When I first visit with a criminal client, I usually like to have a copy of the police report or probable cause affidavit to go over with them. Even after 11 years as a licensed lawyer, and 13 years of participating in criminal cases, I am still surprised, and shocked, at what people will tell the police when confronted. When being stopped for a minor traffic offense, they will tell them that they recently drank, or smoked pot, or give conflicting stories, or lie to about their identity. When I ask why you blabbed everything to the police, invariably I get variations of answers such as “I am an honest person” or “they were going to search anyway” or “they told me if I cooperated it’d go better for me.” There is a distinct problem with all these answers.
First, even if you are an honest person, you don’t have to tell the police every bad thing you have done in your life. What purpose does this serve? And even if YOU are an honest person, the police are not going to return the favor. The Supreme Court has said the police can lie to you, and it is just fine. But lie to them? It’s a crime. Crazy, right? All you do by telling them everything they want to know is make it easier to send you to jail and convict you. The proper response to every question (except whether to take a breathalyzer) is: I would like to speak to my lawyer, am I free to go?. Where are you going? I want to speak to my lawyer, am I free to go. How much have you had to drink? I want to speak to my lawyer. Do you do drugs? I want to speak to my lawyer, am I free to go? Were you driving the car? I want to speak to my lawyer, am I free to go? Got it?
If they tell you something to the effect of “we can do this the easy way or the hard way” or that they are going to search anyway, the proper response is “we will do it the hard way- I do not consent to any searches.” They may search anyway. So what? At least I can challenge that search. Once you give consent, most ways I can attack the search are gone.
Last, while police technically “can” make it easier for you, they almost always don’t. I had a recent visit where the police did let them go at the time, but filed charges a couple of months later when they didn’t get what they wanted. While “cooperating” may make it easier for the police to arrest you, and the DA to convict you, you are doing yourself no favors by doing what they want you to do.
But what if I am innocent, you say? There are literally thousands of stories where someone cooperated and ended up in prison for something they didn’t do. People have been executed for things they didn’t do because they “cooperated” and when they said something that seemed to be innocent at the time, it was misconstrued and used against them at trial. Let your attorney help you make a statement. Don’t try to do it yourself.
So let’s recap: You are only required to give police your identifying information. Upon doing so, ask them repeatedly and often, am I free to go? Do not give them any further information. It is none of their business. Do not consent to searches. Ask for an attorney if they won’t let you leave. Ask for a supervisor if they wont tell you why they won’t let you leave. Don’t lie to them, but don’t tell them anything either. Will this piss them off? Yes, but so what? I would rather you be sitting across from me with a case I can take to trial and have a chance of winning, rather than a case you have confessed to everything.