A pragmatic approach to criminal law.
I just came across this page and love what I’ve read so far. Most of the criminal law stuff on the ‘net is fluff and marketing. Are you really getting “case updates” off of blogs instead of official pages? I didn’t think so. This guy is a straight shooter.
http://criminaldefenseblog.blogspot.com/
I don’t know how to set up one of those bookmark things. I’m posting this so that I can always find the link.
I’ve spent the last couple of days thinking long-and-hard about the way “regular” people deal with the police. I have developed a genuine interest in figuring out why people have no problem questioning any intrusion to their lives… except when it comes to personal dealings with the police. For some reason you will go to great lengths to keep Wal-Mart out of the other side of your town but you have no problem letting the police in your car? I don’t get it. I think I’ve made it plenty clear that how you interact with the police has nothing to do with being guilty or innocent.
Perplexed as I may be, I’ve tried to figure it out. My hunch is that it has to do with the early perception children form of the police. Children are taught, rightly so, that the police help us when we need it. Approached by a stranger? Find the police. Bad car accident on the road? The police show up to help. With D.A.R.E. programs and school liaison officers becoming commonplace, it’s only natural to develop an affinity towards the helpful police. Maybe, then, people don’t want to disappoint people they see as potentially helpful to someone? I’m not sure.
Before I get any more nasty email, I’m not knocking the police. They can’t believe the things people willingly do, either. Don’t believe me? Ask a cop. The police know that most people will let them do whatever they’d like, and those police will use it to their advantage. They are the educated ones.
On that note, today I offer a little counter-education. There are three things that people hardly ever say to the police. Three powerful things. Three things rooted in the Bill of Rights. Three things that may not be specifically mentioned, but that James Madison would want you to know.
1. “Am I free to leave?”
Without getting into a very long legal explanation, this simple question may help trigger a lot of legal issues. If you are not free to leave, your interaction with the police is not “consensual”. It may not be a full-on arrest, but it is not consensual. If you are ever unsure, ask. Don’t be surprised if you get an indirect or incomplete answer back, though. Police don’t get asked this very often, and it can actually be a difficult question to answer from their end. Also, they may be worried that you will leave. Insist on clarification, though. If you are not free to leave, you need to know.
Which brings up another question that torments me. If you are free to leave, why would you stay? I wouldn’t. Most people do.
2. “I would like to speak with an attorney before I talk to you.” I know what you are thinking. You’re thinking, “I’m never going to get interrogated for murder, so why do I care?” Traffic court is filled with people who thought like this. In court, though, they want their day. People want trials. People don’t believe they were speeding. People know that radar is inaccurate. People aren’t buying that they were clocked at 20 MPH over the limit.
People don’t know, though, that traffic court is filled with magic. I’m not talking slight-of-hand or even Jedi mind-trick magic. I’m talking Carnac magic. Anybody sitting in traffic court for a couple of speeding trials has this magic. I have it. You can get it. It’s the magic that helps us know what the police officer says before he even says it:
Seasoned Officer: “…after the radar readout was 76 in a posted 55 MPH zone, I stopped the vehicle.”
Incredibly Skilled Prosecutor: “What happened next?
Seasoned Officer: “I approached the vehicle, asked the driver for license and insurance, and asked her if she knew why I pulled her over.”
Incredibly Skilled Prosecutor: “Then what happened?”
Seasoned Officer: “She admit that she was speeding, but said that she was only going 6 miles-per-hour over the speed limit. She said she was going with the flow of traffic, and could not have been going that fast…”
If the judge believes the driver of the vehicle actually said that, everything else at trial is a lot less important. Confessions are the most damning evidence possible. If the driver had, instead, told the officer that she didn’t want to talk about the stop without consulting an attorney first, she would have a better chance at trial. If you’re going to go to trial, why not take your best chance?
I know you think it’s nuts to say this at a traffic stop. I’m o.k. with that. They are your rights… do with them what you want.
3. No. No. Say it with me, “No!” This one can be a little bit tricky. The general rule is that you’re allowed to say “no.” You’d like to take a look around my car? No. Can you ask me a couple questions? No. You’d like to walk through my back yard? No. Can I come down to the police station to talk to you? No. Do I know where Jimmy Hoffa is buried? No, no, no!
