Am I Free To Leave?

You have the right to remain silent. Anything you say or do can and will be used against you in a court of law. Do you understand these rights?  

You have the right to SHUT UP.  I strongly suggest you SHUT UP.  The simple truth is that, if you are pulled over in a vehicle or stopped on the street by a police officer, s/he isn’t trying to be your friend; s/he is already convinced you’re a criminal.  Let’s face it, we all are.  I don’t know anyone old enough to be on their own in public who hasn’t violated SOME law.  S/he is CORRECT but it is THEIR job to PROVE it without YOUR help.  You’re talking to a law enforcement officer, not a priest so SHUT UP.

“You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.”  Id.  Not so much.  In a few states, the officer will say this: “We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.”  Id.  Closer to the truth but NOT SO MUCH.  First, “when you get to court” could be a very long time after you hear these words and…  There are many situations where you will NOT be entitled to appointed counsel at any point in the process, right through conviction and delivery to the jail!  You need to know a little bit now and it wouldn’t hurt to befriend or retain a lawyer or two.

“Do you know what I pulled you over for?” And you say: “Was I speeding?”  I told you to SHUT UP.  Now you’ve screwed up already.  In a few states you will also get this if you ever get Mirandized, “You can decide at any time from this moment on to terminate the interview and exercise these rights.”  Id.  OK, you’ve already screwed up so now what?  SHUT UP.  If in doubt of the “correct” answer, SHUT UP.

I’ll be citing a number of other websites here and you can read their advice and see how it compares to mine but I’ve emphasized shutting up because there’s simply nothing you can do to hurt yourself more than to “cooperate” with someone who wants to arrest you and/or take your property.  Anything you say, anything you DO will be interpreted and then that interpretation may be used against you because you may not get lucky enough to be on a dashcam for a judge and jury to observe for themselves.  I promise you that a judge and jury are already leaning in favor of the law enforcement officer’s (LEO’s) direction when it comes to judging veracity; that is, in judging which of you is being more truthful. 

The basics:

Even if you are outraged, don't insult or talk back to an officer.

I like the advice on this website.  I’ll add to that: WIPE THAT LOOK OFF YOUR FACE!  Practice your “I’m a decent generally law abiding resident who has rights and is confident and is NOT going to help you hurt me in any way, including not making faces” look and then slap that on your face for the duration of dealing with LEO’s.

“You cannot be arrested for refusing to answer questions. It is a crime to give false information to a law enforcement officer.”  Id.

Do NOT LIE.  Do NOT guess.  A wrong guess is a LIE.  Never, ever give a voluntary sworn statement to get out of something else.  You may not be in much danger of the other thing they are threatening but being wrong in that sworn statement may get you plunked in jail, just ask Martha Stewart.  This has become one of the most common and vindictive methods used by law enforcement; coercing a statement because they don’t think they can convict on what they want so they’ll settle for a perjury conviction and they can almost always box you into making a mistake in a sworn statement.  That mistake is a guess and a wrong guess is a LIE and that’s PERJURY.

A LEO is likely to ask you for identification/driver’s license, proof of insurance, vehicle registration.  Depending on the situation, you may not be required to provide them.  If you have them, cough them up.  That’s pragmatic advice.  Frankly, this isn’t the issue you really want to fight over in the vast majority of situations.  Let’s say you do want some of that fight…

If you’re driving, you really need to give up your driver’s license if possible.  Once you’ve done that or given your name, address, phone number if you weren’t driving, ask “Am I free to leave?”  This dance gets complicated so I’ll come back to it later.

“Never voluntarily consent to a search.”  Id.

I touched on Terry Searches in the last blog entry.  You may well get “patted down” and the LEO is going to start some chatter with/at/to you.  Generally, SHUT UP.

