COMMON MYTHS

Myth #1: Police Cannot Lie During Questioning.

People often wonder and ask me if police are allowed to lie to a person during questioning.  The answer is the police are absolutely allowed to lie to a person and routinely do so. As stated previously, the Reid Technique is the common interrogation technique detectives are taught to utilize when conducting an interrogation on a suspect. The “Reid Technique,” was initially developed by John E. Reid in the mid-1900s, and was revised by. Reid and Northwestern Law professor Fred Inbau’s 1962 book Criminal Interrogations and Confessions, which has been republished several times over the years. The “Reid Technique” is widely known as the bible of modern interrogations. The Reid Technique has a basic premise of hurling intimidating threats and promises that are not legal or binding, and which the interrogator has no intention of honoring. The Reid Technique” utilizes a method involving implementing a procedure which involves three stages meant to break down a suspect’s defenses and rebuild him back as a confessor. First, the suspect is brought into custody and isolated from his familiar surroundings. This was the birth of the modern interrogation room, and how it is usually very small, not lit very well, and with no windows and with little to no furniture or other items in the rooms, such as pictures on the wall, etc. A prime example of when the Reid technique was utilized was presented in the famous documentary on Netflix, Making a Murderer. , a documentary on Netflix. The case included Brendan Dassey, a minor who confessed to a murder that he and his uncle may or may not have committed. The detectives obtained the confession from the minor Brendan Dassey that was the main piece of evidence used at trial through the implementation of the Reid technique. In the documentary, the youth gave a confession that was contradictory in nature, with certain facts stated that could not have been the actual case. After the interrogation is conducted, the young Dassey asks if he can have soda water to drink and when he will be allowed to go back to his gym class. Little did he know that what he just did was confess to a crime that would lead to his incarceration for the better part of his life. At the very least, it’s a very unreliable way to get information from someone because you are outright telling lies to a person about any number of things. Dean Strang, the main attorney involved in the case documented in Making a Murderer I once heard him speak at a forum in Dallas, Texas, where he outlined the reasons for why he very much disagrees with the Reid technique, if for no other reason than because it commonly produces a confession that is inconsistent, unreliable, and not able to be fully trusted as the truth. When commenting on the Reid Technique, after remarking and detailing all of the details that were fraught with inconsistencies with the statement Brendan Dassey made with his statement, I remember he said it was first used in the early 1900s, and back then there were United States Supreme Court opinions where way back then it noted how the Reid Technique was a preferable method to the alternative technique of simply and quite literally physically beating a confession from suspects. At one point in time, I presume after hearing Mr. Strang speak, around a century ago it was common for police officers to use physical force to beat someone until they gave the right confession sought. Confessions given under those circumstances were, of course and obviously, very unreliable. The risk of a false confession with the Reid technique, however, is extremely high, even without the use of physical force. In this modern-day of time, certainly an alternate method could be employed or explored as an alternative to literally lying and playing mind games with people solely done to get whatever admission they are trying to obtain.

Some of the myths that people believe about the rules police have to follow are completely untrue. For example, the idea that if an undercover officer is asked if they’re a police officer, they must tell you the truth. That’s not true at all. They will lie and it is perfectly permissible. They can also lie about having physical evidence against someone. If they’re trying to get a confession or a statement from you, they can claim to know that you were at the scene of the crime. They can tell you that they have DNA and fingerprints. They can tell you that your friend is in the next room and he’s already confessed. All of those lies are perfectly permissible under law.

People often get scared, especially people who aren’t particularly educated and will give a false confession in hopes that they won’t be punished as harshly. The police generally lead them to that conclusion, even though a police officer really has no control over getting someone a good plea deal.

Myth #2: They Have To Tell Me They Are The Police.

This is not true in the least. In fact, it is perfectly legal in most jurisdictions. It is a common myth and misconception people believe that if an undercover officer is asked if they are a police officer, they must respond with the truth. This is a common and very prevalent myth. Police officers do NOT have to reveal their identity as cops, even if you ask them directly. Law enforcement officers are allowed to lie in order to make an arrest. They are taught how to lie. The courts have sanctioned police lying to suspects. That’s what undercover operations are all about. Undercover means acting in unofficial capacity or on assignment in a non-police capacity to most officers. For many of my clients, undercover means an officer is not wearing an official police uniform or without any identifiable police markings openly visible.  A police officer can and will tell you all kinds of things to get you to do or say something stupid.

