. If you admit guilt up front, you lose the ability to negotiate a more favorable plea.
  6. Even if you are innocent and only tell the truth, you will always give the police some information that can be used to arrest and convict you.
  7. Even if you are innocent, only tell the truth and say nothing incriminating, there is still a chance that you will be convicted if the police officers do not recall your statements with 100% accuracy.
  8. Even if you are innocent, only tell the truth and say nothing incriminating, there is still a chance that you will be convicted if the police officers do not recall their questions with 100% accuracy.
  9. Even if you are innocent, only tell the truth, say nothing incriminating and your statement is transcribed, audio or video recorded, you can still be convicted if the police have any evidence that any of the statements you made are false. Even the little white lies.
  10. There are over 10,000 pages of federal criminal statutes and thousands of pages of state statutes. There are in an infinite number of factual scenarios where speaking to the police freely might implicate you in some sort of crime that you did not even know existed.

After all that, remember, you have the right to remain silent.  Exercise that right.

WHY WAS THE FIFTH AMENDMENT CREATED?

The Fifth Amendment was created to protect the innocent, not the guilty. You don’t have to take my word for it, you can take the word of Justice Frankfurter, former associate justice United States Supreme Court. “Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.” Ullmann v. United States, 350 U.S. 422, 426(1956). “The Fifth Amendment’s basic function[s] … is to protect innocent men … who otherwise might be ensnared by ambiguous circumstances. ” See Ohio v. Reiner, 532 U.S. 17, 20(2001).

You Have the right to remain silent. Use it. Refuse to speak with the police without an attorney present. I was admitted to the Florida Bar in 2004. Over the length of my career, I have personally had one (1) client that I allowed to speak to the police during the investigation stage.  A colleague of mine has also allowed (1) client to speak to law enforcement during the investigation stage. Our 2 cases are the only 2 that I am aware of where speaking to law enforcement prior to the filing of charges helped the situation. Those were once in a career cases. I know that I’ll never see another like it.

SOURCES

Please note that I stumbled across this topic while doing legal research for a case. I saw a YouTube video by Regent University Law Professor James Duane which is posted above. It was very informative and I would like to generally site to his video as my source for much of the above information contained herein. Although it has always been my opinion, and almost every criminal defense attorney’s position, that you have a right to remain silent and you should use it.

For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

 

Filed Under: 5th Amendment, Confession, Criminal Lawyer, Criminal Trial, Evidence, Probable Cause, Trial, United States Constitution Tagged With: , , , , , , , , , , , , , ,

Motion to Suppress Everything for Reasons

April 12, 2015 by

The Omnibus Motion to Suppress

Motion to Suppress Because of Reasons

Motion to Suppress Because of Reasons

I started practicing law in Florida in 2004.  I practiced law in both Florida and North Carolina from 2007 to 2011.  I exclusively practice law in Florida now and my license no longer active in North Carolina.  The District Court in North Carolina handles misdemeanor DWI charges. If you’re looking for a Long Island traffic lawyer because of a traffic ticket, call traffic lawyer suffolk county for help with your case.  A defendant did not have a right to discovery in District Court proceedings.  In 2006, the North Carolina Legislature passed NCGS 20-38.6 which required that all motions to suppress and/or dismiss in implied consent cases be made prior to trial.  Most of the time defense counsel would receive a police report, test ticket and alcohol influence report prior to the trial.    However, there was no guarantee that you would get anything since the state was not obligated to provide anything.   This put defense counsel in a position of potentially being required to file a pretrial motion to suppress without any discovery whatsoever.    Failing to file a pretrial motion to suppress was not an automatic waiver of the right to file a motion to suppress.  Any motion to suppress made during trial was required to be based on facts not previously known to the defendant.  Whether to hear the motion to suppress was in the sole discretion of the trial judge.  In my experience, concerning DWI matters, any motion that was not made prior to trial would not be heard.

