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 "Put your hands behind you.” The
simplest "to do” 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. Don’t try to convince the officer of your
innocence. It’s useless. He or she only needs "probable cause” to believe you
have committed a crime in order to arrest you. He does not decide your guilt
and he actually doesn’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
he’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. Don’t run. It’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:
"How could the guy identify me? The robbers was wearing masks.” To which the
police smiled and responded, "Oh? Were they?” 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. Don’t give permission to search anywhere. If
they ask, it probably means they don’t believe they have the right to search
and need your consent. If you are ordered to hand over your keys, state loudly
"You do NOT have my permission to search.” If bystanders hear you, whatever
they 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,
don’t look at the places you wish they wouldn’t search. Don’t react to the
search at all, and especially not to questions like "Who does this belong to?”
6. Don’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, however.
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, "it will go easier”. Well, that’s sort of true. It will be
much easier for the police to prove their case. I can’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 "step outside”. 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 "step outside”, you will have solved that problem for them.
The correct responses are: "I am comfortable talking right here.”, "No, you may
not come in.”, or "Do you have a warrant to enter or to arrest me in my home?”
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.
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 don’t
intend to question you. They just want your name and address. Do you answer?
Well, you shouldn’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 don’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 don’t have that evidence, you could
easily provide it by talking.