It is highly effective in their investigation and interrogations to lie.

One exception, in theory, would be entrapment. In essence, entrapment is a situation where the police applied some form of persuasion to induce a person to commit a crime, where the individual likely had no predisposition for committing the offense otherwise. However, police officers can and do often pose undercover, and when doing this often provide a person with the “opportunity” to buy drugs, but do not utilize or apply force or intimidation to convince one to do so. If the situation happens to be one where an individual is approached by an undercover police officer (or another agent for law enforcement) and they offer to sell an individual illegal narcotics, but the offer was refused, but they still repeatedly came back and urged one to make the purchase. Usually, it would involve some form of pressure or threats, and in this event, it might be construed as entrapment which would invalidate the arrest and result in possibly the charges being dismissed. However, regardless – the common myth that if an undercover police officer is asked if he works for law enforcement he must be truthful is absolutely FALSE.

Myth #3: My Case Will Be Dismissed Or Thrown Out Because They Did Not Read Me My Miranda Rights.

While the media on TV usually depicts police officers reading a suspect their Miranda rights right after an arrest, this is not necessarily always the case and there is no requirement when it should be read. Regardless, even if it is not read, it will not lead to a dismissal. If you are ever placed under arrest for any criminal charge, the officer should read you your Miranda rights at some point. However, it is a common misconception that they are required to read a person their Miranda rights, which is not true. Usually, they do, in most cases before a person is booked into jail read them the basic Miranda rights, but there is no set time period or a specific juncture for when they are supposed to do so. It’s a mistaken belief that right after arrest an officer must immediately read a person their Miranda rights, and in the event, they do not – many people erroneously believe this somehow could lead to a positive result, like a dismissal or the charges being dropped. Miranda, in effect, really only comes into play as a relevant portion of a criminal charge if a suspect is NOT informed of these rights before law enforcement officials intend to interrogate and question them. If a person is under lawful arrest, but Miranda rights are not read, any statement made would not be able to be used later in a proceeding in court.  In fact, if no interrogation is conducted, then criminal prosecution can proceed even if a suspect has not ever been read their Miranda rights.

In order for Miranda to apply, you must be found to be in custody, meaning that the evidence was gathered at a time when you were either under arrest or your freedom of movement was restrained such that a reasonable person would not have felt free to leave. In addition, the evidence must either have been a product of interrogation or conduct that was similar in quality to interrogation and it must have been conducted by a law enforcement official. If you are formally arrested, you are in custody. If you are not formally arrested, the custody answer is not so clear. If your freedom of movement is restricted by law enforcement, the question is whether a “reasonable person” would believe they are under arrest. If an officer stops you momentarily while you are driving or walking, you are likely not in custody for the purposes of Miranda. Similarly, you are not considered to be in custody if you voluntarily agree to engage, talk, and/or interact with police officers by going to a police station and to answer questions, if at that time you were aware that you were free if you so choose to just get up, leave, and walk away. If you are in custody and police officers interrogate you without reading you your Miranda rights and if you answer their questions and your attorney can prove this assertion to be true, then any incriminating statements made would likely be ruled inadmissible for use in any hearings or at a trial. Simply put, the myth that because you believe after an arrest it is an automatic “get out of jail free” card” is an erroneous belief.

Myth #4: There Is No Forensic DNA Or Fingerprint Evidence, So I Cannot Be Convicted Of A Crime.

