Criminal Defense

Your Rights Once Arrested


Increasingly, I am asked what I should do if and when I am arrested. This is a complicated issue, but let me explain the primary concepts; regardless of whether you are white or a person of color. This article is more detailed than most of my others, so take your time and read it thoroughly. Your freedom might depend on it! In short, KNOW YOUR RIGHTS.

Initial Actions

When stopped by a police officer, keep your hands in plain site; preferably on the steering wheel. Take a deep breath as the cop arrives at the window and be as courteous as you can be. Cops are trained to be friendly on these stops and most are, so provide that respect back. Do not be sarcastic or mean when asked why you were stopped.[1]  If you have a gun or hunting knife in your vehicle, announce clearly when the cop arrives at the window that you have the weapon and in the case of a gun, a valid CCW Permit[2]. Hopefully this is true.

Plan ahead for this and have your ID, proof of insurance, and car registration readily accessible.  If you go to the glove compartment to retrieve these items, move slowly and narrate your actions to the cop as you go so there are no surprises. If you lack of one these documents, explain to the officer why.  If you license is under suspension, hopefully you will have a good reason why you are on the road, e.g., going to hospital due to a family emergency, etc.

The 4th Amendment

If the officer asks you to exit the vehicle, exit the vehicle. Need be you can attack the constitutionality of this request later. For now, do what is being asked. Case law is clear that government representatives generally have wide ranging rights to inspect or search your vehicle since vehicles can be driven away and hidden. Any part of the vehicle that is not considered a separate and locked compartment can be easily searched.  If you have a separate, locked safe or compartment in the vehicle, the cop must impound the vehicle and get a search warrant based on probable cause to access the locked compartment. You can ALWAYS challenge the constitutionality of the search under the 4th Amendment of the Constitution, administered to Ohio via the 14th Amendment. DO NOT try to argue this matter while at your vehicle. It will not end well and chances are the police officer will not be equipped to deal with the legality at that moment anyway, even though they are trained in this area at the Academy (we hope).

Search and Seizure and Terry Stops

If evidence is seized from the vehicle, it is important whether you are arrested or not.  Search and seizure incident to an arrest is easier for the State to defend than an “expedition mission” without an arrest.

As for your person, cops are always allowed to do a Terry Stop[3]. The search must be “reasonable” as legally defined, and limited to safeguarding the police officer/s. Excessive searches can lead to suppression of any weapons or other evidence searched and seized in a latter hearing.

Miranda Warnings

As for questioning, you can be arrested without being “Mirandized”.[4]  However, once you are “in custody”, you must be read your rights BEFORE being questioned.  If not, whatever you say can and should be suppressed and thrown out. Furthermore, any evidence found or produced after an illegal, custodial interrogation (be it at the car, in their car, or at their station)[5] can be challenged as “fruit from the poisonous tree”[6] and suppressed as well.

It is never a bad idea to provide NO answers as to the evidence or alleged offenses while you formally and audibly, yet respectfully, request a lawyer. This is your legal right and does not indicate that you are guilty of anything. An elderly family member once told me “…if I have nothing to hide, why should I not just answer questions right away”. Though innocence is presumed, not all cops are honest and they can openly lie to you to gain insight into a case. Sadly, as a defense attorney, I tell my clients to assume that the cops are not your friends in these specific instances and to SHUT UP until we get involved. Plus, though our Constitution is under attack right now, we must know and defend the Bill of Rights and our protections under the law.

This is but a thumb nail sketch of your rights and our suggestions on your expected behavior.  Be courteous, know your rights, and protect those rights so that your lawyer can provide the most effective representation to you down the road. We will add more detail in future articles. Feel free to contact me directly or chat with my staff on-line at

[1] Realize that a cop can stop you for pretty much any reason they choose; speeding, driving erratically, broken light, etc.  Your chances of getting charges thrown out merely on the probable cause for a stop is unlikely.

[2] In Ohio, you can transport a gun in your vehicle without a CCW, but in that case the ammo and gun must be kept in separate parts of the vehicle and not in easy access to the driver.

[3] This right is based on the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), which allows government representatives to search your person reasonably to protect themselves against potential ambush or attack. This is in contrast to such programs as New York City’s Stop and Frisk, which was deemed discriminatory based on racial bias.

[4] Miranda v. Arizona, 384 U.S. 436 (1966) mandated the reading or your rights to remain silent and to legal counsel prior to formal custodian questioning.

[5] The concept of being “in custody” is a complex one, but as a very general rule, if a reasonable person would not feel the ability to simply walk away from the government agent/s, that person should consider him or herself “in custody” and therefore due related constitutional rights under the 5th and 14th Amendments. Custody in this context is synonymous with restraint of liberty and does not necessarily mean actual physical imprisonment.

[6] There is an extension of the exclusionary rule established in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). This doctrine holds that evidence gathered with the assistance of illegally obtained information must be excluded from trial. Thus, if an illegal interrogation leads to the discovery of physical evidence, both the interrogation and the physical evidence may be excluded, the interrogation because of the exclusionary rule, and the physical evidence because it is the “fruit” of the illegal interrogation. This doctrine is subject to three of important exceptions. The evidence will not be excluded (1) if it was discovered from a source independent of the illegal activity; (2) its discovery was inevitable; or (3) if there is attenuation between the illegal activity and the discovery of the evidence. Wong Sun v. United States, 371 U.S. 471 (1963) is the seminal case that allowed “poisonous fruit” evidence to be suppressed.

But He’s Guilty, Right?


