defense attorneys, law officers, others - when does one clam up and ask for a lawyer?

In My Humble Opinion
1

I’ve meant to ask this several times before, and my memory was jogged by this GQ thread, so here goes.

I have seen Bricker post several times “never talk to the police without an attorney when you’ve been arrested”. Also I seem to remember that in his opinion one should never consent to a search (vehicle, house, etc…)

At what point should I cooperate with police and at what point should I be recalcitrant?

(Sidebar: From what I’ve read on the board, my understanding is that the “Miranda” warning needs to be given before a custodial interview, but not before an arrest, and the policeman reciting the “You have the right to remain silent…” at the time of an arrest are following Hollywood convention instead of actual practice.)

Examples and hypotheticals:
[list=A][li]Once a policeman showed up at the door of a house I was renting. They said “We’re looking for X”. I replied “There is no such person here and I’ve never heard the name. But you can come in and look if you want.” Was that a mistake?[/li][li]Traffic stop. A policeman asks me “How fast were you driving?” I usually answer with my real speed (maybe take off 5 or 10mph in the foolish desire to minmize my “crime”.) If the policeman says “can I search your car” I would say yes since there’s nothing illegal in there anyway. Why would that be a mistake? Or is it?[/li][li]A policeman shows up at my doorstep and says “I have a few questions about your neighbour. Can I come in?” Do I let him in the house? Do I answer his questions about my neighbour?[/li][/list=A]I could probably think of many other hypotheticals, but when should one “help” the police and when should one put one’s own interests first? I think it’s our duty as citizens to cooperate with law enforcement officers, but it’s also our duty to ourselves to protect our interests.

2

The way I look at it, yes–it is our duty to do what we can to help out if we can but it’s their duty to investigate crimes without regularly infringing on citizen’s privacy.
If it were me (and I’ve learned the “don’t talk to cops without a lawyer” lesson the hard way) I’d:

A) Tell them I didn’t know person x and leave it at that. You know that guy’s not in your house, why would you let them in?

B) Admit to whatever speed you were doing. Decline the search. If they really want to push it, they can bring out the dogs and search you anyway. A lot of people say “why not” since it’s a crime-clean car, but if that’s the case–why would they need to search it anyway? To absolve you of a crime they have no reason to suspect you of?

C) Chat on the porch. If you’re feeling really helpful, let him in if you know your house is crime-free, but keep him in one room. Depending on what kind of questions they were asking about my neighbors, I might play dumb. For example, I’d admit to hearing gunshots in their home, but not to seeing them smoking a joint on their porch.

My main criticism of the “but I’ve got nothing to hide” approach is that it encourages a mindset in police–and others–that anyone who doesn’t immediately consent to everything from a quick chat to a full-cavity search is obviously hiding something.
Interesting question, Arnold!

3

A) I probably would have answered their questions but not have asked them if they wanted to enter my home.

B) If I believed the speeding ticket was marginal and that the cop would let me go on the speeder if he found nothing illegal in my car, I would submit to the search.

(Yeah, I sold my civil liberties pretty cheaply)

C) I would let them in and answer their questions, sticking to the facts 100%, but not volunteer any information unless I was convinced they were doing something that I felt I had an obligation to report, still sticking to the facts.

4

On a theoretical basis, it is good to help the police nail criminals. On a practical basis, once the police go from asking you questions about someone else to asking you questions about you, your car or your house, then they are on a fishing expedition looking to pin some sort of crime on you. Act accordingly. Politely tell them that you’d like them to leave and obtain a search warrant if they want to search your house, politely ask for an attorney if they want to question you about your activities and then, and this is very important, shut up. When the police chide you about your asking for an attorney or a search warrant - if you don’t have any real life examples to refer back to, just imagine Det. Lenny Brisco of TV’s “Law & Order” because he does this on every show - and politely reassert your right to speak to a lawyer.

5

PatrickM, belladonna - maybe they’re doing investigative work without any specific suspicions towards me personally.
e.g. The police have heard reports of a young girl being kidnapped in the neighbourhood. They stop me for speeding and think that I look suspicious. That’s why they ask to search my car (though I don’t know the reason why.) Wouldn’t it be my duty as a citizen to let them look?
For the policeman knocking on my door to ask me a few questions - what if he’s heard of someone who escaped from a carjacked car and is loose in the neighbourhood? Maybe that’s why he wants to come in?

The policewoman asking me questions about my neighbour - perhaps she doesn’t want to have the neighbour know that she’s asking questions about him, because the neighbour might get spooked and flee if the neighbour is a wanted criminal. If a policewoman is investigating my neighbour and in the course of conversation in my living room sees a small bag of marijuana hidden under the coffee table (hypothetically - I don’t keep marijuana around the house), what are the chances that she will haul me in and arrest me? I imagine that she would just tell me “you know that’s illegal don’t you?”

6

I’ve never had any problems with talking to the police, when questioned about something I may have seen or know about. (Never anything serious). I may or may not let them look around. It’s never happened before.

If you really did something, or you fear that you will be implicated in something serious, lawyer-up right away.