While forensic evidence such as DNA or fingerprint evidence can significantly be an advantage for the prosecution in any a criminal case, it is by no means exclusively necessary in order to obtain a conviction. In fact, the majority of criminal convictions are typically based on circumstantial evidence and witness testimony at trial, often either through the testimony of a police officer or an eye witness to the incident. People love to watch CSI and sometimes believe everything on the show regarding forensic evidence and how strong the merits of it are in relation to a criminal case, does not necessarily apply in reality in actual criminal cases and trials. The assumption that police officers, investigators, and prosecutors only solve crimes by using some type of forensic evidence is a myth many people believe. While forensic evidence such as fingerprints analysis, voice recognition, or DNA specimens can help increase the odds of a conviction, it is not something that is absolutely required in order for someone to be convicted of a crime. Many people do believe the myth that without such forensic evidence being present, a defendant cannot be convicted. However, this belief is the entire wrong and far from true. But this myth is entirely wrong. A great majority of criminal cases do not involve any forensic or scientific evidence of any kind and rely solely on the testimony of witnesses, police officers, experts, and criminal investigators. In fact, the testimony of just a single witness (sometimes referred to as the one witness rule) of someone such as a single police officer who investigated the case, or an alleged victim or complaining witness to the crime, can be enough is usually enough for the prosecution to seek to obtain a conviction (assuming the trier of fact believes their testimony as proof beyond a reasonable doubt). The popular depiction of scientific experts giving very intricate and complex testimony regarding the validity of certain pieces of evidence or the notion that technicians will testify who performed a very complicated analysis of a crime scene is indeed portions introduced as evidence at criminal trials. However, in many instances, this type of testimony and the complexity associated with it is usually the exception and not the norm.

Myth #5: I Was Not In The Car Or I Left The Scene So I Cannot Be Charged With Possession.

People often believe that if certain illegal items, such as illicit narcotics, are not directly found on a person, they cannot be charged with the criminal offense of possess of a controlled substance, nor convicted of the crime at trial. Very often I hear people say how they should get an instant dismissal, and fervently point out how because they did not find any of the drugs in question on them, the charges are bogus and the police officer made a huge mistake. This is not true, and the proposition of the legal nature of what it proposes is far from what is true in reality. Possession involves the exercise of control, management, care, custody or control over an, controlled. Possession of illegal substances can be classified as either “active” or “constructive.” Possession of the illegal substance would be categorized as “active” when it is clearly found on or near a person, or when it is clear they were aware of its presence, and, either individually or in conjunction with other parties, had the ability to exercise power and intent to control its disposition or use. Active possession would be a scenario where you physically have something illegal on your person, such as in your pocket, in your jacket, in your car, or purse.

Constructive possession exists when you do not have actual possession, but still, have the intent and capability to maintain control and dominion over the contraband. Possession can be constructive when an individual has the ability to exercise some form of control over (such as in a passenger seat while someone else is driving the car). There is a very distinct difference between “actual possession” and “constructive possession.” Constructive possession refers to a scenario where you may not be in actual in physical contact with something contraband, but you may know where they are and have the ability to control and move them. Constructive possession identifies a scenario where you do not have bodily contact with the container or drug which the medication is in, however you still understand where they’ve been and you’re in charge of those. This includes getting them concealed in an automobile or your residence. Constructive possession identifies a situation in which you don’t have bodily contact with the container or drug that the drug is in, however, you still understand where they are and you are in charge of those. This includes knowingly getting them concealed in your residence or automobile. Possession can also be constructive when an individual has the ability to control the object (e.g., in the passenger seat while the individual is operating the motor vehicle). Presence, accessibility, and proximity are among several issues that may be sufficient to establish possession. Construction possession can only exist if there is some knowledge the contraband was found in a place on or around your property and one had the capability to maintain dominion and control over it. Constructive possession can be sole or joint, meaning either an individual or a group of a few individuals can be charged using constructively possessing the exact same controlled substance. By way of instance, two people residing in the same home where just 1 bag of marijuana is found can both be held accountable for constructively owning the single bag. Circumstances that can lead to a finding of constructive possession include: 1) when a police officer watched a person  drop what they later found to be illegal contraband; 2) Your mere location and proximity to the illegal contraband; 3) Whether one owned or occupied the location where drugs were found; 4) Where one clearly had control of the item in where the illegal contraband was located; 5) Where one had the opportunity, or lack thereof, to move or dispose of the drugs where they were found; 6) Where one had any personal belongings at the location where the illegal contraband was found; 7) Where one either fled or engaged in other suspicious behavior; 8) Where one was engaged in drug activity or were otherwise impaired. The overall rationale, in totality, is if the state can prove an individual had a nexus or a close tie to the illegal contraband when it was found by law enforcement, one could be charged and possibly convicted of a “possession” charge.

