A Look at Pirtle Warnings – What Officers Must Say Before Searching Your Car or Home
Most people today are well aware of the Miranda rights that are typically read by a police officer right before they are arrested and put into custody.
The Miranda rights can be used to protect an individual from saying anything that may incriminate them. These rights are invoked when a person in any way indicates that they wish to remain silent and they no longer wish to take part in the interrogation, the police officer must cease in asking questions. Miranda rights are the rights that are invoked when someone uses the common phrase of “I plead the 5th.”
So how do you know when to invoke your Miranda rights? The test is whether the person being questioned is “in custody” which is assessed in terms of how a reasonable person in the suspect’s shoes would perceive his or her freedom to leave. If you do tell the police you wish to remain silent, you must still answer basic questions such as your name, date of birth, and where you live. You can also still be patted down for weapons in order to protect the police officer’s safety.
In conclusion of this very brief summary of Miranda rights, it is often advisable to answer the typical information gathering questions police officers will ask such as your name and date of birth. However, if those questions start getting to asking if you have any drug paraphernalia on you or if you will let the police search your vehicle, this is the time to invoke your Miranda rights, even if you have “nothing to hide.”
In addition to Miranda rights, individuals are given a similar but now as well know set of rights called Pirtle rights. While Miranda rights apply mainly to interrogations, Pirtle rights are geared towards police seeking your consent to search your vehicle or place of residence. A person who is asked to give consent to search while in police custody is entitled to the presence and advice of counsel prior to making the decision whether to give such consent. This right, of course, may be waived, but the burden will be upon the State to show that such waiver was explicit, and, as in Miranda, the State will be required to show that the waiver was not occasioned by the defendant’s lack of funds.
Essentially, if police start asking you questions about what you have in your vehicle or residence, all you have to say is you want to speak to an attorney before you decide and the interrogation must stop there and the police will either be forced to obtain a search warrant by having a judge find probable cause to search your vehicle or residence or wait until after you speak with an attorney about the search. Additionally, if you invoke your Pirtle rights, the officer you said this to must alert all other officers that you want to speak to an attorney before they can move forward with questioning or a search. This is so even if it has been awhile since you told the officers you want to speak to an attorney or wish to remain silent and the officers try to start asking you questions again. It is typically advisable to speak with an attorney before any search on any of your property is completed.
However, there is one exception to the Pirtle rule that police need consent or a search warrant to search your vehicle which is explained in United States Supreme Court Case Arizona v. Gant. In that case the Supreme Court held that an officer who makes an arrest during a traffic stop, such as driving while suspended, can only search the vehicle if: (1) at the time of the search, the arrestee is unsecured and within arm’s reach of the passenger compartment, or (2) it is reasonable to believe that evidence related to the crime of arrest is located within the passenger compartment.
So how would this exception be applied? A frequent fact pattern we see is a person is pulled over for a traffic violation (think a speeding ticket or driving with a suspended license) and when the officer is conversing with the driver they say they smell raw marijuana emitting from the vehicle. In this case, the officer has a reasonable belief that evidence of marijuana may be in the vehicle and would be allowed to conduct a search.
In summary, it is almost always advisable to seek the guidance of an attorney before speaking to the police in-depth about an ongoing investigation. An experienced attorney can walk you through the options and can explain the solutions. If you or a loved one are facing a pending or potential criminal case, call the experienced Indianapolis Criminal Defense Attorneys at Banks & Brower, LLC. today at 317-870-0019 or email us at info@banksbrower.com