Necessity is the Mother of Invention and Innovation

The defense bar quickly came up with an Omnibus Motion to Suppress knowing that our crystal ball was unable to predict the contents of the various police reports.  In order to protect your client’s rights, you would simply check all of the boxes and submit the motion prior to or at the first hearing.  You could either amend the motion or withdraw the motion after you received discovery.  The motion has undergone significant changes since I first saw/used it.  The most recent copy that I can find was written by John Fanney and posted on the North Carolina Indigent Defense Services website.  Click here to see a copy of the motion: North Carolina DWI Motion to Suppress 

Reasons for Filing an Omnibus Motion to Suppress

Typically you would want to file a motion to suppress containing a clear statement of the facts and the legal basis to suppress the evidence.  However, that is difficult to do if, for whatever reason, you do not receive discovery.  An omnibus motion to suppress simply states various legal avenues through which evidence can be suppressed.  It does not state any factual basis for applying the legal principals asserted.  A check box omnibus motion to suppress is not necessarily lazy lawyering.  It is a means of protecting your client’s rights when you are being forced into taking a legal position before you know all of the facts.

Kane County criminal lawyer, Matthew Haiduk, publishes a blog titled “Disorderly Conduct.”  Mr. Haiduk mentions his reasoning for filing an omnibus motion to suppress stating “We’d get appointed, not even have police reports, and [the judge would] order that we would have to have any and all defense motions filed within 30 days… even if the trial was 9 months later.”  The entire post is definitely worth reading and can be found here: Setting Every Damn Case for Trial.  A copy of his omnibus motion to suppress is as follows:

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2015/04/omnibus-motion.pdf” save=”1″]

Disclaimer:  I am no longer licensed to practice law in the State of North Carolina and the preceding analysis was commentary only and not intended to be relied on for legal advice.

For more information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

 

 

 

Filed Under: 4th Amendment, 5th Amendment, 6th Amendment, Criminal Lawyer, Discovery, DUI Lawyer, DUI Legislation, Motion to Suppress, Omnibus, Probable Cause, Reasonable Suspicion, Search and Seizure Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Heien v. North Carolina | State of North Carolina v. Coleman | Reasonable Mistake of Law

December 16, 2014 by
Heien Exception

Reasonable Mistake of Law Exception to the 4th Amendment

The United States Supreme Court decided the case of Heinen v. North Carolina on December 15, 2014.  The holding of the case is that the Fourth Amendment is not violated when a police officer makes a traffic stop(seizure) upon a reasonable, but mistaken, belief that a law has been violated.  The standard set forth by the Supreme Court is whether it is “objectively reasonable for an officer in [the searching officer’s] position to think that the conduct violated the law.”

The Supreme Court decision focuses on the text of the statute itself.  It is likely that the application of the Heien exception will be extremely rare and only applicable when the text of the statute is ambiguous, complex or novel.

However, we are not without guidance as there is already case law from North Carolina applying the Heien decision rendered by the North Carolina Supreme Court to a pending state court matter.  The case is State of North Carolina v. Rudolph Coleman.  I argued the Coleman motion to suppress in District Court and it was denied.  Jane Weatherly and I were members of the same PLLC.  She argued the Coleman motion to suppress in Superior Court and it was denied.  The Coleman case was reversed by the North Carolina Court of Appeal.  The Court of Appeal specifically addressed the Heien decision in its opinion and detailed why the Heinen exception does not apply.  Much like the United States Supreme Court ruling, the Court of Appeal focused on the statutory language and compared the difference between the tail light statute and the open container statute.    The North Carolina Court of Appeal ruled that the open container statute was clear, unambiguous and that the officer’s lack of knowledge did not make it “reasonable” in light of the Heien decision.

The Coleman decision may be the only case at this point in time which can provide some clarification as to the application of the Heinen exception.   The relevant analysis can be found on pages 7 through 11 of the appellate decision below.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2014/12/State-of-NC-vs-Rudolph-Coleman.pdf” save=”1″]

 

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

or

The Law Offices of Jane L. Weatherly, Attorney at Law, PLLC, 5 West Hargett Street, Raleigh, NC 27601 (919)615-3408

 

Filed Under: 4th Amendment, Criminal Lawyer, DUI Lawyer, Probable Cause, Reasonable Suspicion, Search and Seizure, Uncategorized Tagged With: , , , , , , , , , ,