Myth #6: The Victim Does Not Want To Press Charges, Against Me.

The idea of any individual “pressing charges”, regardless of whether or not they do want to an individual prosecuted or note, is indeed perhaps one of the single most misconstrued notions when it comes to criminal law cases, especially in assault charges. The general concept is very simplistic in nature – any individual or person can choose to, or refuse, to have someone charged and prosecuted for a criminal offense, and if they are the alleged victim in the case they have the ultimate power and authority to ensure all charges are dropped.

While it is true that DA’s may be less likely to aggressively pursue charges in this context, but if this is the case, it is usually because they are weighting the strength and merits of the case and determining the worth of the case and evidence considering how a material witness seems unwilling to cooperate with an investigation and has expressed the desire for the charge to be dropped. However, it should be perfectly clear that any individual, even if they are the complaining witness or a victim in a case, simply does not have the power or authority on their own to make sure certain charges do not get filed or are dropped. This is actually far from true, and actually, the contrary proposition in many situations seems to exist.  Ultimately, the overall determination of whether an individual is charged and prosecuted for any given crime is always and ONLY up to the prosecutor assigned to the case. Prosecutors have a very wide amount of leeway and discretion in the specific types of charges they intend to pursue, file, and prosecute, and the ultimate decision is only up to them, and THEM ALONE. An individual, even if they are a complaining witness or a victim in a case, have literally almost no control over the decision that will be made by the assigned prosecutor of the case. Furthermore, citizens typically cannot file criminal charges on their own, nor can they stop prosecutors from filing criminal charges. After an arrest has been made, it is entirely out of the victim’s hands as to what will happen in court. This can be a frustrating proposition – after all, they are the ones who made the initial call for the arrest, right? They should have the authority, then, to dictate what happens to the person for whom they made the original complaint? Right? Wrong.

Actually, when victims constantly contact authorities to get charges dropped, it can actually lead to a worse result. Why? Often – if a victim persists in trying to get charges dropped against their loved one – prosecutors may go into a “Reactive” mode, or into a “Protective” role because they believe the person is being pressured into doing this for some reason. The reasons could vary; maybe they don’t want to see their spouse go to jail, maybe the spouse is pressuring them to make the call to the DA’s office in hopes the charges will be dropped, and they won’t have to go to court, go to trial, be placed on probation, or in some cases go to jail or prison. The logic is it could be the case where a battered spouse testifies to help get their loved one out of trouble, only to be harmed perhaps worse in the future. In essence, they are attempting to protect the battered spouse against themselves. Especially in a family violence case, the state can prosecute a defendant, and possibly obtain a conviction, with or without the assistance and/or wishes of the alleged complaining witness. Either way, often the DA’s go into a reactive, or a protective mode, to protect the battered spouse, and not only will the charges NOT be dropped, but the case may also be prosecuted more vigorously against the individual than if the victim had not tried to drop the charges in the first place.

The net of this is – simply put, regardless of the type of case, the victim DOES NOT have the power, or the authority, to make the decision to drop or to dismiss any pending charges. It is out of their hands, and usually within the sole discretion of whatever DA office is handling the matter.

Myth #7: “I Can Talk My Way Out Of This Situation.”

