In Case of Arrest
In Case of Arrest, what NOT to Do:
I have been practicing criminal law for 24 years and have seen a wide variety of reactions by people who are being arrested. Some of these reactions are unwise but understandable. Others are self defeating to the point of being bizarre. No one plans to be arrested, but it might help to think just once about what you will do and not do if you ever hear the phrase â€œPut your hands behind you.â€ The simplest â€œto doâ€ rule is to do what you are told. Simple, but somehow it often escapes someone who is either scared or intoxicated. More important to guarding your rights and interests are ten things you SHOULD NOT do:
1. Donâ€™t try to convince the officer of your innocence. Itâ€™s useless. He or she only needs â€œprobable causeâ€ to believe you have committed a crime in order to arrest you. He does not decide your guilt and he actually doesnâ€™t care if you are innocent or not. It is the job of the judge or jury to free you if he is wrong. If you feel that urge to convince him heâ€™s made a mistake, remember the overwhelming probability that instead you will say at least one thing that will hurt your case, perhaps even fatally. It is smarter to save your defense for your lawyer!
2. Donâ€™t run. Itâ€™s highly unlikely a suspect could outrun ten radio cars converging on a block in mere seconds. I saw a case where a passenger being driven home by a drunk friend bolted and ran. Why? It was the driver they wanted, and she needlessly risked injury in a forceful arrest. Even worse, the police might have suspected she ran because she had a gun, perhaps making them too quick to draw their own firearms. Most police will just arrest a runner, but there are some who will be mad they had to work so hard and injure the suspect unnecessarily.
3. Keep quiet. My hardest cases to defend are those where the suspect got very talkative. Incredibly, many will start babbling without the police having asked a single question. My most vivid memory of this problem was the armed robbery suspect who blurted to police: â€œHow could the guy identify me? The robbers were wearing masks.â€ To which the police smiled and responded, â€œOh? Were they?â€ Judges and juries will discount or ignore what a suspect says that helps him, but give great weight to anything that seems to hurt him. In 24 years of criminal practice, I could count on one hand the number of times a suspect was released because of what he told the police after they arrested him.
4. Donâ€™t give permission to search anywhere. If they ask, it probably means they donâ€™t believe they have the right to search and need your consent. If you are ordered to hand over your keys, state loudly â€œYou do NOT have my permission to search.â€ If bystanders hear you, whatever the police find may be excluded from evidence later. This is also a good reason not to talk, even if it seems all is lost when they find something incriminating.
5. If the police are searching your car or home, donâ€™t look at the places you wish they wouldnâ€™t search. Donâ€™t react to the search at all, and especially not to questions like â€œWho does this belong to?â€
6. Donâ€™t resist arrest. Above all, do not push the police or try to swat their hands away. That would be assaulting an officer and any slight injury to them will turn your minor misdemeanor arrest into a felony. A petty shoplifter can wind up going to state prison that way. Resisting arrest (such as pulling away) is merely a misdemeanor and often the police do not even charge that offense. Obviously, striking an officer can result in serious injury to you as well.
7. Try to resist the temptation to mouth off at the police, even if you have been wrongly arrested. Police have a lot of discretion in what charges are brought. They can change a misdemeanor to a felony, add charges, or even take the trouble to talk directly to the prosecutor and urge him to go hard on you. On the other hand, I have seen a client who was friendly to the police and talked sports and such on the way to the station. They gave him a break. Notice he did not talk about his case.
8. Do not believe what the police tell you in order to get you to talk. The law permits them to lie to a suspect in order to get him to make admissions. For example, they will separate two friends who have been arrested and tell the first one that the second one squealed on him. The first one then squeals on the second, though in truth the second one never said anything. An even more common example is telling a suspect that if he talks to the police, â€œit will go easier.â€ Well, thatâ€™s sort of true. It will be much easier for the police to prove their case. I canâ€™t remember too many cases where the prosecutor gave the defendant an easier deal because he waived his right to silence and confessed.
