What To Do When The Police Come Calling

I'm a battle-hardened criminal defense lawyer, so it always surprises me how weak in the knees I get when a policeman pulls me over. The urge to confess runs rampant, even if I haven't done anything. I assume the authorities must have a reason for wanting to talk to me. What have I done?

Police prey upon our tendency to trust them. Yet confusing the sort of soul-cleansing confession one might give to a priest with the Earth-bound variety police officers ask for is playing with Hell fire. Many a man and woman sits now in a prison cell, convicted by their own words.

I pass along some general observations about cooperating with the police in the hope that it may spare you the sorrow that comes of an improvident confession to a lawman. Mind you, nothing I am writing here is meant to encourage folks to commit a crime. I am simply reminding you that however much confession may benefit the soul in some spiritual sense, the corporeal consequences of a confession could well land you in prison. And prison is not good for the soul.

So here are some common myths and misconceptions about what you must do when the police come calling.

1. The police can order me down to the station to give a statement, correct?

Wrong. The police cannot order you to come down and see them. The Fourth Amendment gives them the power to arrest if they develop probable cause to believe you have committed a crime, and they might have the authority to engage you in a brief investigatory detention. But no case stands for the proposition that you are required to come to the station for a chat. Period.

But fear undermines many folk's sense of self-interest. So does a misplaced sense of hope.

An officer may call and say he needs you to come to the station to tell your side of the story. (He may not tell you just what story that is. My favorite investigative technique? Officers show up at your door and ask: "Why do you think we want to talk to you?") The officer may say that if you don't come to the station he will seek an arrest warrant for you.

News flash: The officer is almost certainly going to seek the warrant anyhow once things have gotten to that point. What he is looking for here is a confession, to bolster the warrant and make a conviction all but a foregone conclusion.

The law does not require police officers to get your side of the story before arresting you. In rare cases only does discussing your case with the police benefit you. The only way to make an intelligent assessment of whether you should cooperate is by consulting a lawyer before you talk to the police. There are no exceptions to this rule. Don't accept the invitation for coffee and donuts at the station.

2. When the police show up at my house, I have to talk to them right?

Wrong again. The normal conventions of polite society do not apply here. The police have not come to your home to trade notes on how your respective fantasy sports teams are doing. They are investigating a crime, and you may well be a suspect. It takes perishingly little to convict of certain crimes. Minor details you give them may be used as a means of corroborating a far-fetched story told about you by others.

This is common in child sex-abuse cases. Suppose your niece or nephew now claims you abused them a decade ago. You are rattled. Shocked. The police want to ask you about the relationship. Where you saw the child. What sorts of things you did together. Why you think the child is saying these things. All of these investigative leads can be turned against you to corroborate the fact that you did, indeed, have contact with the child at certain family events. Your assessment of the child's motives will be transformed into claims that you were deceptive.

Evidence that might truly assist you, e.g., the fact that the child has made similar false or exaggerated claims, background on family conflicts that provide the child with powerful motives to lie to assure that mommy and daddy remain together, united in crisis, and other such information can be provided to the police by your lawyer.

3. If the police don't read me my rights, they can't use anything I say, right?

Wrong, unless you are in custody. The so-called Miranda warnings have become part of American folklore. Unfortunately, many people get it wrong, thanks in no small measure to television. Police are only required to advise you of your right to remain silent if you are in custody. If you appear at the station voluntarily and they tell you that you are free to leave, you almost certainly are not in custody. In these cases, courts will regard your statement as voluntary, and, Mirandized or not, you will eat your own words at trial.

If you are unsure whether you are in custody or not, and believe me, figuring that out is no easy task, simply refuse to speak to the police. Once again, don't resort to normal, polite conversational gambits. "Maybe I should talk to a lawyer" is not clear enough to satisfy a court that you were serious about wanting a lawyer present. State the following: "I DO NOT WANT TO SPEAK TO YOU WITHOUT A LAWYER PRESENT." Print it out on a three-by-five card. If you really want to short the officer's circuits, ask him to sign the card, signifying that he gets it. (He won't sign.)

