Fairfax LEO cooperation implicates Miranda and your Fifth Amendment Constitutional right to a lawyer, says Fairfax criminal lawyer

Fairfax LEO (law enforcement officer) cooperation is a buzzword with many Fairfax County, Virginia, police who seek new drug suspects to investigate, arrest and prosecute. As a Fairfax criminal lawyer, I know that such a police approach is not limited only to police in this county, but do know that a few weeks ago, a Fairfax Circuit Court judge made inadmissible the post-arrest inculpatory statements of a drug arrestee where the police embellished the post-arrest Miranda / right to remain silent (and to have a lawyer present for questioning) litany, with a warning that the arrestee would only have a short timeframe (arguably the day of arrest) to decide whether to cooperate / snitch with the police, and that obtaining a lawyer would likely lead to additional criminal charges for until-then unprosecuted alleged offenses. Commonwealth of Virginia v. Rishav Bhattacharya, Fairfax County Circuit Court Criminal Numbers FE 2022-121 and FE 2022-122 (Fairfax Circuit Court, June 30, 2023) (suppressing all the defendant’s inculpatory statements).

Should I beware the dangers of engaging in Fairfax LEO cooperation / snitching without the advice and assistance of a qualified Virginia criminal defense lawyer?

While I tell potential clients considering giving Fairfax LEO cooperation / snitch help — or snitch help in any jurisdiction — that it is best for them to seek another lawyer for such assistance (because I do not offer such assistance), I still shake my head at Fairfax and any other police officers who pressure or even offer or solicit cooperation / snitching from Virginia drug defendants (for instance under the commonwealth’s prohibition against illegal drug dealing at Virginia Code § 18.2-248, and other criminal defendants) without making available the memorialization of such cooperation between a prosecutor (police are not prosecutors) and the criminal defense lawyer that the defendant obtains. By entering into such a written memorialization (which will preferably be an agreement), your Fairfax criminal lawyer will be able to negotiate for your debriefing and statements to police and prosecutors (and statements made to help nab others involved in alleged criminal activity) will be immunized from prosecution, absent such factors as the Defendant’s testifying on the witness stand and testifying materially differently from what the defendant tells law enforcement and any assistant commonwealth’s attorneys / Virginia prosecutors. Unfortunately, even such a written agreement may not promise the advantages the defendant will be given if s/he cooperates / snitches with police, but at least the written agreement can be fashioned to not punish the defendant with his or her debriefing / cooperating words both at any trial and any sentencing. Furthermore, by turning to the assistance of a qualified criminal defense lawyer for this approach, the defendant is better able to assess and understand his or her options and case risk analysis.

Does calling for a written snitch agreement amount to a radically new concept?

None of the above approach to memorializing Fairfax LEO cooperation / snitch agreement is a radical idea. This memorialization approach has been standard for the Northern Virginia federal prosecutor’s office for years (and probably in the rest of the nation for federal prosecutions, as well). In fact, such prosecutors have fine tuned that approach by often sending targets of criminal investigations a snitch invitation letter (often referenced by criminal defense lawyers as a Mae West letter (referencing this actress’s quote of “Come up and see me sometime”), followed by a queen for a day agreement (meaning that at least the initial debriefing by the defendant to police and/or prosecutors (with the presence of the criminal defense lawyer) will not be used against the criminal defendant unless s/he testifies at any trial and does so materially differently from said proffer. Another practical reason for the criminal defendant’s lawyer to be present during any such debriefing is that if the debriefing is not recorded — let alone reliably recorded — the lawyer’s very presence can serve to make police and prosecutors less likely to inaccurately portray the defendant’s words.

Why do at least some Virginia criminal defendants decline to snitch with police and prosecutors?

Numerous Virginia criminal defendants tell me they do not want to enter Fairfax LEO cooperation / snitch agreements, in that particularly if their likely maximum incarceration sentencing exposure is low, why be known in the jail or prison as a snitch? I totally respect the decision of a Virginia criminal defendant to snitch or not. My own reason for declining to assist with snitching is the short distance between a lawyer who assists with snitching, and the very role of prosecution itself, which I could not stomach handling, and still would not handle it even if I could stomach it.

Fairfax criminal lawyer Jonathan Katz knows the huge challenges and stress faced by Virginia criminal defendants and tackles those concerns while pursuing your best defense against Virginia DUI, felony and misdemeanor prosecutions. You will conclude your initial confidential consultation with Jon Katz (free if in-person and for a court-pending criminal case) more knowledgeable and confident about your defenses. Call 703-383-1100 to schedule your free consultation with Jon Katz. Join with Jon Katz in pursuing as much justice as possible for your case.