9. If at home, do not invite the police inside, nor should you â€œstep outside.â€ If the police believe you have committed a felony, they usually need an arrest warrant to go into your home to arrest you. If they ask you to â€œstep outsideâ€, you will have solved that problem for them. The correct responses are: â€œI am comfortable talking right here.â€, â€œNo, you may not come in.â€, or â€œDo you have a warrant to enter or to arrest me in my home?â€ I am not suggesting that you run. In fact, that is the best way to ensure the harshest punishment later on. But you may not find it so convenient to be arrested Friday night when all the courts and law offices are closed. With an attorney, you can perhaps surrender after bail arrangements are made and spend NO time in custody while your case is pending.
10. If you are arrested outside your home, do not accept any offers to let you go inside to get dressed, change, get a jacket, call your wife, or any other reason. The police will of course escort you inside and then search everywhere they please, again without a warrant. Likewise decline offers to secure your car safely.
Thatâ€™s it: Ten simple rules that will leave as many of your rights intact as possible if you are arrested. How about a short test? You have a fight with your live-in girlfriend and the police come and find you on the sidewalk two houses down from the apartment. The girlfriend points you out and the police arrest you for assault. They tell you they donâ€™t intend to question you. They just want your name and address. Do you answer? Well, you shouldnâ€™t. Your address is the single most damaging admission you could make. If you admit living with her, you have just converted a misdemeanor assault into a felony punishable by state prison. When you are arrested it is their game, and you donâ€™t know the rules. It is best to be silent and let the attorney handle it later. The bottom line is that if the police have enough evidence to arrest, they will. If they donâ€™t, you could easily provide that missing evidence by talking.
A. Brian Dinday
Attorney at Law
–Courtesy of http://www.dinday.com/legalinfo.html#ten
Q: What if the officer says heâ€™ll go easy on me if I cooperate?
A: Unfortunately, many people get fooled by some version of this commonly used police officerâ€™s line: â€œEverything will be easier if you cooperate.â€ That might be true sometimes, but when it comes to consenting to searches and answering incriminating questions, it couldnâ€™t be further from the truth.
Q: Arenâ€™t police required to read me my rights?
A: No. The courts have made clear that police officers do not have to tell people that they can refuse to consent to a warrantless search. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid.
Many people believe that an officer must automatically read a person his or her Miranda rights as part of performing an arrest, either immediately before or immediately after an arrest is made. This is also myth.Â The truth is that the only time an officer must read a person his or her Miranda rights is when: (1) the person has been taken into custody, and (2) the officer is about to question the person about a crime.
Police officers are often pretty tricky about trying to get someoneâ€™s consent to a search. They know that most people feel intimidated by police officers and are predisposed to comply with any request by a police officer. For example, the average motorist stopped by a police officer who asks them, â€œWould you mind opening the trunk, please?â€ will probably consent to the officerâ€™s search without realizing that they have every right to deny the officerâ€™s request.
Q: Are police allowed to lie?
A: Yes. Police are generally permitted to lie if it helps them make arrests. The best example of this is when undercover officers claim not to be police. The rules regarding entrapment usually tip in favor of law-enforcement, so police wonâ€™t hesitate to trick you into incriminating yourself or others. This is particularly common during interrogations in which officers might tell you that â€œyour friend already gave you up, so you might as well come clean.â€
The best defense against these manipulative tactics is to avoid saying anything to police without first speaking with an attorney.
Q: You recommend never lying to police, but what if they ask if I have illegal items and I do? Should I admit to having illegal items? Should I lie?
A: This is a tricky situation. Of course you should never admit to having illegal items, but you should also make every effort to avoid lying to police. Youâ€™re always free to remain silent, and police may not hold your silence against you as evidence of wrong-doing.
Nonetheless, this is a rare situation where some experts secretly recommend lying. The main reason to avoid lying is because police are good at detecting it, but in this case that doesnâ€™t matter as much because youâ€™re already a suspect if they ask about contraband.