This is a common myth and misconception, and one that very often leads to individuals suspected of a crime who believe this notion to be true making the overall evidence for their case much worse for themselves later when it proceeds to courts. Police officers, detectives, investigators, etc. are all trained and very skilled to elicit incriminating information from suspects. You will never talk yourself out of trouble; however, very often you may put yourself in the position of talking your way into more trouble, and possibly ultimately a conviction for the charge. One of the basic tenets of the Miranda rights, as everyone has heard on TV, is how one of the warnings given is when the arresting police officer states how “anything they say can and will be used against them later in court.” They do not have this in the Miranda warnings to pay mere lip service, it is, in fact, one of the warnings enumerated in Miranda for a very good reason because they absolutely mean it when said. The more you try and talk to a police officer about the alleged incident, what occurred, what role you may have played in it, only will be used, granted often out of context and written in a different manner than intended when it was said, the more strength and leverage a prosecutor will have to be used as evidence against you later in court. Thus, it cannot be stated enough – ALWAYS, albeit politely, exercise your politely constitutional right to remain silent, and avoid making any possible incriminating statements. This is the whole tried and true surefire method and the single best way to avoid making a situation altogether worse for you. I have seen it, from experience, time and time ago. YOU HAVE THE RIGHT TO REMAIN SILENT – SO USE IT!

Myth #8: A Person Will Be Better Off If They Cooperate.

Many individuals mistakenly believe that that should fully cooperate with the police because they will be better or, or because the promised to go “easier on them” if they did. It is almost important to remember how police are allowed to lie to a person to try and obtain what they want. Often, they will try to tell someone how if they just “cooperate, everything will go easier for you.” And usually will they make clear how if they do not, and refuse to give their consent to search, something like a vehicle, they may threaten then person by saying how if they do not adhere to this request, they will call the dogs out and then officer may describe how the if they choose this as the option it will be destroyed. Law enforcement officers have not obligation whatsoever to follow through with empty promises made, in fact, rarely do. This is the case even where a person agrees and does what was asked on their end, but soon will find out this will almost never be reciprocal and they have agreed to do so by naively placing their trust in a police officer who will only make do this in order to freely obtain incriminating information. If a person doesn’t immediately offer their consent, they may form a bit further try and put you at ease by saying if they will agree to allow for the search, or to answer questions, it will be much quicker and easier overall because he is only there to get them straightened out, and once this is ascertained will usually imply everyone can go on their way. One should be almost more on guard whenever a police officer in a scenario such as this acts nicer than usual because they are doing so with the sole intent to make their job easier and to make yours worse. When a police officer is investigating a crime, they are not there to make friends or to just play to a cursory search for what happened, as if he is Columbo or Sherlock Holmes, and so on. Most people in this situation do not realize how this mind trick is done only to help make an arrest easier and with better evidence obtained as a result. It is a trick designed to take advantage of a trusting individual. If you are being questioned about a crime and you believe you are likely one of the suspects, you must realize quickly how this ploy for information is done only because that the Police Officer is seeking the easiest way to make an arrest, and unless one is steadfast and never provides the consent requested, it will not allow the officer for the quicker way in order to do his investigation, make his arrest, so he can be done with his work earlier and with doing much less work. If one finds themselves in encounter such as this, it is imperative to realize how the police officer is not your friend and has no care whatsoever about you, whether you get arrested, how this will affect your life, your family, or any possible ramification a person may face with employment and could care less if it will cause someone to lose their job and ability to provide income for a family. Lose your job, and gives in a provides their consent, searching for a short cut to arrest you. He is not your friend; he is not concerned for you, your family, nor where your next meal is coming from. One should immediately be concerned if this ultimately somehow is conveyed, and it is all the more important to remain steadfast in not giving any form of consent.

Ingram, Terry. Police State – Ten Secrets The Police Don’t Want You To Know! “How To Survive Police Encounters!”. Smashwords. Kindle Edition.

Never Consent – Never Consent To Any Search

This is true regardless of the law enforcement encounter, whether it be on foot, in your car, at home, and/or whether it is a consensual encounter, investigative detention, or an arrest. If you know and are sure you will be or are already placed under arrest, it is absolutely crucial and important to immediately exercise your right to remain silent, and convey to the arresting officer how you would like to immediately invoke your right to have an attorney present with you. Always be polite, calm, cool, and courteous when invoking both of these rights, but make it straightforward and absolutely clear.  In any police encounter, the main rules to follow, beyond all else are the following: 1) Always be polite and courteous; 2) do not make any admissions or give any statements; 3) NEVER GIVE YOUR CONSENT!  If asked for voluntary consent for literally anything – to search your person, your vehicle, your residence – even if you fully believe you have nothing to hide, still clearly and directly state that you are not giving your consent.

