We’ve all experienced it: that sudden drop in the pit of your stomach when the red and blue lights of a police car appear in the rearview mirror. It doesn’t matter if you think you were breaking a law or not; the mere presence of those flashing lights is enough to send most ordinary people into a state of near-panic. And if the stop is for something other than a minor traffic violation—or if the officer believes there is cause to suspect something more after the initial stop—the police presence alone can cause reasonable, intelligent people to say or do things that needlessly get them into trouble.
And that’s just a traffic stop; the intimidation is far more intense when police show up at your home asking to be let in or when you are placed under arrest. Police know this, and often use it to their advantage. As a result, it is easy for anyone—anyone—to say or do things that could lead to harmful consequences, up to and including false confessions. Therefore, it is of extreme importance to keep your wits about you in any encounter with the police. If you are stopped or arrested, keep the following in mind:
- You must remain calm. The best way to make a bad situation worse is to get into an argument—or worse, a physical altercation—with the police. Don’t run. Don’t fight. Even if you think the police officer is out of line and acting unprofessionally, you should not insult, shout at, threaten, or attack a police officer. Making a threat to an officer can be a crime in and of itself, depending upon the circumstances. You should absolutely stand firm on your rights, but do so politely and courteously. If the officer has done something wrong, you can take it up later with the police department or, potentially, in the courts as part of a civil rights suit. (The one exception is, of course, if the officer is doing something that you reasonably believe puts you in grave danger without the color of authority. If, for instance, a police officer attempts to rape you, then you have every right in the world—and in some states, perhaps the obligation—to put up a fight.)
- Do not do anything that could lead a police officer to even think you might be reaching for a weapon. Police officers all know that any time they make a traffic stop or execute a search warrant, it might be the last thing they do. On average, a police officer is killed in the line of duty every single week. It’s understandable, then, that police officers can be quick to assume the worst and do what they feel is necessary to protect themselves. If you are stopped, keep your hands where the officers can see them. Do not reach into your pocket, a glove box, under a seat, into a cabinet, or anywhere else without first telling the officer what you are doing. This is for your safety and the safety of the officers involved.
- Do not make any statements to the police (beyond your name and address) even if you didn’t do anything. The U.S. Constitution protects your right to remain silent and to not make statements that could implicate you in a crime. Assert this right and exercise it; do not say anything or you waive that right. Even if you think you didn’t do anything wrong, do not make any statement without an attorney present because you may unwittingly say something that sounds innocent to you but that sounds incriminating to the police. If the police attempt to elicit statements from you, say this: “I assert my Fifth and Sixth Amendment rights and will not make any statement without my attorney present.” From this point forward, the police are not allowed to do anything to elicit statements from you: they cannot ask questions, they cannot make statements intended to elicit a response from you (such as “It would be a darn shame if a kid found that missing gun and hurt someone with it”), or anything else. They can, however, use any statement that you make voluntarily against you, and once you’ve made that voluntary statement, they can resume questioning until you again assert your right to remain silent and have legal counsel. So once you’ve asserted your right to remain silent, exercise it.
Note, however, that even though you have a right to not make incriminating statements, you must:
Do not discuss your case with anyone. A common tactic used by the police is to put a suspect into a cell with an informant. The informant’s job is to strike up a conversation in hopes that you will voluntarily say something of use to the police without being enticed into doing so. (Remember, if you’ve asserted your rights to silence and counsel, the police cannot do anything to entice you into making a statement, but they can use voluntary statements.) A typical exchange might go something like this:
- provide your name and address, and show the police your ID (if you have it) upon request;
- show the police your driver's license, vehicle registration, and proof of insurance during a traffic stop; and
- cooperate with standard booking procedures that are designed for administrative processing of prisoners and would not have any implications on your liability for a crime (for instance: your date of birth, if you have any family that should be notified in case of a medical emergency, and so on).
INFORMANT: “This sucks, man. I can’t believe they found my stash. I never thought they’d look inside the body of my guitar.”
SUSPECT: “Next time try putting it inside the lining of the case.”
Such tactics are common. For that reason, do not say anything to anyone about your case. Even if you don’t think anything you’re saying is incriminating, and even if you didn’t do anything, it’s easy for a statement to be taken out of context and twisted into something potentially harmful to you. Discretion and caution are your friends any time you have the potential to be considered a suspect in a crime.
Remember that you do not have to consent to a police search of your person, your car, your house, or anything else. It is amazing how many people think that police have the right to demand to search a car during a traffic stop. The fact of the matter is that the police can not search your car, your house, or any other place where you have a reasonable expectation of privacy without your consent, a search warrant, or probable cause that a crime has been committed and exigent (i.e., “extenuating”) circumstances exist that would make it impossible or highly impractical to obtain a warrant. If the police ask to search your car, the proper response is “Officer, I really don’t think that’s necessary and I would prefer not to have my car torn apart for no reason, so no, you may not search the car.” Usually, the officer will then threaten to get a warrant, to which the proper response is, “Go ahead and get a warrant if you think that’s necessary, but I’d like to know what you’re looking for and why you think you have probable cause to get one.” Your failure to answer questions and/or consent to a search is not grounds for probable cause, and if an officer tries to convince you otherwise, (s)he’s either bluffing or not very well trained. In the former case, the officer will have to let you go unless there’s another excuse to hold you. In the latter, the officer will simply be unable to obtain the warrant. Regardless, you have nothing to worry about if the office is relying on your failure to consent to questioning and/or a search to establish probable cause.
