Jul 03, 2016 A how-to for police suspects, starting with the power of “no”
Several of my clients get arrested a second and even a third and fourth time. Even though I handed them at the meeting for their first case, my top ten list for dealing with the police, many still violate my original warnings about suspects talking with the police, consenting to searches, and doing field sobriety tests in DWI cases.
When people follow my top ten list for dealing with the police (see here for more detail), they avoid making their situations worse as criminal suspects, and sometimes avoid arrest or else a conviction in the first place.
When I ask my repeat clients why they spoke with the police or did the field sobriety tests, despite my admonition at our first meeting against doing so, they often answer that they wanted to get along with the police.
Get along with the police? Why? Because their elementary school teachers told them that police are our friends and we should cooperate with them? Because police come across as authority figures? Because the suspect fears getting pistol-whipped otherwise? Because they fear worse in their prosecution if they don’t get along with the police? Because they fear getting locked up longer if they do not please the police?
Police are grown ups and will take care of themselves. Police work for us and are paid by our tax dollars; we do not work for nor serve them. Take care of yourself when a criminal suspect, and let police take care of themselves.
When do police ever try to please criminal suspects, versus turning everything the suspect says into a way to probe further and sometimes even to twist around the suspect’s words? Police love suspects who kowtow, because they make it easier to obtain a conviction. Never kowtow to police nor anyone else in life.
One can at once assert one’s rights without being disrespectful to a police officer, whether or not the police officer expresses feigned or real anger at the suspect’s asserting his or her rights, and whether or not the cops pursue the fraud of a purported good cop telling the suspect that the suspect’s cooperation is needed to reign in the bad cop. Exercises for doing so are at my YouTube video and below:
POLICE OFFICER: Where are you coming from?
SUSPECT: I will not answer any questions, officer. [Stating that you will not answer any questions can better protect your refusal not being used against you, rather than merely remaining mute.]
POLICE OFFICER: I want to make sure you have no weapons nor contraband, so I need to search you, okay?
SUSPECT: I refuse all searches (or “No thank you, officer”) [It is very important to make your refusal clear, and never tentative nor mealy-mouthed].
POLICE OFFICER: Only the guilty have anything to hide.
SUSPECT: [Either remain silent or:] Am I free to leave (or: I will not talk nor allow a search without my lawyer present.)
Here are the more pesky issues about what to do with police encounters:
– Should a DWI submit to a breath or blood test for blood alcohol content? In deciding whether to do so, consider the civil (for instance enhanced license suspension) and criminal penalties for not doing so — and whether a refusal will be admissible in a DWI trial — against the risks that the breath or blood test result may enhance the prosecutor’s prospects for a DWI conviction, and even for an elevated blood alcohol level that will mean mandatory jail time.
– What booking-related and pretrial-release questions should the suspect answer? Consider that many police will ask booking questions of an arrestee before telling the suspect about his or her Miranda rights to remain silent, as a way of lulling the suspect into conversation beyond mere booking questions. Beware being lulled into answering police non-booking questions.
– Certain booking questions make sense to answer so as not to be denied pretrial release (for instance, providing one’s name and address). However, what right do police have to one’s phone number, particularly when nobody has an obligation to have a phone in the first place? Police have no right to know one’s immigration status. The Fifth Amendment to the United States Constitution entitles us to refuse to answer police and judicial questions beyond our name and address, and beyond drivers providing their driver’s licenses and vehicle registration in traffic stops.
– Beware your encounter with the judicial magistrate in Virginia and the court commissioner in Maryland. Most are not lawyers, and might ask suspects damningly inappropriate questions (like “What is this case about?” (a question that needs to be left for one’s lawyer)) without advising you of your right to remain silent. By the same token, the magistrate and commissioner decide whether you get released pending trial, and what your bond amount and pretrial conditions will be. Therefore, be polite to the magistrate and commissioner, but that does not translate into answering questions about the alleged criminal incident.
– If the magistrate or commissioner deny you a bond or a reasonable bond, you may petition for a hearing before a judge to grant a reasonable bond.
Once a suspect, if you have the financial resources for doing so, get a qualified lawyer’s help right away. If the cops refuse your request to have a lawyer present, at least you have asserted that right.
Now go and enjoy the rest of the Fourth of July weekend, and remember that Independence Day has less meaning when criminal suspects do not assert their rights to remain silent with the police and to refuse police searches.