Cringe-worthy is each time that a client tells me s/he revealed his or her cellphone ownership or password to the cops. The same goes for every time that clients tell me they admitted ownership or possession of bags, rooms, or other material or places where the police find contraband.

That thing between your nose and chin, namely your mouth, can spell the difference between being prosecuted and convicted, or keeping your liberty. Silence is tremendously golden when an actual or potential police suspect.

Hassan Atkins did not follow the foregoing advice. Atkins v. Virginia, ___ Va. App. ___ (July 5, 2017). After a rash of burglaries in Powhatan County, Virginia, a police officer stopped the car in which Atkins was a passenger, for a moving violation. A search of the car (Atkins apparently did not challenge the search on appeal) revealed a “backpack found at [Atkins’s] feet contained school papers bearing his name, checks payable to [burglary victim] Arborscapes, cameras, and three spark plugs. One of the cameras was the one stolen from [burglary victim] Quality Data Systems.”

The searching police officer also found a cellphone in the car. Atkins then botched matters by admitting the phone was his AND disclosing his cellphone password. OUCH!  The police will not tell suspects of their right to remain silent before being obligated to do so, but people need to know and assert that right. Had Atkins kept his mouth shut the entire time, he may not have got convicted of robbery,  but he did.

On appeal, Atkins claimed that his damning cellphone messages were inadmissible under the hearsay rule, because insufficient evidence showed the messages were from him (making them party admissions if from him). Atkins confirms that for such evidence to be admissible, the prosecution had to prove — and did prove — by “a preponderance of the evidence that [Atkins] was the person who sent the challenged tweet and text messages from his phone.” Had Atkins not admitted the phone was his and had his phone not have been protected by a password that he knew, his argument against such admissibility would have been stronger.

Silence by criminal suspects and arrestees is a beautiful thing. Doing the opposite can be fatal.

Jon Katz defends those charged with crimes in Fairfax County, Arlington County, Northern Virginia and beyond. He will be delighted to discuss your case with you, by appointment set through his staff at 703-383-1100.