Bearing all that in mind, there are times when the police can conduct a search even without your consent:
If the police attempt to search you, do not resist them. Tell the officers that you do not consent to the search, and make it clear that the search is not voluntary, but do not physically resist. If you physically resist, the officers may be able to make a case for probable cause to arrest you, and at that point you will be searched and there’s nothing an attorney can do for you.
- the police may search anywhere covered by a valid search warrant signed by a judge;
- the police may conduct a search where they have probable cause to believe that evidence will be destroyed, there is danger to one or more people, or there are other exigent (i.e., extenuating) circumstances that make it impossible or impractical to obtain a search warrant;
- if you are arrested, the police may search your person and the area within your “wingspan” (usually interpreted to mean the room in which you are arrested);
- police may conduct a “protective sweep” when they have articulable facts leading them to believe that there may be “bandits or bodies”: individuals who could pose a danger to police, or people who might be injured; and
- when a patdown has created probable cause that you have contraband or weapons.
If the police say they have a search warrant, ask to see it. Read it before you allow officers into the area to be searched and make sure that it lists the correct address and that it was signed by a judge. Pay close attention to what the warrant says may be searched, and make a note if the police search any areas not covered by the warrant. If you let the police into your house, tell the officers that you are not consenting to the search but you are complying with the warrant under protest.
Pay close attention to details. Get officers’ names and badge numbers if possible. Pay attention to how they behave: if they conduct a search, pay attention to how it’s performed. Officers are entitled to conduct a so-called “Terry pat” when there is “reasonable suspicion” of a crime of violence or that the suspect is presently armed and dangerous. Although this search does not require probable cause, it does require that the officer only perform a light pat-down on the exterior of the clothing; the officer is not allowed to manipulate the contents of the clothing or perform any further search unless the patdown reveals something that on its face creates probable cause that there is a weapon or contraband.
Write down these details as soon as you can, while the events are still fresh and clear in your mind. Get witness names, note who was there and where they were, sketch a diagram of the area in which the events took place, and do anything else you can think of to create a record that you can use later to refresh your memory if necessary. Keep this information to yourself, and do not share it with anyone but your attorney.
Ask if you are under arrest. If the police officer says “no”, then ask to leave. If you are not allowed to leave, then consider yourself under arrest. Ask why you are under arrest or being held (you have the right to be told). Immediately ask for an attorney and refer back to the previous paragraph about not making a statement.
If you are stopped while driving and asked to submit to a breathalyzer test, remember that you do have the right to refuse but that your license will almost certainly be suspended as a result of your refusal. You do not have a right to a driver’s license, and one of the conditions of having a license is your consent to take a sobriety test when asked to do so. If you fail to meet this condition, Michigan law says that your license will be suspended automatically. This is one of those situations in which you have to make a decision: if you have been drinking and were then stupid enough to get behind the wheel of a car, it might be better to refuse to take the test and have your license suspended than to take the test, be convicted of Operating Under the Influence of Liquor (OUIL), and then have your license suspended anyway. Of course, refusing to take the breathalyzer test doesn’t guarantee that you won’t be convicted of OUIL, but a defendant who blows a high score on the breathalyzer is almost guaranteed of being convicted.
Remember that the police are allowed to lie to you during an interrogation. Police have a number of tactics at their disposal to use in obtaining incriminating statements from suspects. These tactics may include claiming that someone else has already confessed and implicated the suspect, appealing to religious sensitivities (as in the famous “Christian burial speech” case), blaming the victim or a suspected conspirator, playing “good cop/bad cop”, claiming evidence exists that does not, falsifying polygraph results, and so on. If you are being questioned by a police officer and you have the slightest inkling that you may be a suspect, don’t believe anything the police say. In fact, your best course of action is to assert your Fifth and Sixth Amendment rights and not say anything.
Call an attorney immediately. While you are in police custody, you are literally defenseless and alone. An attorney’s job is to protect your rights and to prevent police abuse from happening, and once an attorney is involved the police are usually smart enough to back off. In most circumstances, you are entitled to make at least one telephone call upon being arrested. This call should be to an attorney, and this call is protected; police are not allowed to listen to any conversation between you and your attorney. (There is an exception under current law: under regulations promulgated by Attorney General Ashcroft after the USA PATRIOT Act was passed, the government is allowed to eavesdrop on attorney-client conversations without a warrant any time the Attorney General of the United States believes that attorney-client communications may be used to “facilitate acts of terrorism.” 28 C.F.R. §§ 501.3d (2002). These regulations are under attack in both the courts and politically, and may be overruled or repealed.)
The American criminal justice system is designed to ensure that no defendant is railroaded into a conviction, and Constitutional safeguards are often the only barrier between a free democracy and a police state in which summary punishment is an everyday occurrence. Yes, we want the police to protect us. Yes, we want the prosecutors to send people to jail. But we want them to do so in a way that ensures that anyone and everyone receives a fair trial. While police and prosecutors are generally honest, ethical people, they do break the rules on a fairly frequent basis. It may come as the result of a simple accident or oversight. It may be that an officer or a prosecutor has become so caught up in the idea that a suspect is guilty that (s)he allows objectivity to cloud his/her judgment. There may even be actual malice involved from time to time. But regardless of the reasons, when the government steps out of line, it’s up to you to assert your rights and protect yourself. A bit of caution and a great deal of vigilance will save you from bearing the brunt of these violations—accidental or not—when you’re faced with the possibility of being accused of a crime.
Steven Shelton is an attorney licensed in Michigan. Although his private practice is based in Fenton, Michigan, he handles criminal defense and general civil litigation cases statewide. You may contact him via telephone at 810-750-1420 or through this website.