Are the police allowed to knowingly lie about the law? I know that they are allowed to mislead or lie to suspects during questioning, but if I were to ask some question about my rights or legal procedure, are they allowed to mislead me then? If I ask something like “do I have to consent in order for you to search something or other?” or “is such and such against the law?” are they allowed to mislead me? I assume circumstances are different for undercover officers, so I’m mainly concerned with uniformed officers in fairly normal situations.
Here, a police officer will tell you he’s not able to give you legal advice.
Kind of like our SDMB disclaimer, except they just stop at IANYL.
So let’s say someone (very naive) said “Hey officer is it illegal to smoke pot” and the cop said no, then quickly arrested the person when he pulled out a joint and lit it.
Or for a little more of a grey area
A cop is stopped on the side of the road around 10:00 at night doing something and minding his own business. A couple of kids ask him if there’s a noise ordinance in the area. That is to say, is there a law saying they can’t have their music above a certain volume. The officer says that no, there isn’t one. The only way you could get in trouble due to music is if the neighbors complain about it. An hour later, the cop comes rolling though and hears a boom box turned up to 11, he approches the same kids and begins to write them a ticket. The kids ask if someone complained and the cop says that no one complained, but the noise ordinance says no loud music past 10:00 at night.
What would happen in that case? I suppose the cop would lie and say that he hadn’t talked to them about that before, or that he didn’t think there was one, but after he left he looked it up and found out there was one. But let’s further assume that some how the previous discussin was on record. I assume it would be taken on a case by case basis. I assume that in the pot smoking case, the kid would still be in trouble, but in the music case, they would get out of the ticket.
The defense is called entrapment by estoppel. The applicable standards vary. Here is an example:
I doubt it would succeed in the first case. The other two are closer.
As to the OP,
The first question is different. I’m not clear on your assumptions, so I’ll make a few of my own:
Cop says, “will you permit us to search your car?” You say, “Do I have to?” Cop says “yes.” This probably invalidates your consent. If the copy had probable cause to search, the exchange probably wouldn’t matter, but he couldn’t rely on your consent because it wasn’t voluntary–he told you you had to.
Regardless of the actual law, if you assume that they can and do on a regular basis, you’ll be fine.
I suppose my primary question is how badly can I get screwed if I’m brought in for questioning or get arrested? I know that the smart thing to do is to say nothing and get a lawyer, but suppose I am, as far as I know, completely innocent or the matter at hand isn’t a big enough deal to get a lawyer. If I rely on the police in that situation to tell me what I can and can’t legally do, just how badly could I be screwed? If they get me to confess to something, perhaps by saying that I wouldn’t get in trouble if I did, can they use that against me?
Perhaps in CA the pot laws are nebulous enough to make it more possible?
*
**Garula ** “I suppose my primary question is how badly can I get screwed if I’m brought in for questioning or get arrested? I know that the smart thing to do is to say nothing and get a lawyer, but suppose I am, as far as I know, completely innocent or the matter at hand isn’t a big enough deal to get a lawyer. If I rely on the police in that situation to tell me what I can and can’t legally do, just how badly could I be screwed?*”
Many Lawyers and even Judges have told me the same thing after they read you your rights, only say two things: “Am I free to go?” “I want “to speak to my/an attorney”” How do you know you are not guilty of a crime?
If you are asking these questions, your best bet by far is to say nothing until you speak to a lawyer.
Maybe slightly more likely there. There’s another catch that’s not emphasized in the quoted case. It’s a sort of separate sovereign exception. So legal advice from a state official won’t work against the federal government, and vice-versa. No time to hunt for a cite right now. If you search on entrapment by estoppel, you’ll see some cases though.
Quite badly. That’s why they have to tell you that you’ve got the right to remains silent and have an attorney present during questioning and all that. Now if they lie to you about that, it’s a different story in a lot of cases. Sorry, no time for a cite for this either right now, but it’s pretty uncontroversial.
Anything that follows that is bound to be a bad idea. Ask if you are free to leave, and if they say no, follow it up with “then I’d like to speak to a lawyer.” From that point on, say nothing.
BTW, if you ask for a public defender and they bring a cop in, and some other cop says “this is Tim from the public defender’s office,” and you spill your guts to him believing he’s a lawyer… well, I’m assuming that’s gotta be illegal. Right?
There is a difference between illegal and inadmissible.
I’d say it’s probably both. If the officer has a law degree and is also a licensed attorney that’s one thing. Otherwise, leading someone to believe you are an attorney is unauthorized practice of law and possibly fraud. If the cop is a lawyer and gets information he can’t disclose it. If he does, that’s a breach of legal ethics, and possibly still fraud.
Justice Marshall thought that Illinois v. Perkins allowed custodial interrogation by an undercover officer posing as a member of the clergy or a suspect’s defense attorney without Miranda rights, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=496&invol=292, and it’s possible he’s correct, the result would not be admissible once the a person in custody requests an attorney. That request takes us to what’s called the second-tier *Miranda * rights. First tier is the right to remain silent and the right to be informed that statements can be used against you; also the right to an attorney or to stop questioning at any time. Once the defendant requests an attorney, questioning has to stop until one is provided. A fake one isn’t going to do it.
An additional obstacle to admissibility would be attorney-client privilege. If the cop is an attorney, what he’s been told isn’t admissible. If the client reasonably believed the guy was an attorney, I suspect the state would be estopped to claim there wasn’t an attorney-client relationship. *And see, e.g., http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ks&vol=supct/1999/19990416/&invol=81640 * (“The definition of a lawyer under K.S.A. 60-426(c) includes a person the client reasonably believes is authorized to practice law.”)