In general, the more you talk, the higher the probability you may say something that could lead to further investigation. I have personally handled numerous criminal cases where people I have represented have, quite literally, talked their way into a conviction. This is especially true with cases where an individual is under investigation for or is arrested for a charge of Driving While Intoxicated. It also is true when someone gives their voluntary consent to search, believing they had nothing to hide, and also under the mistaken belief that if you cooperate with law enforcement, it will be in your overall best interest. Many times I have seen countless individuals arrested and charged with a criminal offense by giving their consent when asked by a police officer, and had the not done so and politely declined consent, they likely would have been able to avoid being arrested and charged with a crime the first place! There is an old saying that comes to mind for me, “fish are caught only because they opened their mouths.” Thus, always be polite, but keep your mouth closed, say as little as possible and make it clear that you at no point will you give your voluntary consent to search whatever place or thing is being asked of you. If it is the case where the police officer believes they have probable cause to search, still make clear your position that you do not consent to the search, but it also important to keep in mind that if they proceed nonetheless, DO NOT interfere with them in the performance of their duties. If this occurs, possibly record them with your phone or try to have a witness audibly hear you tell the officer how you are making it clear and known how you did not give your consent to search. The bottom line is there is no real advantage to consenting to any form of a search of a place or thing. However, there is a myriad of ways in which it could backfire, and lead to a possible arrest for a criminal offense. Therefore, ALWAYS, ALWAYS, ALWAYS REFUSE CONSENT if asked by any law enforcement official.

The reality is that when a police officer is investigating a scene or even during a routine traffic stop, law enforcement officials rely heavily on the public’s overwhelming desire to have the confrontation end as quickly as possible and by whatever means necessary. Thus, most people will then, in the hope that the encounter will end in a quicker fashion, will agree to divulge, consent, placate, or do whatever is necessary for the hope the interaction will end quickly. Most people will do whatever is necessary if it will lead to the proposition that the police officer will leave them alone. While this may actually be the situation that occurs if you do consent, do not forfeit your rights, and possibly your liberty and freedom, for a few minutes of expediency, which can lead to other factors in the reverse, such as possibly instead confirming an officer’s initial suspicion of something, or even it may give them the probable cause needed to legally search the item or place, and possibly enough to make an arrest.

Police officers, by and large, are very good at what they do in the performance of their duties. Officers are good at what they do. Consider the following (and note that police officers usually ask this series of questions in a very casual, laidback, and conversational tone):

QUESTION 1:

Police Officer: “By the way, you don’t happen to have anything illegal in here do you? They usually will ask “You don’t have anything in here illegal, do you?” * The logic and situation applies regardless of if they are referring to your car, your residence, or on your person

Citizen: “Who me? Ummm, why no, of course not. I am sure of it.”

-If you answer and respond yes you have just confessed to a crime. You have also given them automatic probable cause to search the item/place, take their time to find whatever it is you mentioned in the affirmative you had in your possession that was illegal, and will ultimately be arrested. Avoid this answer at all cost. You would be shocked by how many people do answer yes to this question – again, it is usually when an individual believes honesty is the best policy, and if they tell the truth, that will be the best thing for them. Wrong. Wrong. Wrong.

-If you instead answer no, and for whatever reason, illegal contraband is found, you are essentially in the same exact position had you just said yes. Regardless, the police officer will almost surely follow up with the canned question that he has recited many times before. In all likelihood, when an individual answers no question #1 above, the very next follow-up question asked, guaranteed, usually will be something to the effect of:

QUESTION 2:

“Then you do won’t mind if I do a quick search of your car (or house, person, etc.), do you?”