“No” is tricky because there are some exceptions. Never use it if using it will be lying. Am I Matthew Haiduk? Saying “no” to that could get me in trouble. “No” can also be over-ridden. You might say they can’t come in, but their warrant says otherwise. What happens when a team of armed police are dressed in tactical gear, knocking on the door, telling you that they have a warrant and you tell them they can’t come in? Well, they’re about to knock down your door and hog-tie you anyway. What you say doesn’t really matter!
There is a very simple way to figure out of you can say “no.” If you are not sure whether or not you can say it, just scrap “no” off the list of things you’ll say to the police. Instead ask if you are free to leave. Then tell the police you would like to talk to your lawyer. It really is that easy.
People think the law is a science. Like, there are black-and-white rules that control everything. And that every situation is repeatable. For instance, I often get asked how to avoid getting arrested for DUI. You would think the answer is simple, right? You can drink. Or, you can drive. You can’t drink and drive, though.
Unfortunately, it’s not that simple. Plenty of people who are stone-sober have been arrested. A million innocent things might cause the police to believe you are driving under the influence. Think I’m making this up? Put 5 minutes of research into the similarity between diabetic shock and DUI. Or just watch this:
So, I have no specifics to offer. I do have a few general rules to offer, though. They may be a bit unorthodox, but stick with me. It will all make sense in the end.
I believe in these rules 100%.
Simple Rule #1: Don’t be Canadian. This might not sound hard, but nearly 34 million people on this continent have got this one wrong. Why don’t you want to be Canadian? It’s simple, really. They don’t have a bill of rights like ours. Or, they couldn’t find their own bill of rights with a map and compass. The bill of rights is what keeps the police out of your life. In the good, old U.S. Of A we have a couple hundred years of enforcing this idea. In Canada, they still don’t know. Saying “Canadian Bill of Rights” is a lot like saying “Canadian Military” in casual conversation. It sounds like it means something, but nobody really knows what it is.
Simple Rule #2: It’s not your business. If you happen to be walking down the road one day and see the police “dealing” with somebody, it is not wise to stick your nose where it doesn’t belong. You didn’t see what happened before, you don’t know what is going on, and you don’t know where it is going. They will arrest you to get you out of the way.
That’s not to say that you should tolerate police abuse. Not at all. Sticking your nose in the middle of it is only going to get you arrested, though. You may be more effective calling the State Police (if your “interaction” is with the locals). There is also nothing wrong with video recording anything that happens in public (although you shouldn’t simultaneously record audio in Illinois). Either way, if your focus is to avoid arrest it’s best to avoid things the police are doing that aren’t your business… even if that may not be fun.
I believe in these rules 100%. Like I said before, though, the law is not science. These two rules are good rules to live by. They may help many of you avoid arrest. There is always an exception, though…
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P.S. Who is this guy to use “stranger” to describe another person?
Troy Davis is a man whose plight I have been fighting for nearly twenty years. Wait. That’s not right.
Troy Davis is a man whose sentence I have been rallying against for the past couple of years. Hang on. That’s not right, either.
Troy Davis is a man I recently heard about. I have put a lot of personal time and effort into sparing this man’s life. As I write this, the Supreme Court denied his stay and it looks like he is about to be executed. Whoa… That isn’t exactly correct.
Troy Davis is a guy I just heard about. His story scares me. I signed a facebook petition and have been watching CNN as the execution approaches…. This sounds more correct. But, not for me.
Despite people bemoaning the “broken system” the reality is that it’s not the system that has hacked everybody off, it’s the punishment.
In truth I avoid nearly all legal news. I live this stuff. Day in, and day out. I don’t need the news. That’s not to say that I am too burned out or worn to think about the law after hours. Quite the contrary- anybody who knows me has probably heard more than their share of my legal opinions when I’m “off the clock.” I don’t follow the legal news because it tends to highlight the stories of national and international attention. Stories about people I don’t represent. I have only so much mental energy to burn, and I focus on people I can directly impact… people who have come to me and asked for help. They get my undivided attention.
