criminal law in south carolina - frequently asked questions
What
should I do if the police stop me and ask me questions?
Cooperate, but
don't incriminate!
As attorneys who practice criminal law in South
Carolina, we know that law enforcement officers have a duty to protect the
community they serve, its citizens and their property. South Carolina
criminal law lawyers are aware that the law gives
police certain powers to help them perform that duty. They have the
power to approach persons and ask them questions. Simply because you are
approached and questioned by the police does not mean you are suspected of
having committed a crime. All citizens are encouraged to cooperate with
the police to see that those who break the law are brought to justice, and
the police rely on law-abiding citizens to do so. But you are not required
to incriminate yourself. YOU MAY REFUSE TO ANSWER ANY QUESTION IF THE
ANSWER WOULD TEND TO INCRIMINATE YOU.
Suppose you are walking down a street
when a police officer confronts you and announces: “Stop. I need to ask
you some questions.” A person is “stopped” when an officer uses enough
force, or a show of authority, to make a reasonable person feel he or she
is not free to leave. In this example, the officer called out for you to
stop, and may have used his or her authority to make you do so. If the
officer pulled out a weapon or used a threatening tone of voice, it would
be even more clear that a stop has taken place. Because the officer is
interfering with your liberty to move about, he or she should first have a
reasonable suspicion that you have been involved in a crime. This
suspicion would need to be supported later (if the matter should wind up
in a court) by the officer’s reference to specific facts prompting such a
suspicion.
The police do not have to tell you that you are a
suspect or that they intend to arrest you, but if they use force or a show
of authority to keep you from leaving, it is likely they consider you a
suspect. They may consider you a suspect even if you were the person who
called the police. If they read or tell you your Miranda rights, they
suspect you have committed a crime.
Just as when an officer merely
approaches and questions you, you have the right, if you are stopped, to
refuse to answer any questions if the answer would tend to incriminate
you.
Further, anything you say can be used as evidence against you.
Sometimes people think that what they are saying won’t incriminate them,
when in fact, what they say provides a link in a chain of information that
could incriminate them.
Even if you believe the officer has no
grounds to stop and question you, do not argue with or resist the police.
Arguing or resisting the police will not help you; it may increase your
chances that the police will arrest you and bring criminal charges against
you. It will probably also give them grounds to bring even more criminal
charges against you, and it may make it harder for you to get out of jail
on bail if you are charged. Once officers no longer have grounds to detain
you, they should tell you that you are free to go before asking if they
can search you or your car.
What are my rights if arrested?
First, you have the right to be told why you are being arrested and the
nature of the charges against you (the crime for which you are being
arrested). If you are arrested on a warrant, you have the right to see
the warrant within a reasonable time after your arrest, to read it and
make certain your name appears on it, and to see the charge against
you.
Second, you have the right to be told your constitutional
rights (commonly called Miranda rights) before you are questioned —
not before you are arrested. These constitutional “Miranda” rights
are:
- The
right to remain silent and not answer any questions at all;
- The
right to know that if you waive (give up) your right to remain silent and
do answer questions, the police can use your answers against you in a
court to get you convicted;
- Even
if you begin to answer questions, you have the right to stop answering
questions at any time and to speak with an attorney;
- You
have the right to speak privately with an attorney before you answer any
questions or sign anything;
- If you
cannot afford an attorney and if the crime for which you have been
arrested has jail time as a possible penalty, you have a right to have an
attorney appointed for you (perhaps a public defender) to represent you at
no cost to you before being questioned, and to have that attorney present
with you during any questioning to which you may later agree to submit.
Unlike what you may see on television or in the movies, a
criminal case is not thrown out of court simply because the police did
not read the suspect his or her "Miranda" rights. In fact, the
suspected murderer, Mr. Miranda, of the now famous case, did not have
his case thrown out because his rights were not read to him; rather,
he was retried, convicted, and sent to jail.
Third, you also have the following rights:
- The
right to contact, by telephone or otherwise, a responsible person, to tell
them you have been arrested and what the charges are. You are not limited
to one telephone call if more are needed to contact such a person.
- The
right to refuse any physical or chemical test (such as a polygraph “lie
detector,” breathalyzer, intoxilizer, field sobriety tests or physical
performance tests such as walking a straight line or making other
movements, the look-at-the-pen test, or mental ability tests like reciting
the alphabet or doing math), until you can talk to your lawyer.
- The
right to have your attorney present at any line-up or other identification
procedure in which you are viewed by possible eyewitnesses to a crime.
- The
right to reasonable bail or bond to secure your release from jail unless
you are charged with a capital crime. Usually a judge sets the bail or
conditions of your release. If you are charged with a misdemeanor, and if
no judge is available, the police may, at police headquarters, accept bail
in accordance with rules established by the judge.
-
The
right to be brought before a court as soon as is reasonably practicable
after your arrest, so that you can request a preliminary hearing to test
the basis of your arrest and/or trial to determine your guilt or
innocence.
If
I am arrested, what will the police do?
If you are arrested, the police
will search you for weapons, handcuff you, transport you to jail, and
photograph and fingerprint you for identification.
