What can I do to protect myself from the police?
Since in general the police need a reason to stop, question, search
or arrest you, it's very important for you to know your rights,
in order to avoid unintentionally giving the police evidence in
a criminal case against you. When clients are interested, I always
discuss my client's rights and ways to protect them. Sometimes this
information is only helpful if you are ever in contact with police
in the future, but it's handy to know whether or not you're charged
with a crime.
Basic facts to know when you have an encounter with the police:
1. You have no obligation to talk to the police, ever, unless
you are subpoenaed to come to court and asked questions by a lawyer
in a hearing. Stand firm when you are asserting your right to
remain silent. Police may tell you they will do something (like
arrest you) if you don't talk to them. In general, if they have
enough evidence to arrest you, they will whether or not you talk
to them. Rarely, if ever, can a person talk his or her way out of
an arrest if the police believe they can make a case in court against
the person. Most often, when people being investigated talk to the
police, they wind up providing the police with a little bit of information
that the police didn't have before, making the case against them
worse when it gets to court. If the police want to talk to you and
you refuse, and then the police arrest you, if they didn't have
the proper factual basis to arrest you your lawyer can challenge
the arrest in court. If you've tried to talk your way out of an
arrest, and the police arrest you anyway, all the things you told
them will be brought out as evidence against you, and usually misinterpreted
2. If you want to talk to the police, request permission to
speak to a lawyer first, get the officer's phone number, and
have the lawyer call the officer to arrange a time when the lawyer
can advise you during the interrogation.
3. Police don't have to tell you the truth of what they're looking
for when they arrive at your house or ask to speak to you "voluntarily".
It's frustrating, but it's legal for them to lie.
4. You never have to let the police into your house. When
they have a search warrant, you should let them in, because
they can break the door and barge in if they want. When they have
an arrest warrant, you should come out of your house to be
arrested, because otherwise they can barge in to look for you, and
then search the inside of your house once they're inside. If
they have a warrant, you should ask the police to show it to
you before letting them in. But if the police have no warrant
at all, you do not need to let them in. Often the police will
tell you they will get a warrant if you don't cooperate. Let them,
they may be bluffing. More people than I can describe become their
own worst enemies in court by agreeing to let the police do something,
thinking they'll get a break later, only to find that their own
agreement, or statements, are what led the police to gather the
evidence against them.
5. If you're walking on a street and a police officer wants
to talk to you, you do not have to stop and talk to them. Tell
them (politely) that you're busy, and keep going on your way. If
they already have a reason to arrest you, they probably will. But
if they don't, they may try to talk to you to gather the additional
information they need to arrest you. Your stopping to talk to them
may be deemed to be "consensual" in court, and not a violation
of your rights. Be aware that the police are often looking for
something other than what you think they are looking for. Usually,
when they talk to you (on the street, in your car, or in some other
public place) they will examine you (without your knowing it!) for
signs of being under the influence of alcohol or drugs. There is
nothing you can do about some of these indicators, as they pertain
to things like the amount of moisture in your mouth, the smell of
your breath, and the size of your pupils. I advise clients not to
voluntarily stop and talk to the police in part because often during
these "consensual encounters" the police will see "symptoms"
of what could be drug influence that they couldn't have noticed
if you just kept going when they "asked" to talk to you.
6. If you're in a car, the police need a specific reason to
hit their red lights and pull you over. Be aware of the condition
of your car and the rules of the road, to avoid giving them such
a reason. The most common traffic violations that I've seen, which
give the police reason to pull you over, are: no current registration
tags, a brake light or headlight out, failing to signal while turning
or changing lanes, failing to come to a complete stop, speeding,
weaving (even within your own lane - that's considered "suspicion
of drunk driving"), and changing lanes over a solid white line.
If the police pull you over and you have not apparently violated
any law, always be polite, but remember your case might be successfully
challenged in court because your constitutional rights were violated.
7. If the police pull you over for a routine traffic stop,
you do not ever have to give the police consent to search your car.
Sometimes the police will suggest that you must consent or they
will arrest you. They are lying; failure to consent to a search
is not grounds to arrest you, the police need something else to
justify an arrest. If the police have a lawful reason to search,
they are going to no matter what, you don't need to give them consent
to do so (it just makes their case easier to prove in court). You
should tell them clearly and firmly that you do not give them permission
to search, or they may interpret your silence as implied consent
Were my rights violated, and if so, what can I do about it?
This is a question that can only be answered in consultation with
a lawyer, after a review based on the facts and circumstances of
each case. The answers I'm giving on this page are intended to be
used only as general advice, and should not be relied upon for any
particular case without consultation with a licensed attorney. However,
whether you hire me or another lawyer, here are some things about
your legal rights and your criminal case which you and your lawyer
will want to discuss:
Your rights are more than mere "technicalities", they
are benchmarks to be used to make sure that procedurally you get
your fair day in court, and to ensure that the government doesn't
overstep its bounds with its vast resources and show of authority.
Our Constitutions (federal and state) offer us protections against
government without boundaries. Some protections are considered so
valuable that it's as if the people who set up our country said,
"If the state is wrong and the individual is wrong,
the individual wins." In many instances, mistakes made by law
enforcement officers can enable your lawyer to convince the judge
to keep the evidence against you out of court.
Whether or not your rights were violated depends on two things:
the details of your case, and the state of the law when you are
brought to court. New laws are passed all the time, or new judicial
decisions are rendered, which require your lawyer to stay up on
the current developments in order to advise you properly on whether
your rights violations can be raised as a defense in court. For
my clients, I seek to identify areas in their case where their rights
may have been abused, and I fully research and discuss my findings
with my clients to present them with the widest range of possible
options that can help their case.
Many people think that they cannot be prosecuted if they are not
read their "Miranda rights". This is not true: the general
rule is that the police only need to have read you your Miranda
rights if they intentionally question you while you are in custody,
and the prosecutor seeks to use your statements against you
in a court hearing. Some of your rights come into play by the procedures
used by the D.A. in court, because you are entitled under the Constitution
to a fair trial with "due process" of law. Many of your
rights come into play when the police have gathered evidence against
you, for in general the police need consent, or a good reason to
think they'll find evidence in a particular place plus a search
warrant or an emergency in order to search you, or your stuff. When
you're driving a car you have less rights than when in a private
home, but the police need a specific reason to stop you and pull
you over before they can start their investigation process.
Whatever the circumstances, I will work with you to see that I
use any potential rights violation to your best possible advantage
in a criminal prosecution.