So, I heard about Troy Davis yesterday. I know very little about the case. I know that everybody is outraged. I know that Georgia has a long history of “issues” with the death penalty. Don’t think so? Here, here, and here just to get you started.
It sounds like a fairly bad set of circumstances coupled with a very flawed system. If it weren’t for a man dying, though, there would be little (if any) media outcry. Despite people bemoaning the “broken system” the reality is that it’s not the system that has hacked everybody off, it’s the punishment. The general public only cares about the system being flawed because a man is dying.
Think I’m wrong on that? Where is the public outcry when somebody gets screwed on a retail theft? Where are the chanting, protesting people bemoaning an unjust verdict on Unlawful Use of a Weapon? Where are the Facebook petitions when an innocent man is found guilty of DUI? Nowhere. I would know, I’ve walked out of the courthouse after seeing this stuff. Lock a man up for a “mere” 30 years, and suddenly it’s not news.
I’m not saying that people have to concern themselves with every minor case. What I am saying is that if all of the people so wrapped up in Troy Davis’ case had worked this hard over the last 19 years, he’d likely be alive now. What I am saying is that if people really feel that strongly, I wish they would harness that energy before the government strapped this prisoner to the gurney.
You angry about Troy Davis? Volunteer some time. It’s not hard to find ways that may actually make a better impact than signing an electronic petition or holding a cardboard sign. The internet is full of charitable places looking for help (on both sides of criminal law). Calling one is not as “cool” as twittering how bad you feel for Troy, but may actually make a difference.
I don’t know a lot about Troy Davis or his case. I do know that a lot of people waited until the last minute to make a lot of noise. I also know that right now there is a guy caged like an animal in your local county jail. He dosen’t deserve to be there. What are you doing about it?
Most misdemeanor drug cases start with a traffic stop. Many felony cases do as well. It make sense that the lawman would pull over a car for a traffic offense. What doesn’t make sense (to me, anyway) is that the majority of traffic-turned-drug stops are the result of people in the car giving consent to search. I would be a very wealthy man if I had $10 for every conversation at my office that went roughly like this:
Me: Ok. Then what happened?
Accused: The officer asked if he could search.
Me: What did you tell him?
Accused: I told them he could.
Me: Why did you tell him he could search if you thought there might be contraband in the car?
Accused: I didn’t want to look guilty.
You think politely telling the police they cannot search makes you look guilty? Know what really makes you look guilty? Standing on the side of the road in handcuffs while the police pull out 10 pounds of weed from your car. It’s not possible to look more guilty.
The idea that people don’t want to “look” guilty is actually a bit disturbing. Long before any of us were on this planet, the people responsible for founding our nation weighed in on searches by the government. You know what they said about looking guilty? Here’s what they said:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That, of course, is the text of the Fourth Amendment. The drafters of the Bill of Rights didn’t think you would look guilty for refusing a search. So, to whom do you think you look guilty? The Police? Guess what? He already thinks you’re guilty, that’s why he wants to search.
In many cases you have no ability to keep the government out of your life. In everything from how long your lawn may be to whether you may put a boat in the water without registration, you don’t really have a “right”. Unless there is a warrant, exigent circumstances, or some other exception, the Fourth Amendment says you do have a “right” when it comes to searches. Americans pitched British Tea in the harbor and then fought and died for the freedom to painstakingly draft and ratify the text of the Fourth Amendment. My experience is that people are a lot more willing to gloss that over in the face of a request from the local patrol officer.
The next part of the conversation re-enacted above has me talking to the person about their specific case, and what they should have or could have done. I can’t give out general advice over the internet to cover each specific police interaction, so don’t even think about taking my musings here as advice for what you should do in your specific situation. Doing so would be silly in light of the fact that I do fee consultations, anyway. Just call me. The best general advice I could give out is that if you ever get asked by the police if they can perform a search, it would be wise to call a lawyer for advice. Right then and there.
I will, however, say this. I have nothing illegal in my car. I have nothing illegal in my house. Plain and simple, I have nothing illegal. If the police ask me to search, though, my answer is “No”. I don’t care what they think of that.