-Most people try to be compliant with the police, and the natural response of a common, and the otherwise law-abiding person is to not be combative. Thus, most people then just simply acquiesce and respond back “No officer, of course, I do not mind if you search.” This is true often times even when someone knows there is something illegal which will be found inside a vehicle. Psychologically, I am of the belief that most people simply do not have the mindset or the assertive nature to respond in the following manner “No, officer – I do not have anything in here illegal, and I have absolutely nothing to hide. However, YES officer, I very much DO MIND if you conduct a search of my vehicle (or residence, or of your person), and I absolutely DO NOT give you my permission and/or consent to search for any reason whatsoever. Thank you.” It is important to communicate this politely and with some charm, if you can – but also to be firm and do not waver or waffle and let him search, regardless of what he says to try and nicely coerce you into submission. You can decline nicely, and politely, with just the right amount of indignation. This perhaps would be wise to practice and rehearse in advance. I sometimes ask friends and family members this series of questions, just to see how often the rote answer is given back when asked (especially if done in a benign fashion) how often people say, “Of course, I don’t mind. I don’t have anything illegal.” If you do not at least go over the overall breadth of how this interaction takes place, and how you must immediately assert yourself in saying how you do not have anything illegal on you, but you do very much mind and do not give consent to a search. If you do not at least go over the nature of the concept and what it means beforehand, you will likely not get the answer right when a police officer is standing over you, shining his light in your face, and trying every possible subtle show of authority imaginable to get you to agree to his request.

Also, a good answer to the question would be something similar in effect to the following: “Officer, I apologize for the traffic violation. I have tried to answer all of your questions and have cooperated with you in every way possible. However, I am very late and urgently need to go to (fill in the blank with a plausible reason). I am sorry I am in a bit of a rush but are we finished here? May I please leave now?”

Often, people give their voluntary consent to search because they genuinely believe they have nothing to hide. However, often people are shocked to discover they can be arrested for things they did not know was illegal, or had no knowledge they were in possession of. For example, a mother who carpools her children and other neighborhood kids to school in the morning, may not have any knowledge of one of the kids happens to leave some of their prescription ADHD, anxiety, or antidepressant medication in her car. Kids often carry these to school, have a valid prescription, but very easily could leave them behind inadvertently in a car when transported to school. If the mother merely gives her voluntary consent to a search of her vehicle, and perhaps one of the children mistakenly dropped some of the pills on the ground and she cannot produce a valid prescription for the medication for herself, she very well could be arrested for being in possession of a controlled substance.

Magic Words

To put yourself in the best possible position in order to be able to properly counter all police and law enforcement tricks and tactics, one should KNOW AND MEMORIZE THE MAGIC WORDS below. If you feel unsure of what you should do during an encounter with law enforcement or the police, simply just say the following. This concept applies regardless of the situation or scenario – whether if on the street, in your vehicle, after a traffic stop, at your home or place of residence, and even if you are at the police station after agreeing to give a statement about an alleged incident – politely and calmly recite the following “magic words” over and over again to the police officer conducting the investigation.

1) First, ask the investigating police officer:

– “OFFICER, AM I UNDER ARREST??

If the answer to this question is NO, then immediately proceed to Question #2 below.

However, if the officer answers in the affirmative and responds YES, then you are under arrest. At this point, you are under arrest and you should then immediately respond back in a direct and clear fashion that you now wish to invoke your constitutional right to remain silent and do you want to answer any further questions without the advice of legal counsel, and then also promptly request your right to have a lawyer present. Say nothing else, at this point, beyond communicating to the officer your correct legal name and perhaps just minimal basic facts usually asked during the booking process.

2) “THEN AM I FREE TO LEAVE NOW, OFFICER?”

If the officer responds in the affirmative to the question – “Am I free to leave?” – And therefore the answer is YES, you are free to leave, and so you should do just that – LEAVE!

If the officer responds to the question – “Am I free to leave?” – And the answer is NO, indicating that you are NOT free to leave, then politely inquiry by asking, “Why exactly are you detaining me, Officer?” To be able to legally effectuate detention, an officer must have reasonable suspicion of your involvement in some type of criminal offense, and it has to be based on more than a mere hunch or upon a vague suspicion. Therefore, if the answer is NO, you are likely being detained and thus, a “detention” likely has occurred (and the interaction is no longer a consensual encounter if it was one at some point previously).  If the officer remarks that you are not free to leave, but yet, you are not under arrest – politely request the reason for the detention, and ask permission to leave once he completes whatever purpose it was for which he initially initiated the investigative detention in the first place. If this is the situation, remain polite and calm, and simply wait for him to conduct the reason for the detention. Once this is complete – then LEAVE.