  • “What’s in this pocket?” SILENCE
  • “Will you take that out of your pocket?” NO
  • “Take that out of your pocket.”  Comply with the LEO’s directive.
  • “Can I look in your purse?” NO
  • “Can I search your car?” NO
  • “Can you pop your trunk open for me?” NO
  • “Pop your trunk or I’ll get a warrant.”  Get a warrant please.
  • “I’m going to search your vehicle.” SILENCE; “Is that OK”  NO
  • A Terry search may include your vehicle in some situations. If it does, s/he doesn’t need your permission.  A directive followed by a request/question is not a directive but a ploy to get your permission.
  • “I’m going to search your vehicle.” And s/he starts to do so.  Stand aside and SHUT UP with that practiced look on your face.  While in your backseat: “Can I open this box?” or “Would you open this container?” NO
  • “Can we step inside [your home or office] to have a chat?”  NO
  • (I love that one.  They’ll even tell you it’s to save YOU from being embarrassed.  No it isn’t, they want to take a peek!)  (My personal reaction to this one is NO and I WANT that “chat” in as public a place as possible.  I’m going to step out and away from my doorway.  I’m praying for witnesses to appear in the neighbors’ yards and doorways!)
  • “Could we just take a quick look around?” NO

Got the idea?  If you have an option, say no or be silent but do comply with directives.  I can hear some of you saying “but they don’t have the right to…”  Yeah, I know but they do have the power, night sticks, electroshock weapons (aka Tasers), and GUNS.  There are situations where I’d be willing to risk being shocked or shot but that is ill advised in the vast majority of situations; generally you should try not to risk those and fight the rest of it out at the courthouse.  Simple and plain: Dead people don’t get to defend themselves and rarely get an adequate “defense” by others after they die.  And LEOs count “dead” as a “win” so don’t give them an excuse to be the default judge, jury, and executioner.

“The police do not have the right to extend the traffic stop beyond the scope of the original justification for the stop unless they have reasonable suspicion that other criminal acts are being committed.”  Id.  So don’t volunteer additional justification or suspicion or probably cause.  SHUT UP.

“When an officer has completed giving you a warning or ticket, you are legally free to leave. Police often try to ask further questions or permission to search or otherwise prolong the stop.”  Id.  And now we’re back to “Am I free to leave?” time.

Do not ever assume that you can best a street cop with superior knowledge, wit or logic. By temperament, experience, and training, they will deflect all your questions while asking their own…  The more you prepare these scripts in your head, the less likely they are to play out as you planned.  I'm not trying to be negative, just realistic. We should all prepare for these encounters, but…  These guys had a nice little discussion on how these scenarios aren’t going to go “as you plan”.  There is no script for this.  All anyone can do for you is tell you to read and learn and then you’ll have to think on your feet if you do have to deal with a LEO.  That’s just more reason to stay calm, listen instead of running your mouth, and think before you speak or act.

Unfortunately, many LEOs will take offense to you exercising your rights.  You may get arrested for “resisting”, “disorderly conduct”, or some other basically bogus charge.  “What is really scary is the number of people who seem to think that unthinking compliance is a virtue. Many people say ‘you should just always do what the police say’ and ‘the Cop is always right.’ Such people are not law-abiding, they are law-ignorant.”  I agree.  I’ll go much further and say that our rights, even our fundamental rights, are “use them or lose them” rights.  Patriotism and Good Citizenship mandate we protect those rights and that means using them.  Because of the foregoing law-ignorant and their dismissiveness of rights has become so widespread, we have already lost too many rights already.  We need to encourage everyone to be patriotic good citizens, to exercise their rights often and openly.  I mean, really, how many have died and how many are dying and being injured to protect our rights?  Can’t we at least honor them by exercising those rights, not letting them slip away because that’s “easier”?

