Know Your Rights

All individuals within the United States of America have rights guaranteed to them by the Constitution. These rights are what separate and distinguish the United States of America from all other countries and forms of government in existence today. In laying the foundation for this country, the Founding Fathers believed that certain freedoms and rights must be guaranteed to all people in order to avoid the development of an oppressive and tyrannical government. These rights are to be protected at all costs for they are the very foundation of our system of government. Millions have died in an effort to ensure that these rights remain firm and steadfast in the face of an uncertain and hostile world. If the government is permitted to improperly infringe upon these constitutionally guaranteed freedoms, the very core of our nation is placed in jeopardy.

One cannot ensure that the rights and liberties guaranteed by the Constitution remain firm and steadfast if they begin to take on an aura of illusory idealism. Most Americans do not truly know or understand their rights. These rights are real; they are substantive; and they apply to our everyday life. Knowing and exercising these rights is what maintains the balance of power in our system of government. For this reason Benjamin Franklin stated: “This will be the best security for maintaining our liberties. A nation of well-informed men, who have been taught to know and prize the rights which God has given them, cannot be enslaved.”

The attorneys at Gourley, Rehkemper & Lindholm, PLC, are passionate about educating the public about their rights and ensuring that the public not only knows and understands them but are able to exercise these rights in an effort to preserve their freedom. For this reason we have developed the slogan: Know your rights; exercise your rights; preserve your freedom. Nowhere is this more important then in the area of a criminal investigation.

While exercising constitutional and statutory rights may upset law enforcement and potentially lead to a premature arrest, a citizen who knows, understands and effectively exercises their rights will be much better served then an individual who does not. Do not let law enforcement intimidate you with threats of arrest. Prisons are full of individuals that attempted to talk themselves out of being arrested! By talking and consenting to searches and/or testing, an individual provides law enforcement and ultimately the prosecutor with the evidence necessary to potentially obtain a conviction. While all is not lost by cooperating, your best bet is to politely exercise your rights.

Search and Seizure

4th Amendment Definition

The 4th Amendment to the United States Constitution provides that: “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.”


Anytime law enforcement restrains a person of their freedom by telling them to stop or not to move a “seizure” has occurred. This includes a traffic stop. The officer must have reason to believe the individual is involved or is about to become involved in criminal activity or has committed a traffic violation prior to restraining the person of their freedom. When an individual in public is approached by law enforcement they have the right to walk away and go on about their business. If law enforcement orders them to stop and talk to them, “reasonable suspicion” of criminal activity must be present or the stop is illegal.


The general rule is that in order to search a person’s house, property, vehicle or person, law enforcement must have first obtained a search warrant supported by probable cause and signed by a neutral judge. There are exceptions to the search warrant requirement, the most common of which is consent. An individual can consent to the search and a warrant is not required. However, an individual also has the absolute constitutional right to refuse consent to search and can require law enforcement to first obtain a search warrant if they have enough evidence. Refusal of consent may not be used against the person to get a search warrant or in a future criminal prosecution, if any.


An arrest of an individual must be supported by probable cause to believe that they committed a criminal offense. Probable cause must be based upon a reasonable interpretation of the objective facts available to the officer at the time action was required. The question is: do the facts known to the officer at the time of the arrest, warrant a reasonable person in believing that the individual committed the criminal offense?

Miranda Rights

5th Amendment Definition

The 5th Amendment to the United States Constitution provides that an individual cannot be forced in any criminal case to be a witness against himself. You have the right to remain silent when questioned by law enforcement. This right to remain silent may be exercised at any time when your answer to any question in any circumstance may potentially incriminate you in a criminal proceeding.

What are Miranda Rights

In the United State’s Supreme Court case of Miranda v. Arizona the Supreme Court set forth an additional protection for individuals arrested for a criminal offense. This protection is commonly referred to as the “Miranda warning.” This warning must be given by law enforcement prior to interrogating a suspect after they have taken him/her into custody. It warns the individual prior to questioning that anything they say in response to questioning by the police can and will be used against them in the criminal prosecution and that they are further entitled to the assistance of an attorney and to have the attorney present during any questioning.

This warning does not have to be read to all individuals who are arrested and law enforcement’s failure to read this advisory does not automatically result in dismissal of the charge(s). If the court finds that this rule has been violated, the statements obtained during the questioning are merely held to be inadmissible during the State’s case in chief. If the defendant takes the stand and testifies, these statements under the proper circumstances may be used by the prosecutor to impeach the defendant.

Right To Attorney

The 6th Amendment Definition

An individual has the constitutional and statutory right to have an attorney present during any police initiated questioning. The suspect cannot be required by law enforcement to answer questions unless counsel is present if the request is made. In fact, once the request for an attorney is made, law enforcement may not reinitiate questioning of the defendant regarding that charge. Once charges are filed the individual also has the right to be represented by counsel during the court proceedings. If the individual cannot afford to retain private counsel, he/she has the right to request that counsel be appointed at State expense.

Right to a Speedy Trial

Every person charged with an indictable crime (serious misdemeanor up to Class A Felony) in Iowa has the right to a speedy and public trial by a jury. This prevents the State from dragging a prosecution out forever, leaving a person in constant fear and anxiety of when they will ultimately be brought to trial. The right to a speedy trial is protected in both the Iowa and United States Constitutions, as well as Iowa statutory provisions which provide for a speedy indictment and a speedy trial.

Iowa law provides that anyone charged with a serious misdemeanor up to a Class A Felony has the right to a speedy indictment. This means that the State has a limited period of time in which they can file an indictment (often called a “trial information”) against a person charging them with a criminal offense. In Iowa, the trial information must be filed within 45 days after an arrest. If it is not filed within 45 days after an arrest, the court must order the charge dismissed, unless good cause is shown for the failure to timely file the indictment or the defendant waives their right to a speedy indictment. Good cause is difficult for the State to establish, especially now that many of Iowa’s courts are transitioning to a centralized electronic filing system.

Iowa law also protects a person’s right to a speedy trial. A person charged with an indictable crime in Iowa must be brought to trial within 90 after the trial information or indictment is filed. If a trial has not begun within 90 days after the information being filed, the court is required to dismiss the charge, unless the defendant has waived their right to a speedy trial or good cause has been shown. It is also important to note that the Defendant’s own actions can result in a delay of speedy trial being attributed to the defendant and no speedy trial violation occurring.

Even if the defendant waives their right to a speedy trial within 90 days, all criminal cases must be tried within one year after the defendant’s arraignment date, when the court formally approves the charge against the defendant set forth in the indictment, unless the court finds that there is good cause for an extension of time to be granted.

A slip-up by the prosecutor can sometimes result in a charge being dismissed for failing to follow procedure. In today’s fast paced world, the State sometimes forgets to follow the deadlines set forth for them by Iowa and federal law. In those cases, you need a meticulous, detail-oriented attorney who will diligently monitor those deadlines and hold the State accountable to the timelines set forth by law.