 Magic Words Summary

1. “AM I FREE TO LEAVE?”
2. “AM I UNDER ARREST?” If the answer is yes to the above, then proceed to state the following:
3. “I DO NOT CONSENT TO ANY SEARCHES.”
4. “I INVOKE MY RIGHT TO REMAIN SILENT”
5. “I INVOKE MY RIGHT TO HAVE LEGAL COUNSEL PRESENT”

General Guidelines On Law Enforcement Encounters

This content is entirely meant to help inform the ordinary citizen what their legal right is who isn’t familiar with the system. I have seen too many people taken advantage of by various law enforcement officials because they either did not know their rights or were too afraid to exercise them.

In my line of work, I often tell people I work with how honesty is almost never the best policy. Advising people on matters related to criminal defense is one of the few exceptions where this rationale is a good policy to follow.

FOR EXAMPLE, MY FATHER WAS THE ABSOLUTE MOST HONEST PERSON I HAD EVER KNOWN. WHEN I WAS A YOUNG ATTORNEY, HE WAS DRIVING ME ONE TIME WHEN I WAS SICK WITH THE FLU TO HOUSTON. A POLICE OFFICER STOPPED US FOR A REASON THAT I CANNNOT RECALL, BUT I CAN VIVIDLY REMEMBER WHAT TRANSPIRED NEXT.  MY FATHER, AGAIN WHO WAS PERHAPS THE MOST ABSOLUTELY HONEST, COULD NOT TELL A LIE, PERSON I HAVE EVER MET IN MY LIFE. SINCE I WAS SICK WITH THE FLU, MY SEAT WAS RECLINED BACK AS WE WERE DRIVING ON THE HIGHWAY, AND BECAUSE OF THIS I DID NOT HAVE MY SEATBELT ON. ONCE WE WERE PULLED OVER, I IMMEDIATELY INSTRUCTED MY FATHER TO NOT SAY ANYTHING, AND TO LET ME HANDLE IT AND DO ALL THE TALKING. THE POLICE OFFICER CAME UP TO MY PASSENGER SIDE WINDOW, I THEN ROLLED DOWN THE WINDOW, AND BEFORE I COULD GET A WORD OUT OF MY MOUTH, LITERALLY, MY FATHER LEANED OVER ME AND STUCK HIS OUT OF THE WINDOW AND IMMEDIATELY BLURTED OUT, “DID YOU PULL US OVER BECAUSE MY SON WAS NOT WEARING A SEATBELT?” I WAS ASTONISHED, AND I LOOKED HIM IN SHOCK. I WILL NEER FORGET ALSO THE LOOK ON THE POLICE OFFICER’S FACE. THE KIND OF GAVE A HALF SMILE AND WAS ALSO SURPRISED SOMEONE WOULD BE SO HONEST AND SO FAST, AND HE KIND OF MURMURED SLOWLY, “NOOOOOOO…..BUT, NOW I WILL WRITE A CITATION FOR THE SEATBELT VIOLATION AS WELL.” MY FATHER WAS I THINK JUST SO ANXIOUS AND SCARED, IT WAS HIS FIRST REACTION JUST TO BLURT OUT THE LAST THING HE REALLY SHOULD HAVE, OR WAS REQUIRED TO. THIS IS A TEXTBOOK EXAMPLE OF A PERSON TRYING TO BE HONEST, NICE, ATTEMPTING TO DO THE RIHT THING, BUT IT ENDED UP WITH CAUSING ADDITIONAL TROUBLE.

This story is a small microcosm of overall dealings with the police and law enforcement, but it does reinforce how in my line of work, it is the truth – “honesty is almost never the best policy.” I don’t think I can recall many scenarios where a person has been better off attempting to cooperate as much as possible during an encounter with law enforcement and it has to be to their advantage.

If you want to lean about the Criminal Defense click here.