For now, the reality is you may get arrested so you need to know a bit more.  Whether the Terry Stop has gone on TOO long, “Am I free to leave?” has been answered with a resounding “No”, or you’ve clearly been arrested (handcuffs, you’re in the backseat of a police unit, etc.), say “I want a lawyer” and then SHUT UP.  These are now your 2 options.  “Once at the police station, cooperate with the booking process (i.e. allow them to take your mug shot, fingerprints, and ID). Make no statements. It is possible that you are being videotaped or recorded. If you behave badly, you might end up watching the replay in court.”  In fact, you are subject to being videotaped or recorded at just about all times in public and especially while in police custody and that includes during your PHONE CALL even if you are allowed to make it from your very own cell phone!  Assume you are being videotaped and voice recorded at ALL times.  Have a discussion NOW with anyone you might call to bring you bail money, whether it’s their money or your own, make it clear that you are not going to discuss anything other than getting that bail posted when you call them and explain why because you won’t have time to then (and you'll slip and start talking about exactly what you shouldn't.  “[D]o not discuss the reason for your arrest.  If you are released, do not confess/discuss your case with anyone.”  Id.  If you meet with a lawyer while in custody, assume you are still being recorded.  Ask your lawyer if it’s safe to speak about the case.  Attorney-client privilege used to be fairly well protected even while meeting in an “in custody” situation.  That is no longer true.  Do not discuss your case until it is safe to do so, until the information is secured by attorney-client privilege.

You may well be subjected to what you would consider “torture” after you’re arrested.  You may actually be abused in a variety of ways.  Unfortunately, it does happen sometimes.  Mostly, they just attempt to make you miserable and wear you down.  Do NOT give in.  Do NOT give up at this point.  If you give in for anything short of the truly horrendous and extreme, you won’t be able to take it back; your lawyer won’t be able to get your words, your waffling, your confession out of the juror’s minds.  If you have a medical condition that could become life threatening during an 18 hour detention and stressful interrogation, DO inform the officers OFTEN.  For example, “I am an insulin dependent diabetic and I last checked my blood sugar at 1:00 PM and I need to check it again at 3:00 PM, which is now [which was an hour ago], etc.”  Don’t volunteer more than is needed to ensure your life is protected.

If you get bailed out, “Once in private, get a notebook and write down all the details that you can remember about the incident. On the front cover of the notebook write clearly: ‘To my attorney. Privileged’”  If you know you won’t be able to make bail, you should find out now if you can do this part while in custody and if the attorney-client privilege will be respected.  If so, ask a friend to supply the notebook (college exam writing booklets work well for this) and pen/pencil.  It will depend on the jail what you are permitted to have and your friend can ask them about what they are allowed to bring you.  If you meet with an attorney while in custody, ask him/her about this.

You want to discuss things with your family at this point?  NO, Hell NO.  How about your spouse?  NO, ask your lawyer what you can and can’t discuss with your spouse and DON’T start yapping until your lawyer says so.

“Remember: all hope is not lost just because you've been arrested! You haven't been convicted of anything.”  Id.  And you're far less likely to be convicted if you don't HELP them convict you by running your mouth and making faces, let alone worse behavior.

Mr. Guest advises more along the lines of what I’d be willing to do myself.   He takes the hard line and I tend to agree.  Do an internet search for criminal defense lawyers in your area.  Many are blogging these days.  You might find one or two who will take a nominal annual retainer to just take that “one call” from jail; you might find one who will hold your funds in trust should you need bailed out.  Nice option that avoids some of the issues above about not communicating with anyone but your lawyer.  It’s really nice to be able to tell a LEO that you WANT a lawyer and HERE’S  his/her name and phone number.  It puts them on notice and makes further interrogation truly questionable (but you still need to SHUT UP).  If you're the in-your-face type and going off to demonstrations every weekend, you will be making that "one call" on a regular basis.  You'll need a bigger retainer and remember that retainer is for a service, availability, so it may not even be credited against other services provided when you do make that "one call".

You will find all kinds of advice on the internet by people who aren’t currently licensed to practice law, including this one.  They range from great to good to bad to ugly.  Here’s one on this subject that’s about in the middle of that range.    Read and learn but take everything on the internet with a grain of salt.  Befriend a lawyer or two, put them on retainer!  A couple of hundred dollars a year is a small price to pay for this type of insurance!

Go Back