By the time most people realize they need a criminal defense attorney, they’ve already been arrested. But police often try to informally question a suspect prior to placing someone under arrest, which is why it pays to know what you should and shouldn’t say before you encounter a police officer. Sadly, many people don’t know their rights and end up doing something during their arrest that can hurt them legally. By knowing your rights ahead of time, you can know what to do and what not to do when officers start questioning you. While everyone should know this information, it can be particularly useful to those who know they are under suspicion and are likely to be placed under arrest in the state of California.
Stay Silent When Confronted by the Police
When you’re being arrested, remember that while the police have the right to detain you, you still have rights of your own. One of the most important rights is your right to silence. Whether you have been pulled over on suspicion of drunk driving, have been stopped on the street because police suspect you of a drug crime, or discover police on your front porch asking about someone you know who has gone missing, no matter what you have been arrested for, always invoke your right to silence. This does not just mean literally staying silent, but actually stating that you are invoking your Fifth Amendment rights, saying that you will not respond to their questions until your lawyer is present, or clarifying that you are taking advantage of your right to remain silent.
While police questions may seem innocent enough, police are very experienced at getting suspects to say or do things that will help their investigation. It is all too easy for something you say to be taken in the wrong context and later held against you. Contrary to public belief, you do not need to be read your Miranda rights or even be a suspect to have statements you make to police be used against you. In fact, Miranda warnings are only required for custodial questioning by police meaning you have to be both in custody and be questioned by police.
This is why you should always have an attorney present before you start speaking with the police, even if you want to aid in the investigation. If you do talk to the police though, remember that you have the right to stop speaking with them at any time.
It’s important to recognize that despite what police procedural shows may tell you, refusing to answer police questions cannot result in your being charged with obstruction of justice and cooperating is unlikely to help you later on. On the other hand, if you lie to the police, this can result in your being charged with a crime
Answer Questions About Your Identity
Just as you are required to actually say that you are invoking your right to silence, you are legally required to answer questions related to your identity. This means providing the officer with your name, your home address, and your ID. Do not offer any additional information though, including details about where you have been in the past or if you know a particular individual.
Be Polite as Much as Possible
You are not legally required to be nice to law enforcement officers. In fact, the Supreme Court has ruled that you have the constitutional right to flip them off as part of your First Amendment right to free speech. That being said, things will typically go a lot more smoothly for you if you are kind and respectful. If you are feeling upset, remember that the officers questioning you likely do not have any personal animosity toward you but are just trying to do their jobs. But if you talk trash or threaten to sue them from the get-go, they might start to dislike you, which could give them extra motivation to search you or file charges against you.
Don’t Believe the Police
Just because you’re being polite doesn’t mean you need to believe everything an officer says to you. Cops frequently take advantage of the fact that many people don’t know that the police have the right to lie to suspects even though it’s illegal for suspects to lie to the police. In fact, police often lie about evidence, about keeping things “off the record,” about DNA, gun residue, or similar tests they’re performing or have performed, and more. This is another reason to refuse to speak with the police without your attorney present.
Ask if You are Being Detained
If a police officer keeps trying to question you, you have the right to leave if you are not being detained. Feel free to ask if you are free to go or if you are being detained at any time. If you are free to go, do so.
If the officer says you are being detained, then request to speak with an attorney and invoke your Fifth Amendment. You have the right to hear the charges being brought against you, so if you don’t know why you are being detained, don’t be afraid to ask.
If you want to help an investigation and are not being detained, you can always get the officer’s phone number and then talk with your lawyer before calling him back to discuss the matter.
Don’t Run or Resist Arrest
Just like lying to the police, both trying to flee from the police and resisting arrest can leave you facing criminal charges even if you haven’t broken any other law. If they place you under arrest or attempt to search you, remember that even trying to swat the police officer’s hands away can sometimes result in exaggerated charges like assault on a police officer.
Never Consent to Searches
Do not let the police come into your home and never agree to let police search your property. Unless an officer has a warrant or believes there are exigent circumstances in play, he cannot search you or your property unless you consent, though there are slightly different rules when it comes to vehicles. An officer may search a vehicle in order to arrest of people inside the vehicle, if he sees contraband inside or if he is going to impound the vehicle. While they have the right to look in your vehicle without warrant, they cannot search other things such as your phone or your bag, so never unlock your phone or open your purse or backpack for police.
If the police show up at your home and ask to look inside, ask to see their warrant and tell them you want to speak to your lawyer. Do not invite an officer into your home without your lawyer present as anything in plain sight can be used as evidence against you.
While search and seizure laws can be complex, if they have the right to search your property and have grounds to do so, they’ll do so even without your permission. If not, they’ll either need to wait for a warrant, get your permission or be prepared for any evidence they uncover to be inadmissible. Try to avoid looking at places you do not want police to investigate just in case they are able to legally search your property.
Whether legally performed or not, do not resist any search of your car, person, home or other property. Attempting to stop a search can result in your being arrested and possibly charged with obstruction of justice. If a search is illegal, your attorney will likely be able to have any resulting evidence deemed inadmissible and may even be able to get police to discontinue the investigation against you.
Can Police Turn Off Their Body Cams?
Yes. In fact, they’re sometimes required to do so under department policies, for example, when confidentiality is mandatory during an investigation. However, there are also situations where they are required to use them —typically during any enforcement-related activity. Ordinarily, officers are not supposed to film interviews with witnesses or victims but the policy makes an exception for domestic violence victims as they frequently change their stories after their initial interview.
In situations where police have the discretion to disable their body cameras when they should otherwise be filming, they must fully document the incident and the reason they disabled the device or face potential disciplinary measures. Unfortunately, while department policy is very clear on these issues, studies show that officers fail to turn on their body cameras as much as 40 percent of the time.
Are Police Allowed to Cover Their Badge Numbers?
While it seems like this activity should be illegal since it is done to purposefully reduce transparency between the police and the public, the reality is that while it is against policy, it is not against the law. While police can be disciplined for hiding their badge numbers, facing penalties up to termination from the department, they cannot face criminal charges for doing so.
Be Prepared for What’s to Come
While most people know that people who are arrested may then face a bail hearing and a trial, but there are many steps in between these parts of the legal system that few people working outside the criminal justice system are aware of. In fact, only a handful of cases even end in trials due to the prevalence of plea bargains. Because plea bargains are so common and the quality of a plea bargain is directly tied to the negotiating skill of your lawyer, it is important you only work with a top criminal attorney when you have been accused of a crime.
Remember that you have rights when speaking with the police, but you can also easily accidentally waive them by answering questions without your criminal lawyer or by inviting the police into your home without a warrant. Do whatever you can to protect your rights during an police encounter and contact an attorney as soon as possible. At your first available opportunity, call (760) 643-4050 to speak with Peter M. Liss.