Incidentally, if you are being questioned, and want to stay silent, ask for a lawyer, rather than just refuse to talk. If you refuse to talk, then can approach you later, after a “reasonable time” and ask more questions. If you ask for a lawyer, they can’t ask you anything until you have one, or you approach them.

Re: when the Miranda warnings are given, I don’t have much experience, but the cop would be a moron to not give them to you at the time of the arrest. You are in custody as soon as you are arrested. You might say something before you have the “formal” interrogation.

IAAL, but don’t do criminal law. It is amazing how many people actually do consent to a search of their car, bag, etc. and the police find drugs, or whatever.

7

Miranda applies not simply to custody, but to custodial interrogations. If the police have no other plan than to pick you up and put your butt in jail, they would be morons to Mirandize you. If they aren’t asking you questions, and you decide to make incriminating statements, Miranda won’t help you.

8

I would decline any search on principle.

Unless there is a compelling State interest in searching my home or car- in which case they probably wouldn’t need my consent- a government offical has no more business rummaging through my stuff than any random stranger. Less, really.

In fact, I think it ought to be considered not just a right but a responsiblity for an American citizen to keep the government from unwarrented incroachment on our freedom. It’s OUR government ya know.

9

You would think so, wouldn’t you? Afraid not.
You just never know what kind of cop you’re dealing with. Hence, my caution.

As for your kidnapper in the car scenario–yes, I’d let them look into the back seat and I’d quickly pop the trunk. Do they need to be poking flashlights under my seat, though? Not if I can help it.

10

A person’s immediate reaction at the time can later be given weight at trial, so for intelligent people, I recommend a few words expressing shock and denial followed immediately by clamming up and demanding counsel. Dumb folks should simply shut up and demand a lawyer.

11

Call me a selfish bastard, but my primary interest in such a situation would be self-exoneration. If I can clear myself by submitting to a search, I’ll do it without hesitation.

Cop at my door: “Sir, you match the general description provided by a witness of a man who abducted a little girl near hear. May I come inside and search your house?”

Response Option #1: “Sure, come on in. I had nothing to do with it, and hope you find the guy who did this.”

Response Option #2: “Sorry, you’ll have to come back with a warrant.”

For me, this would be a no-brainer (Option #1). I feel absolutely no obligation to avail myself of my civil liberties when it’s in my interest to waive them. Nor am I particularly convinced by slippery-slope arguments that they must be constantly invoked lest they be lost. If I can prove I didn’t do it, I will.

12

IANAL,

You are under no legal obligation under any of the three circumstances above to help the police out.
You are under no moral obligation to conceive of scenarios within each hypothetical where helping out the police would be the correct thing to do.

If you do not mind the intrusion AND if you are sure they will not find anything when they do search, then go ahead and give up your rights. But they are your rights to protect if you so choose.
Heck, even after you consent to a search you haven’t fully waived your rights. If you suddenly remember that you stashed 3 illegal immigrants into your trunk and tell them to stop searching before they get there, they must.
If you talk to police during an investigation you still can, at any time, ask for a lawyer.

The bottom line is that your rights are always there. Use them or don’t use them. Your choice.
Personally, I would definitely not help them out with B, probably wouldn’t help them with A, and probably would help them with C.

13

The issue is somewhat simple, from my point of view. While “being a good citizen” is important, it’s seldom worth getting embroiled in the legal system, and seldom results in such value to society that the risks are worth it.

In the OP’s first example, you know the person sought is not there. Inviting the officer in means that anything he happens to see in the apartment of an incriminating nature is now admissible against you, no warrant required. “Oh, I have nothing to hide!” Good for you. But how about your visitors, your roommate, his visitors? Something dropped in a panic by a guest in the apartment may suddenly be your problem to explain.

In the second example, admitting your speed hands the officer a conviction. You’ll be in poor shape to contest the speeding ticket, should you choose to. And you can contest it without lying – remember, it’s the state’s obligation to prove your guilt. But part of their proof can be your admission of wrongdoing. Why hand them that? I recommend: “Gee, Officer, I guess I wasn’t paying careful attention; I don’t know what my exact speed was.”

Also from this example, the same objections to a car search exist as to the apartment invitation. Sure, you have nothing illegal in the car… but who else might have been in it, and what might they have left behind, unbeknownst to you?

In both of these situations, the actual benefit to law enforcement, and society, is slight. You know that there’s either nothing to find or, if there is, it isn’t anything you knew about. How is the officer hurt by your refusal?

In the last example, I see nothing wrong with a cautious conversation. In that case, a serious investigation may exis, and your truthful answers may help.

Obviously, the moment you get any sense that YOU are the target of the investigation, your cooperation should cease. Once that happens, you need to focus on your self-preservation.

  • Rick
14

Here’s the reality…cops are required to impose front-line order on all kinds of people whose lives may or may not be working. And they have to do it blind, every time, with the potential for immediate threat looming and hairy legal second-guessing in the wings.