The most important thing is to be prepared for the inevitable next question: â€œDo you mind if I search you/your space?â€
Always refuse the search, and remember that you canâ€™t get in trouble for asserting your rights.
Q. What should I do if I am the victim of police misconduct?
A: If you feel that your rights have been violated by police, do not panic. There are several steps to the process of combating police misconduct, and you must approach them in a calm and organized manner.
Step 1: Write everything down
This step is extremely important and must be completed as soon as possible following the incident. Itâ€™s easy to forget small details over time, and thereâ€™s no way to know which facts will make a difference later on.
In your own words describe everything that took place from the very beginning of the police encounter to the end. When quoting yourself or the officer try to use exact words. Be specific about the location, time of day, etc.
Also include witnessâ€™s names and contact information and the officersâ€™ names, physical descriptions, and badge numbers. If necessary, be prepared to return to the scene of the incident in search of possible witnesses. Doing so may also help jog your memory about other important details.
Step 2: Consult with an attorney
This step is essential if you were arrested following the incident. It is optional, but recommended, if you were not arrested.
Victims of police misconduct are often vigorously prosecuted in order to gain leverage in case the victim files a lawsuit. If youâ€™re caught in a situation like this, you need a good police misconduct attorney immediately. Police misconduct cases are challenging, and lawyers meet a lot of difficult people, so separate yourself from the pack by being calm and well-organized. The materials you prepared in Step 1 will help demonstrate that you are a competent defendant whose case is worth taking.
If you were not charged with a crime following the incident, you may still wish to pursue a civil suit against the police department. An attorney will help you determine whether you have a strong enough case. Proving police misconduct is extremely difficult, so your attorney will choose whether to proceed based on the strength of the evidence, rather than the severity of the misconduct. Do not become upset if you canâ€™t find an attorney to take your case, simply proceed to Step 3.
Step 3: File a Police Misconduct Report
This step cannot begin until all criminal charges and civil actions have been resolved. Filing a police misconduct report prematurely will hurt your chances in court by revealing too much information to the police. Of course, if you werenâ€™t charged with a crime and youâ€™re not suing, the complaint should be filed right away.
The materials you prepared in Step 1 will form the body of your complaint. Youâ€™ll be glad you wrote it down back then, because you might be filing your complaint weeks or months after the incident. Where to file your complaint depends on your jurisdiction, but thereâ€™s usually a citizen review board or an office within the police department that accepts them. Entering â€œpolice complaintâ€ + â€œ(name of your town or city)â€ into Google will usually direct you to the correct office. If your town has a civilian review board and an office within the police department that both accept complaints, you should send your report to both offices.
Also take note of whether thereâ€™s an official form that youâ€™re required to use. If so, you may have to transfer the information you wrote down in Step 1 onto the correct form. Failing to do so could result in your complaint being rejected arbitrarily. In some areas you might have to call or visit a police office in order to obtain the proper form. When doing so, refrain from discussing the nature of your complaint with any police officer. Police might try to intimidate you by claiming that your particular complaint has no merit. Worse, they may warn the officers involved, which could lead to a cover-up.
Finally, before sending your complaint, be sure to make copies and place them in a secure location. Send your complaint by certified mail so the police cannot deny having received it. You should also send copies to your local ACLU and NAACP chapters.Â Donâ€™t forget to call SWOP!
Finally, keep in mind that filing a complaint does not ensure a prompt response from the police department or civilian monitoring agency. Police departments receive many complaints, so your concerns wonâ€™t necessarily receive the individual attention they may deserve. Remember that your complaint creates documentation of an incident and could be used in conjunction with other complaints to illustrate a pattern of misconduct. This information is useful to community activists who work to prevent systemic police abuse in your community. Similarly, your complaint could become relevant in the future if the same officer is accused of additional misconduct. In short, your complaint is important even if you donâ€™t get a response.
-Courtesy of SWOP-Chicago. Check out flexyourrights.org for more information: