These days we can’t turn on the news for more
than 5 minutes without hearing another story about a conflict between police and citizens. Whether it’s Michael Brown, Eric Garner, Dontre Hamilton, or your neighbor down the street, tensions
between the general public and the people who protect and serve the communities we live in are about as high as they have ever been. And while it’s true that illegal searches and confessions
often times get thrown out in court – sometimes by the prosecutors themselves – that’s of little comfort to a person when a cop in full uniform is pressing you for information in a situation where
emotions are running high even without their presence.
Because of that, one of the most frequent
questions I get from clients is “How do I deal with the police without causing problems for myself?” The answers I give to their individual situations can all be boiled down to one simple principle:
know your rights and know how to use them. The most valuable tool in your arsenal when dealing with police contact isn’t a lawyer’s number on speed dial; it’s an understanding of what
protections you do and don’t have under the laws of both the State of Wisconsin and the U.S. Constitution. So the following are five general tips I tend to give people who ask me about this; keep in
mind that, like all general advice, some or all of it may not be applicable to your specific situation:
- Stay calm and
polite: Officers are human beings, and just because they have a badge and a gun does not
mean the interaction with you is any less stressful for them. I always tell clients that the best way to escape a police confrontation with minimal issues is to keep their wits about them no matter
what happens. Yelling at police officers won’t get them to back down; in fact, it might escalate the matter to the point where they feel they need to take you into custody and sort everything out
- Don’t lie or
stonewall: Too often I get clients who would have walked away without a single issue if
they hadn’t panicked and given a fake name or taken the “right to remain silent” to an extreme and refused to say a word; instead, even if the prosecutors couldn’t prove the thing that made the
officers respond in the first place they end up being able to prove an obstruction case against my clients. I generally advise people to subscribe to the “no obvious harm” rule: if the information
that the police are asking for is something you know for a fact couldn’t harm you, give the police that information. This usually encompasses what most people refer to as “biographical information”:
name, date of birth, address and phone number, names of relatives, etc.
- You don’t HAVE to
tell anyone anything, and you shouldn’t: While this doesn’t apply to things like giving
the police your license and registration at a traffic stop, you have an absolute right under the Fifth Amendment of the Constitution to not answer questions that officers ask you. There’s some
dispute between prosecutors and defense attorneys as to what you have to do to execute that right, so to be safe I generally advise people to politely but firmly inform the person questioning you
that you are asserting your right to remain silent. For the most part the police officers I’ve dealt with in my job respect that, but some will still try to bend the rule by offering to “put in a
good word” with the prosecutor, or threatening you with having to remain in custody while they sort the case out. The important thing to remember is that you have to fight your instinctive
belief that if you tell your side to the police it will all go away; there is nothing good that can come of giving the police more information about the allegations. The majority of cases that get
dismissed don’t end up that way because everyone agrees that the defendant was wrongly accused, but rather because the State doesn’t believe it has enough evidence to convince a jury of someone’s
guilt. Why give them ammunition to use against you?
- NEVER consent to a
search, and make sure officers know you don’t: Again, our instincts (and some police
officers) may tell us that only a guilty person won’t let a cop search their bag/car/house/etc., but the law doesn’t work that way. Be sure to inform the police politely but firmly that you do not
consent to any search of your person, property, or residence, and stand by that no matter what the officers say. Is it possible that they will ignore you and search your things anyway? Yes, it is.
However, there is no greater weapon later for a defense attorney than having a clear and direct assertion of your lack of consent, and in many cases the prosecutor will voluntarily suppress evidence
from a case because it is clear that the police did not have the authority to search your things and find what they found. Absent a search incident to arrest, the police cannot search your things
unless they have probable cause to believe you have something illegal there; make them prove to a court that probable cause exists rather than being able to say you gave them the OK to
- Ask for a lawyer as
soon as they get the handcuffs ready, but don’t try to flee: If the police want to take
you into custody because they believe you committed a crime all the legal arguments in the world won’t stop them from doing so. However, that does not mean you have to resign yourself to giving them
everything they want. Let the officers know the first chance you get that you are executing your right to counsel, and stand by that no matter what they say. They may still need to ask you the basic
background questions and formally record you saying you want a lawyer, but they will generally stop trying to collect information from you and respect your decision. Keep in mind that the risk in
doing this is that they try to hold you for a while to see if you change your mind; don’t do that no matter what. Within 72 hours you should either be charged with a crime – in which case bail will
be set by a court commissioner or a judge – or you will be released until they decide what to do with you. And while they can get you a lawyer and then try to question you with him or her present, I
know of no lawyer who would let you answer any questions unless they had an offer of immunity in hand from the prosecutors.
Hopefully these tips help you avoid a situation
where your life or livelihood is at stake. Just remember: there are a number of opportunities for a good lawyer to challenge evidence or police actions in court, but they won’t work unless you
preserve those rights when the confrontations happen.