Mr. Nenner is a Philadelphia criminal lawyer with over 30 years of experience representing defendants in major felony matters such as murder, drug dealing, gun possession, etc. His cases have been featured in national and local news, including Philly.com, ABC, etc. Mr. Nenner is recognized as a
Individuals accused of crimes have federal and state constitutional rights. These rights come into play in every criminal matter. This article will focus on federal constitutional rights because the U.S. Constitution or federal constitutional law trumps all state constitutional law. This means that the U.S. Constitution provides bare minimum protections that government agencies like the police are required to follow. States, through their own constitutions, can provide additional protections.
The following explanations of constitutional law, specifically the 4th, 5th and 6th Amendments, often apply in criminal cases in Pennsylvania. This article will not discuss other constitutional rights guaranteed by the 1st Amendment (free speech rights), the 7th Amendment (right to a jury trial) or the 8th Amendment (prohibits excessive bail and cruel and unusual punishment).
4TH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCH & SEIZURE/ARREST
The 4th Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
4th Amendment issues usually arise in two contexts. First, did the police search a property or person and seize contraband like guns, drugs, or evidence used in a murder investigation? The key is whether a search or seizure was reasonable. There have been literally hundreds of federal cases that discuss what is reasonable when it comes to searches and seizures. Stop and frisk, car searches, searches incident to arrest and consent searches are just some of the most common search issues.
Second, did the police physically arrest a person, and was that arrest lawful? This is usually an issue in arrests conducted without a warrant, which are allowed so long as the police have probable cause that the individual being arrested committed a crime. Click the link for a discussion on what probable cause is.
5TH AMENDMENT RIGHT TO REMAIN SILENT & 6TH AMENDMENT RIGHT TO COUNSEL
The 5th Amendment provides: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The 6th Amendment provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Defense attorney David S. Nenner speaks with reporters. Nov. 29, 2017 *Photo credit – Philly.com
Defense attorney David Nenner speaks with reporters. Nov. 29, 2017 *Photo credit – Philly.com
When an individual is subjected to “custodial interrogation,” police are required to inform the individual about their right to remain silent and the right to an attorney. A custodial interrogation is when a person is being questioned by police after being restrained (i.e., arrested). A person being questioned on the street while not being restrained in any way would not be subject to custodial interrogation.
When subjected to custodial interrogation, the person being questioned can invoke their right to remain silent. But the law requires an affirmative statement. Staying silent doesn’t count. Read more about invoking the right to remain silent.
Violation of 5th and 6th Amendment rights typically come up when police continue to question an individual who has asserted his right to remain silent and his right to counsel. For example: Police arrest a Philadelphia resident for murder. At the police station, the police begin an interrogation. The individual states he wants a lawyer and doesn’t want to talk to the detectives. He is then placed in a holding cell. A few hours later, a detective starts questioning the individual again, who then admits to the crime. Here, the individual’s statements to the detective would be suppressed due to violation of the 5th and 6th Amendments.
MOTIONS TO SUPPRESS EVIDENCE & STATEMENTS
When police (or a person acting at the direction of the police) violate an individual’s constitutional rights, a successful Motion to Suppress can result in evidence being thrown out of the case. This means that the prosecution cannot present the suppressed evidence during its case or make any reference to it. In many cases, suppressed evidence can result in dismissal of one or all of the charges. For example, in a murder case with little physical evidence, suppression of a defendant’s statements admitting to the murder can result in dismissal of the case, or increase the chances of success at trial.
However, it’s important to note that constitutional law is very complex. Suppression of evidence is not always the end result. There are many legal rulings that allow the prosecution to use evidence that was obtained illegally.
If you are facing criminal charges and believe your constitutional rights were violated, contact our law office immediately. (215) 564-0644