This may sound cynical, but it is a conclusion I've reached after many years of head-banging: the courts are increasingly reluctant to meaningfully enforce the rights of the accused. Ask any criminal lawyer about the serious crime exception to the Bill of Rights. Don't become a victim. Call a lawyer.

Police officers are trained in the art of deception. They know how to prey on fear and uncertainty. Whether you have committed a crime or not, odds are you will be putty in their hands. There are ways to get the information important to your defense into the hands of the police, but you are not equipped to do it without a lawyer.

I have said this to folks hundreds of times. Sadly, each week I get another call from someone who has given away some significant portion of their future by talking about things they would have been better served keeping to themselves.

Also listed under: Sex Offenders and Justice

Comments: (8)

  • Very well said! Bravo! Maybe you should also ment...
    Very well said! Bravo!
    Maybe you should also mention to the people that a Jury Trial is a better way to go than taking a Plea Bargain.
    Too many times I've seen people get screwed for taking a Plea Bargain.
    Posted on April 20, 2010 at 7:55 am by Avendora
  • A Great point. That lends itself to a separate po...
    Great point. That lends itself to a separate post, it seems to me. Also very case specific.
    Posted on April 20, 2010 at 8:07 am by Norm Pattis
  • Nice site, very informative. I like to read this.,...
    Nice site, very informative. I like to read this.,it is very helpful in my part for my criminal law studies.
    Posted on April 20, 2010 at 1:25 pm by SEODinah
  • I read your article on the Sex Offender Research s...
    I read your article on the Sex Offender Research site and posted a Good Work! comment there.
    It also got me to thinking and I have riffed some thoughts in a Post on my own site
    Keep up the good work and please be assured of its value.
    Posted on April 22, 2010 at 3:50 am by Pertinax
  • How can I file a complaint or seek a restraining o...
    How can I file a complaint or seek a restraining order against the sheriff's office for harassment? Though I was never convicted, I am forced to re-register as a sex offender 4 times per year. I am not on probation or under any sanction, yet the sheriff's office shows up at my door to verify my address every month at a very late hour. I have explained to them that I have two small children and have asked them repeatedly to come at an earlier hour if they must come at all.
    Unfortunately, the laws of the state of Florida do not allow me any relief. The laws keep becoming more and more stringent and because of this, I am nearing the end of my rope.
    Posted on April 25, 2010 at 7:00 am by ExPostFacto
  • ExPostFacto: You raise a difficult question and I...
    You raise a difficult question and I really cannot advise you on the law via a blog page.
    In general, the law permits police broad discretion to interview folks. All they need is a reasonable suspicion, namely, something that they can put into words, to briefly detain a person for questionning. Of course, the police abuse this power all the time.
    Perhaps the best thing to do is to make sure you keep notes about when and where you are stopped and by whom. Always ask the police why they are stopping you. Carry a taperecorder and demand that it be switched to record while they harass you. When you have accumulated a significant amount of harassment, write a letter to the police department demanding that the harassment stop. When that fails, find a lawyer who is willing to bring an action under 42 U.S.C. Section 1983 claiming that the town has a pattern and practice of harassing you and violating your rights to unreasonable searches and seizures under the Fourth Amendment. Such suits are difficult, and judges go out of their way to give the benefit to the cops, but it may be your only choice.
    Posted on April 25, 2010 at 7:09 am by Norm Pattis
  • Thanks for the quick response Norm. I just discove...
    Thanks for the quick response Norm. I just discovered your blog via eadvocate and intend to check out your other blogs too.
    Until recently, I had given up hope of getting off the registry, but last night's harassment pissed me off to say the least.
    In my particular case, there's no question in my mind that these laws are in fact punative and therefore ex post facto, which is why my handle is what it is.
    I'd also like to thank you for your posting regarding possible changes in Georgia. Looks like a move could be in my near future.
    Posted on April 25, 2010 at 7:30 am by ExPostFacto
  • EPF Doing what I can, which, given my time constr...
    Doing what I can, which, given my time constraints isn't much. But doing nothing is not acceptable. The law is a mess and people are suffering needlessly.
    Posted on April 25, 2010 at 7:32 am by Norm Pattis

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