If they don’t
have a search warrant (a court order allowing them to search), they may
ask you to allow them to search your car, your home and/or your other
possessions. You can refuse to consent to these searches.
You have
a right to be free from unreasonable searches and seizures; most of the
searches for which an officer might ask your consent would require the
officer to first obtain a warrant from a judge — unless you consent and
give up this right.
You have the right to have a judge decide
whether the search is proper before that search is conducted. There is no
penalty for exercising your right to have the judge decide whether to
allow the search. Your refusal to consent to a search cannot be used
against you.
If you are uncertain about how to respond to any
request made by an officer, assert your right to counsel and discuss it
with your attorney first before taking further action on the officer’s
request.
What
should I do if I am arrested or in custody?
Do not argue with the police.
You cannot talk your way out of being investigated, arrested or
prosecuted. Do not try. Any explanation you give the police may give them
more information than they already have, so it’s often wise to save your
explanation and defenses for court.
Avoid conversing with the
police. If you have been arrested, the
police believe you committed a crime. Their job is to investigate and
gather evidence. Telling the police your side without a lawyer present is
usually a bad idea, even if you believe you have done nothing wrong. Only
your attorney and the judge have the power to make things easier for
you.
Pay attention to what happens when you first encounter the
police and afterwards. Try to memorize who was there to see and hear what
happened. Sometimes the court needs to look into what happened to you
while you were in custody. It will help you if you can later fully inform
your counsel about these events, so be observant.
Do not tell your
family and friends all about it or ask non-lawyers for legal advice. It is
possible they may be ordered to appear at trial to repeat what you
said.
Tell your attorney the whole truth. Your lawyer will advise
and defend you no matter what you did or did not do.
Can bail
be reduced?
Sometimes,
depending on the case. Initially, the court sets bail considering
several factors, including the severity of the crime and whether the
suspect is likely to return to court when the case is called to trial
(risk of flight). In deciding whether the suspect is a risk of flight,
the court will consider whether the suspect has ties to the state,
including whether the suspect is a resident of the state and for how
long, whether the suspect has family located in the state, and whether
the suspect has other ties such as gainful
employment in the state.
In legal theory, a defendant is innocent
until proven guilty. However, as a practical matter, the court may set
bail so high (or deny bail) such that the suspect cannot afford to get
out on bond and will sit in jail until the case is called.
As a
general rule, the law presumes that the bail that is originally set by
the judge is the correct amount. Thus, it is best to attempt to get
the lowest bail possible set the first time the suspect appears before
the court. Thereafter, to convince the court to lower bail that was
previously set, you generally need to be able to show a "change in
circumstances." In other
words, you need to be able to show how the case is different (in your
favor) from the time when the judge originally set bail. Other times,
bail may be set by the magistrate's bond court and thereafter reargued
before the Court of General Sessions (a higher court). If the bail
amount is high and out of proportion to the facts and
circumstances of the case, it may violate your constitutional right to
reasonable bail. As a cautionary note, in theory the judge
redetermining bail may decide that the initial amount was set too
low and order that bail be set at a higher amount.
Under
what circumstances can I be arrested?
An
arrest is different from a stop. A stop involves brief questioning in the
place where you were detained. If the officer wishes to hold you for a
longer period of time, or decides to take you elsewhere, such as to the
police station, he or she is no longer just stopping you, but is arresting
you. Because an arrest deprives you of your freedom of movement for an
even longer period of time than a stop, the law limits the instances when
arrests can be made.
1. You may be arrested by a police officer who
personally saw you violate any state statute, city ordinance or federal
law. The law may be a serious crime (a felony) or a lesser offense (a
misdemeanor). The important thing is that the officer sees the
violation.
If the charge is a minor traffic offense, the law
requires the officer to just ticket you (that is, give you a citation that
orders you to appear in court later), rather than arrest you. However, if
you refuse to identify yourself, or if it appears
to the officer that you need medical attention, then he or she can arrest
you on this minor traffic offense.
2. You may be arrested for a
felony, even if the police officer did not personally see you commit the
felony, so long as the officer had “probable cause” to believe you
committed the crime. Later, the court system (not the police) will
determine if the officer’s belief was reasonable and if you are guilty or
innocent.
3. You may be arrested when there is a warrant for your
arrest, whether or not you are aware of the warrant. The police cannot
cancel an existing warrant. They must serve it and arrest the person named
on the warrant.
An arrest warrant is a legal document, issued by a
judge, directing the police or the sheriff to
arrest you and take you into custody. The officer must show the
warrant to you within a reasonable time after you are arrested and give
you a copy. If the officer fails to do so, tell your attorney
later.
Even if you believe the officer has no grounds to arrest
you, do not argue with or resist the police. You have no right to argue
about why you are being arrested or about your guilt or innocence at the
time of the arrest. Arguing or resisting the police will not help you. It
will mean the police can bring additional criminal charges against you,
and it may make it harder for you to get out of jail on bail if you are
charged.
- Again, do not argue with the police.
- Never resist your arrest. Do not run away.
- Never resist the arrest of another person.
If you or someone you know is having legal problems,
call the Futeral Law Firm
locally at (843) 284-5500, toll free at (877) 913-5500, or fill
out our online questionnaire.
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