Mark J. Bamberger, Esq., Owner/Attorney and Counselor at Law
The Mark Bamberger Co., LLC

One of the most challenging, yet most satisfying areas of my practice is criminal law. I have been asked more than once, and even by family members, how can I defend a suspected murderer, rapist, drug offender, or intoxicated vehicle operator when I know (or at least strongly suspect) s/he is guilty. Admittedly there are times when it is difficult, but two tenants of our common law legal system are:

  1. the presumption of innocence; and
  2. the right to competent legal counsel. Everyone, even the most loathsome among us, deserves a competent, compassionate criminal defense and a just and non-discriminatory sentence.

In many cases, though the dispositive evidence against them is overwhelming, our clients come to us simply to explain and then guide them through the legal system. Many clients openly admit their offense/s, but just want “a fair shake”. My experience has been that the vast majority of our clients are truly contrite about their transgression. They know they have done wrong and my job is to get them a reasonable sentence or reduced charge so that they can become a meaningful contributor to society again.

The bottom line is this – crime should be punished. But in most cases, there is another end than one’s life being ruined by a mistake or bad choice. We are here to make sure that our clients get the best possible outcome from a difficult situation and, where possible, move forward into a brighter future.

MJB, 1/17

Appeal this!

US Appellate Court Justice Douglas Ginsberg

On TV, whenever someone is convicted in criminal court, they immediate are told by their legal counsel, “We can appeal”.  The expectation is that anyone can appeal a criminal conviction.  Oh contraire!

There are only certain circumstances in which a convicted felon can file an appeal.  First of all, the appellate attorney (who may or may not be the trial counsel) has to have solid grounds.  Even though a case can be “appealed as of right”, that does not mean it can be realistically appealed.  The client must find that either the judge made an error in ruling on the pertinent law or instructing the jury or the jury formed their opinion based on a bias or  the defense attorney fail to do the best s/he could do for the client.

If an appeal is feasible and the attorney is ethically ok with doing it, a “Notice of Appeal” has to be timely filed to the appropriate court.  If it is not timely, the client better have a darn good reason to file it late, lest s/he be turned down off the top.  In some instances, the time to file an appeal can be “tolled” (stopped) due to one reason or another.

If the Notice is timely, the higher appellate courts have right of certiorari (literally meaning the right to “be more fully informed”) of the case before they decide to accept it.  This is especially true of the Ohio and federal Supreme Court, which turns down far more cases than they accept for deliberation.  The first level about the trial court is the State district Court of Appeals, who statutorily have to rule on appeals as of right.  Many others do not.  You can think of the federal system as a mirror of Ohio courts, except for federal questions (like violations of federal constitutional or federal regulations) or cross-state concerns (“diversity”).  Federalism (mainly defined in the 10th and 11th Amendments of the U.S. Constitution) mandates that States are sovereign and can only be trumped by the federal courts under specific conditions (see my article “The Civil Side of Litigation” for more discussion on this topic).

If our case is accepted, the moving attorney files an “Appellate Brief” to the court.  This is followed by a “Response” from the prosecutor (either state or federal).  At that point, the Appellate court decides to either: (1) accept the Defendant-Appellant’s argument; (2) deny the argument; or (3) docket the case for oral hearing.

It is rare that an appellate court will hear a case “de novo” (“anew”).  Usually, they go only on the record established from the trial court.  In other words, they hear no new evidence and examine no new witnesses; only rule on the law before them as established in the record handed to them by the lower trial court.

In the uncommon case when (1) happens, the case is usually remanded (sent back) to the trial court that heard the case for another trial, perhaps full and perhaps only on the strictly remanded portion, say sentencing.  If (2) happens, the only recourse is to appeal to the next higher court of appeals, which may well decline certiorari unless the case poses a new or at least intriguing legal question.  In the rare case (3) happens, both sides are scheduled to argue their points “to the bench” (in front of the judges).

In summary, if a client asks for an appeal they have to forewarned that it is a lengthy and potentially expensive process; and by the way, the success is usually low of winning there.

MJB  2/10

Criminal Defense

An arrest is one of the most traumatic events an individual or family can endure. It can impact a clients’ well-being, livelihood and future. At The Mark Bamberger Law Co. LLC, we are dedicated to obtaining the best possible outcome for each criminal defense client. Contact an experienced criminal defense attorney at (877) 644-8181.

Company founder, Mark Bamberger puts his experience to work protecting the rights of criminal defendants.

We are often are able to deal with the police before charges are filed, sometimes helping to limit charges that ultimately are brought against our clients. We thoroughly investigate each case and present an honest assessment of a cases’ possible outcome. We have experience crafting aggressive and successful trial strategies and will pursue a favorable plea agreement or reduced sentence when it’s appropriate.

Clients find we do all of this with care and discretion and keep them informed through every step of their case.

We handle a wide range of felony and misdemeanor cases, including:

* White-collar crimes – Fraud, bank fraud, bribery, forgery, insurance fraud, money laundering and tax evasion.
* Drug crimes – Manufacturing, possession and distribution of cocaine, methamphetamine, heroin, and marijuana.
* Violent crimes – Aggravated assault, simple assault, robbery, arson, homicide, murder and hate crimes.
* Sex crimes – Rape, sexual assault, molestation, prostitution, date rape, indecent exposure, pornography and child abuse.
* Property crimes – Burglary, theft, trespass, vandalism.

For more information or to schedule a consultation, send an email to Mark Bamberger, or call us at (877) 644-8181.