I’ve been suspected/stopped/arrested. Now what? A: Gird your loins
NOTE: The following blog entry is a reprint from Thanksgiving week 2012.
Holiday time means more police on the lookout for people to arrest to meet their
arrest quotas perceived obligations to the public. Watch out for speed traps, sobriety checkpoints, police watching for easy targets leaving bars, and more.
Long ago, I lost track of the "aw sh*t" look on the faces of visitors to my office when I hand them my top ten list on dealing with the police or my Just Say No advice of rights video on dealing with police, even though such advice has been on my website for over a dozen years. Once in awhile, a potential client tells me s/he refused a search or to talk to the police, and I am pleased that one more line of defense is available for this person.
Here are some tips to help keep police bored while on the job during the holidays and beyond:
KEEPING THE POLICE BORED – STAYING AWAY FROM THEIR RADAR AND HANDCUFFS
– Practice zero tolerance getting behind the wheel for at least several hour after taking your last sip of beer, wine or alcohol. Better yet, call a cab or limousine, get a hotel room, or use a designated driver. All are less expensive than hiring me if you get arrested.
– Police have a penchant for conducting dragnet arrests for everyone who is in the vicinity of illegal drugs, weapons, stolen property and other contraband. Consequently, think twice about getting into a car with questionable people, beware giving rides to strangers, and watch out if you are at a party or anywhere else where people are toking or snorting it up. Watch out also for those who throw their contraband as far as possible when the police approach; the contraband may fall at your feet.
– If you are with people creating the smoked marijuana stink, you are a target for being searched, and for being arrested for any marijuana and other contraband found nearby.
– Alcohol is a catalyst for many people to act their worst, whereas marijuana tends to reduce violent tendencies. There is little reasoning that can be done with an irrational drunk person at a bar or anywhere else. It is better to bow out of a potential arrest for a mutual affray than to risk getting your head bashed in or being arrested for breaking someone’s nose in self defense. As to marijuana, unless you are in Colorado or Washington, or have the necessary medical marijuana documentation where it counts, I have no comforting words to give you about dealing with police when you have marijuana.
– Alcohol can breed irrational action and criminal action, including sexual assault. Drink moderately, and beware the harmful actions of drunk people.
– Speaking of sexual assault, not only does "no" mean "no", but the question where I practice law is whether the alleged victim consented to sexual activity even if s/he did not say no. If a potential sexual partner has had too much to drink (defining that line is not so easy), s/he might be found by a jury not to have consented.
– Also speaking of sexual assault, casual sexual activity brings such risks as (1) statutory rape (where I practice, there is no defense to having sex with an underage person, even if s/he presents the most genuine looking of fake ID’s), and (2) cries of rape by the partner who feels treated like trash after a one-night stand.
– Unfortunately, no matter how cautious you are about keeping a low profile with the police, you may be targeted for racial profiling, geographic profiling (like when I drove a black car with D.C. license plates (a so-called source drug city) out of state), or stoner profiling. It is wrong and must stop.
WHAT IF THE POLICE STOP OR DETAIN YOU?
– Silence is golden with the police. Even if your arresting officer was your wrestling team buddy in high school, the lines are drawn when the cop suspects you, and the cop is going to choose his or her job security and sense of law enforcement obligations before helping you get out of a jam.
– Don’t think for a moment that your pre-Miranda words cannot be held against you in a court of law. Police know that Miranda v. Arizona, 384 U.S. 436 (1966) does not apply before your liberty is restrained beyond a short moving violation stop nor for basic booking questions at the police station or jail.
– Beware the jurisdictions where pre–arrest silence can be used against you at trial. In such jurisdictions, it may seem a Hobson’s choice between talking and not talking to the police. Beware.
– Your post-Miranda silence cannot be held against you. The police just do not tell you that, because they do not have to.
HOW TO GET RELEASED PENDING TRIAL
– If stopped by the police, it is ideal to contact a qualified lawyer right away, although plenty of them are not so easy to reach after hours (but some, like I, get paged when called). The police may not accommodate such a request right away. However, by asking for a lawyer and saying you will only talk with your lawyer present, you have taken an important step to preserving and protecting your rights.
– Many suspects have a tendency to try to talk their way with police out of an arrest, to try to avoid having to pay for a lawyer, in order to avoid having their loved ones or employers freak out worrying themselves sick about where the suspect is, and to avoid a conviction. Doing so is like struggling in quicksand, often likely to make you sink more quickly towards doom.
– The police are obligated to bring arrestees before a judicial officer within a reasonable amount of time to set prerelease and bond conditions, or to set a date forthwith for a pretrial release hearing. Do your best to get a qualified lawyer at this and every other critical stage of your case.
Rather than trying to give you the heebie jeebies with the foregoing blog entry, when the above tips are followed, more court victories follow.