One thing I get asked a lot is what to do when you have the unfortunate experience of coming into unsolicited contact with the police. WIth the caveat that laws vary from state to state, here is my advice for those in Oklahoma:
- You Have the Right to Remain Silent – USE IT! You do not have to tell the police where you are going, who you are going with or what you are going for. You don’t have to tell them how much you have had to drink that night, or when was the last time you used drugs or took a pill. All you have to do is produce identification IF you are the driver of a motor vehicle and have been pulled over for a traffic violation. Other than that, politely decline to answer their questions (“My attorney has advised me to politely decline to answer any questions. Am I free to go?”) Although it sounds simple, in reality everyone is slightly intimidated upon being detained by a police officer, even criminal defense attorneys! But stick to your guns and decline to answer their questions, even when they start threatening you, which they will. If you don’t follow this advice, and you open your big mouth, don’t lie. Even though the police are allowed to lie to you, you are not allowed to lie to them, it is called obstruction. Repeat after me – “My attorney has advised me to politely decline to answer any questions. Am I free to go?”
- You Have the Right to Decline Searches – USE IT! When the police ask (tell you) if they can search you for weapons – politely decline, even if you do not have any weapons. When they ask if they can search your vehicle, politely decline. If they ask if they can come in and talk, or look around, politely decline. This will not make them happy, and they will say, we can do this the easy way or the hard way. Make them do the hard way. They will ask you if you have anything to hide, just ignore them and ask if you are free to go. I cannot tell you how many times I have had clients that know they have drugs or something incriminating on them and they consent to the search. At that point, it is game over and it makes it very difficult for me to challenge the search.
- You SOMETIMES Have the Right to Leave – SO LEAVE! Cops like to prolong encounters by giving you your license back and then saying “Hey, can I ask you a few questions?” The only appropriate response is “NO, am I free to go?”. If they start asking more questions, you ask “Am I free to leave?” They will generally not want to answer you so you ask again. And again. And again until you get a response. If they continue to refuse to answer, you tell them – If I am not being detained, I am leaving. And leave. If they have enough probable cause to continue the detention, they will. And the longer you remain there, the more probable cause they will find.
- You Have the Right to an Attorney – MOST OF THE TIME. If police ever want to talk to you, tell them you want an attorney. If they want you to come to the station for a talk, even though you are not arrested, tell them to call your attorney. You will not explain your way out of a charge, and will very likely talk your way into one that you may or may not have committed. False confessions are a huge part of wrongful convictions. “But Mr. Faulk, I am completely innocent, why shouldn’t I talk to the police?” BECAUSE THEY WILL TWIST YOUR WORDS. THEY WILL LEAVE THINGS OUT. THEY WILL TAKE THINGS OUT OF CONTEXT TO FIT THEIR THEORY OF THE CASE. If you are truly innocent, a lawyer will be able to get your side across, if necessary. “What do you have to hide?” Your response – “Nothing – I just don’t talk to the Police about anything.” One big exception – you do not have the right to talk to an attorney before taking the state’s breath or blood test when suspected of a DUI or APC. If you ask for your attorney, they will put this as a refusal. Take the official test (not the PBT in the officers vehicle, but the official test). Then when they start asking you about how much you have had to drink or when the last time you smoked pot was – you tell them nothing (See #1) and ask to speak to your attorney. I will talk more about DUI’s in a later post, but in general if you are being asked questions by the police you say: “I would like to speak to an attorney”
So that’s the basics of your rights. I will talk about them more in the future, but for now, remember, you have rights, so USE THEM.