In a traffic stop or knock on the door, listen to what they’re asking and do what they ask. If you don’t have anything to hide, cooperate. (Even if you have small stuff and they’re looking for felons, roll w/ 'em.) There are bad apples but the vast majority of cops just wanna 1. not get shot and 2. take real threats out of the way. Mostly they really couldn’t care less about little stuff–unless they weigh it and you as a lever.

Honestly, they have excellent–if cynical and hard-bitten–radar. If you’re just a by-stander, your courtesy and cooperation are gold. Cops are not enemies. They’re impossibly stressed, front-line folks trying to handle crap most of us live amidst and never even see.

BUT if they come to you, asking you personally to “just come talk”, don’t say a word–a WORD–without a lawyer present. My ex, a technicolor bottom feeder, got sucked into a lethal, legal nightmare this way.

It’s hard to judge, but most times cops would like citizens to help but don’t rely on it… (They trust any of us; that’s the gritty “turnabout” reality.) They aren’t fools and they aren’t predators. Never forget they’re ultimate pragmatists, and idealists.

So…if the context is shit comin’ down in your proximity and you don’t like it, suck it up and cooperarte. If you aren’t doing anything majorly bad and work w/ 'em, they’re the absolute best friends you’ll ever have. But if the attention is directed at you specifically, calmly and courteously decline to say anything–anything–without a lawyer present.

Clear as mud, huh?

Veb

15

I once made the mistake of letting an officer in and talking to him. I ended up under arrest. Never again. No cop crosses my doorstep without a warrant with my name on it.

I don’t have anything illegal in my car (that I know of) and there’s no way in hell I’d let anyone search my vehicle without a warrant.

My feeling is that I would answer with the bare minimum of information. I don’t trust the police not to take what I say about my beighbor and somehow use it against me. Maybe I’m paranoid, but spending a day in jail on a completely bogus charge does that to a body.

16

I couldn’t possibly disagree more. Perhaps its simply from my experience from living in communities where everyone is suspected of something wrong just because they live there, or from being part of a demographic which is more often stopped in certain places because we fit a certain profile, but when I know that I’ve done nothing more than speeding (if even that) I am not allowing the police to search my vehicle, and I’d never suggest that anyone else do so. And if police come to my door wanting to do a warrantless search, they can go bark up a rope. Why? First of all, there’s no compelling reason to allow police intrusion into my life. Second of all, by letting them waste time with me, when I know I’ve got nothing to find, I’m preventing them from catching real criminals. Nope, not going to do it.

That still doesn’t justify letting them take liberties that they’re not entitled to take, one of which is the detention and search of innocent citizens with only vague (at best) or even no particular probably cause.

And frankly, your advice, TVeblen, could have disastrous results if heeded by someone who encountered a cop like the ones who came out of LA’s Rampart Division, or in Inglewood, or the ones that were having fun with racial profiling on I-95 in Jersey.

For the record, IAAL but do not practice, per se, and certainly not in criminal law.

17

:smack: That should be “no particular probable cause.”

18

You make a valid point there, tlw. I was going by my own experience, and that’s pretty limited. For example, cops asked if they could search my yard and garden because, during a chase and drug arrest, the guy tossed some drugs aside and they thought it might have landed in my yard. I said, “sure”. Maybe in retrospect that was stupid. I figured it was just the helpful thing to do.

I’ve reconsidered what I wrote in light of your comments, and you changed my mind on some things. In a routine traffic stop or if a cop came to my door, I think I would permit a search. The most incriminating thing they would find is some dust bunnies under the couch but you’re right. Unless they have probable cause and go through the steps for a warrant I wouldn’t want them on a searching mission.

Hmmm. I guess I’ve been operating from the dumb, innocent schmuck’s outlook, i.e. “I haven’t done anything so look all you like.” Then again, all my experiences with the police have been very positive. In all honesty they’ve been the good guys, the ones protecting me and mine. But it probably isn’t realistic to project that experience wholesale.

Good catch, and thanks for making me think.

Veb

19

That’s wouldn’t permit a search.

Real fine; backspace to clean up the italic tag and then totally mess up the meaning.

Sigh.

20

Just two comments, and I am not a lawyer:

  1. The police don’t need a warrant to search your car. My source on this is unimpeachable: The Law is a Ass column in the Comics Buyers’ Guide. According to Ingersoll, this is for two reasons. 1) The theory of a search warrant is that a person’s home is their castle, and your car is not your home. 2) Search warrants are written for specific addresses, and cars move around. At the time of the column, he said that the Supreme Court had upheld this in three separate rulings. So don’t count on the need for a search warrant to keep the police out of your car.

  2. I can’t remember where, (useful,no?) but I read an article about asking for a lawyer. The gist of it was that you can’t ask, you have to demand. Asking politely, “May I please see a lawyer?” (as women are usually socialized to do) doesn’t count. The police can and do continue to question. You have to be very forceful. “I want to see a lawyer, it is my constitutional right to have my attorney present, and I am not willing to say another word without him/her here!” Apparently ignoring a request is within the boundaries of acceptably pressuring the witness.

Interesting question, Arnold!