Re-Blog #5: Face to Face with the Police

Originally Posted: Mar. 8, 2013 - http://batchelorstammlaw.com/2013/03/sleepless-nights/


WHAT SHOULD YOU DO?

  It could be a sunny day, or a rainy night. Maybe your minding your own business or maybe not. Next thing you know you’re face to face with the police. What should you do?

BE POLITE AND NON-THREATENING   There is no law that you have to be nice to the police, but your chances of having a good encounter are much better if you are respectful. It is also important to be non-threatening. Whatever your feelings about the police are, they do have a dangerous job, and if you are being violent it gives them a reason, or at least an excuse, to use force against you.

YOU HAVE THE RIGHT TO REMAIN SILENT: USE IT   If a police officer walks by and says, “nice day isn’t it?” you can probably safely answer that question. Similarly, if you have called the police to help you this would be a good time to talk to them. On the other hand, if you have any reason at all to think the police might consider you a suspect then talking to the police is a bad idea.   Even honest, ordinary, good-hearted citizens can get themselves in bad situations when talking to the police and here is why.

• Inconsistent statements. The police are taking careful note of everything you say and if they do decide to charge you with something down the road you may have to account for all the things you said. Do you think 2 years down the road you will be able to remember and give all the same details you gave the police today?

 

• Providing the police with cause. The police might have no reason to detain or arrest you…that is until you open your mouth then suddenly you is frisked and in the back of a police car. This may be because you mentioned something illegal, like smoking pot, or carrying a giant knife in your pocket, or it could be because you admitted to be in the wrong place at the wrong time. Save yourself the trouble and don’t tell the police your life story.

 

• Confessing a Crime. Usually knowing right from wrong is straight forward, but sometimes we do something a little bit foolish or without thinking it through and that something turns out to be a crime. “Sir, is that your backpack?” “Yeah, it’s cool, huh. This guy just gave it to me on the street ten minutes ago, said it would look good with my shoes. ” If the backpack was stolen you may have confessed to the crime of possession of stolen property.

 

• Confessing Elements of a Crime. Finally you may admit some element of a crime. As you probably know crimes are made up of several parts called elements. For example an assault is usually broken down as: a physically voluntary, touching, of another person without their consent. To be convicted of the crime it’s a prosecutor’s job to prove every one of those elements. Each element you admit now, even if there is a good reason makes it that much easier for you to be convicted. For example, you might admit that you touched someone which in and of itself isn’t a crime. Maybe you bumped into them by accident, or maybe you shook their hand, that’s not an assault, but now that we know the contact occurred there is one less element to be proven, and one less road block between you and a criminal record.

 

• The Innocent have nothing to fear. I could go on, but I want to leave you with this final thought. People say that if you’re innocent you have nothing to fear, but if you Google wrongful conviction you will find a thankfully small but still significant group of people who would disagree. Protect yourself and don’t talk to the police without legal advice.

  YOU DON’T NEED TO CONSENT TO A SEARCH (until you’re detained or arrested)   If the cops ask if they can look in your purse, or want you to show them what’s in your pocket you don’t need to agree. Just say “NO”.

AM I BEING DETAINED?   You have been stopped by the police; they have asked you some questions. You were polite and non-threatening. You kept your hands visible and lowered; you stayed back from the officer’s. You exercised your right to remain silent. You said things like, “I’m sorry I don’t want to talk about it,” and “I know you’re just doing your job but police make me nervous. I’m not comfortable talking to you by myself.”   The police are still talking to you and asking you questions.What happened? Well, contrary to popular belief although you have the right to remain silent the police have the right to keep asking anyway. This is a good time to exit the situation.

Ask the police, “Am I being detained?”   This is the key moment.   If the answer is no then you WALK AWAY.   If the answer is yes, then you ASK FOR A LAWYER.

 If the answer is something else then you repeat the question, “Am I being detained?”   I WANT TO TALK TO A LAWYER.

 You asked if you were being detained and the police said yes or they arrested you, or they said something else but wouldn’t let you walk away. Now is the time to tell them “I want to talk to a lawyer.” Those should basically be the only words out of your mouth until they give you a phone with a lawyer on the other end.   While your mouth is busy saying “I want to talk to a lawyer,” the rest of you should be cooperating at this point. Now that you have been detained the police have the right to conduct a minimal search of your person and things you’re carrying to make sure you don’t have anything that is a danger to them or to the public (ie. Weapons).   If you are under arrest the police have the right to do a full search of you and the items in your possession to secure evidence, determine your identity and for safety. Let them search you. If they ask if you have anything that will hurt them in your pocket, and you do, tell them. Don’t let the police get hurt searching you.

Similarly,   OBJECT, BUT DON’T FIGHT THE POLICE!

So you’ve read this article and now you’re a seasoned veteran of dealing with police. Okay maybe not, but you have a better idea of what your rights are when you’re talking to them and some ideas on how to approach the situation to protect your rights.   Now you’re actually talking to the police and the real world isn’t playing out like the article. You think your rights are being infringed. This is a good time to object. “No, I don’t want you to search my purse.” “If I’m not being detained I want to leave, excuse me please.” “I just don’t want to talk, I’m sorry.” But, and I can’t stress this enough, DON’T FIGHT THE POLICE. If the cop says “I don’t care what you want, give me your purse.” Give the police officer your purse. Let the lawyers sort out your rights down the road.   Why should you cooperate, when they are breaching your rights?  

• I didn’t say cooperate. Tell them you think they are breaching your rights and you don’t want to do it, but if they insist don’t fight it.

 

• You could be wrong. Police do this every day and they make mistakes. Lawyers look at these issues everyday and they make mistakes. Sometimes judges make rulings on these issues that get overturned on appeal, those are mistakes. Let the courts decide who was right and wrong later, the street at midnight isn’t a good time for you to suddenly become a lawyer.

 

• Resisting might be a crime. Depending on how you resist, you might be committing an independent crime. If the police pick up your bag, and you snatch it back from them, you might be committing an assault. Forget whatever the original beef is; now you have a legitimate criminal charge.

 

• #1 Reason – You could get hurt. Remember back in the beginning I said the police have a dangerous job. They are used to dealing with strong violent criminals. I know that’s not you, but if you start resisting, right or wrong, they will probably start using force, and you could get hurt. Why get hurt for nothing?

   

SUMMARY SHEET

  BE POLITE AND NON-THREATENING   Hands visible and lowered.   Keep space between you and the officer.   Lower your voice.

REMAIN SILENT   “I don’t want to talk about it.” “I’m sorry I have nothing to say.” “I’m uncomfortable and I don’t want to talk to you without a lawyer.”

 DON’T CONSENT TO SEARCHES   “May I look in you’re….” “No.” “Can you show me you’re…..?” “No.”

AM I BEING DETAINED?   “No.” - WALK AWAY “Yes.” – I WANT A LAWYER

 “You’re under arrest.” – I WANT A LAWYER

Article authored by:   Cody Walker, Law Student, CD, AA - about the author