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

In My Humble Opinion
21

Acting like you know your legal ass from your legal elbow will go a long way toward altering the behavior of a police officer.

Case in point.

Me, walking down the sidewalk in a fairly wealthy suburban neighborhood at about four o’clock in the morning. A cop, driving down the street at about five miles an hour. I just walk. He leans out the window, while pointing the spotlight on me.

Cop says, “Hey, what are you doing?”

I stop. I look at the cop. “I’m traveling down a public right of way, on private business, officer. What are you doing?”

Immediate attitude check by the cop. “Sir, we have had a lot of break-ins in this neighborhood.” Me: “Are you investigating one now?” Him: “Well, no, but I would like to see some Identification, if you have any.” Me: “My name is … and I live at …” He says “Do you have a drivers license?” I say “No.” There is a brief pause. Me: Is there anything else, officer?" Him “You know it could be very dangerous being out this late at night.” Me: “Thanks. Goodnight.” I walk on. The cop follows me for nearly a hundred yards, at a slow stroll. Then he turns on the blue lights, and drives off. No doubt in a rush to either apprehend criminals, or eat donuts. Who knows which?

In my home state, and county, there is no document that I am required to provide to the police. I am required to identify myself to a police officer conducting a real investigation of a real crime, which I gave him the benefit of the doubt about. But I don’t have to prove it. And I don’t have to sit around talking about the crime problems of suburbia, if I don’t feel like it. I have not committed a crime, and don’t have to prove that I have not. But the real street facts are that I have notified the cop that I do know my rights, and he must not infringe upon them.

If I am walking, and he arrests my progress on the public thoroughfare, he has to have probable cause to believe that crime has been committed, or is imminent. If not, it is false arrest. I know it, and he now knows I know it.

Tris

“He who joyfully marches in rank and file has already earned my contempt. He has been given a large brain by mistake, since for him the spinal cord would suffice.” ~ Albert Einstein

22

If you are suggesting the cops can simply stop you and search your car, you are completely wrong. Even if they stop you on a traffic infraction, they cannot search your car or your person on mere suspicion.

About a year ago, I was stopped by a cop. Not actually stopped, because I was parked and waiting in the driver’s seat to pick up a friend from work. I showed him ID, and explained why I was there. Anyway, he asked to search my vehicle.

Since he was being obnoxious from square one, I told him he could search my car if he would empty his pockets beforehand, so I could be sure he had nothing to plant in my car. That set him off, and he started practically screaming at me. I should have just said “no”. Fortunately, there were some residents out on their porch watching and listening to the whole thing. I suggested (loudly enough for the residents to hear) that he call a supervisor, which he did. A sergeant showed up, and after some discussion, they left. I did not have to submit to a search.

And I suggest never submitting to a search without a wallet. As others have said, you never know what someone else may have left in your home or car, but if the cops find it, all the sudden it’s YOURS.

23

The police do not need a warrant to search your car, but unless you are placed under arrest while you are out in your car, they do need your permission. That’s the whole point. If they wanted to get a warrant, they’d need probable cause to suspect that you were hiding contraband in the vehicle. Why should we allow them a lower standard of suspicion on a voluntary search than a court would hold them to on a warranted search?

24

Good grief.

The police do not necessarily need a warrant to search your car, and they don’t necessarily need a warrant to search your house, either.

However, all warrantless searches are presumptively unreasonable, and the burden is on the government to show that the search falls within one of the accepted exceptions to the warrant requirement.

In your car, there are more exceptions to the warrant requirement than apply to your house. I don’t have time to type out the current state of case law, but if someone has a hypothetical set of facts, I’d be happy to discuss them.

The Punkyova: police can and do obtain warrants for searches of cars. While a warrant must describe with particularity the places to be searched and items to be seized, there is no requirement that a warrant must include an address. If your source is as daft on his other points as this one, I recommend a different reading list.

yojimboguy:

Actually, the standard for a Terry stop - a brief, investigative detention and possible pat-down of outer clothing - is “reasonable, articulable suspicion”. This is a standard or proof less than “probable cause,” but greater than a mere hunch or unparticularized suspicion.

It seems to me that I, and others, have written a number of posts over the years that describe the different types of encounters with police, and the standards that apply to each. A search on “Terry stop” might prove useful to those interested in this area of the law.

  • Rick
25

I’m pretty sure this is incorrect, but I will wait for one of our law dudes to address it.

IMO, if you have the opportunity to help the cops in an investigation, do so. They (for the most part) serve justice, which serves your interest. They have an incredibly hard job under very stressful circumstances. Frankly, they could use a break or two.

If you have committed a crime, a JC prof (a former LAPD officer)told me “shut the fuck up”. Say nothing, lawyer up immediately.

I concur.

26

IANAL, etc. and this is another one of those questions that depends a lot on jurisdiction. It also depends a lot on phrasing of the request on the part of the suspect. In Wisconsin, the standard (articulated by the state supreme court not so very long ago) is that the request for an attorney must be “clear and unequivocal.” The suspect in the case that led to the standard said words to the effect of “I think I should maybe talk to a lawyer” or might have even asked the cop “do you think I need a lawyer?” and the cops continued the questioning. The court upheld the confession because the cops reasonably believed the suspect hadn’t asked for counsel. IMHO, “may I please see a lawyer?” is clear and unequivocal and no reasonable person should be able to interpret that as anything other than a request for counsel. But you’re correct, “I want to see an attorney now” is the best way to go. And then SHUT UP.

27

I have already thrown out Gelding’s axiom on police officers (a cop will lie if he thinks he can get away with it: a cop will kill you if you give him an excuse) to the dismay of several of our friends. The rule follows through with consents to search home or car and informal interrogations.

If the police officer has any valid reason to search your home or car (or school locker or backpack, or your dog’s kennel) he will NOT ask for your permission. If a police officer asks for your permission to search it means he has no independent authority to search and he is simply on a fishing expedition and hoping to get lucky. If you fall into the right demographic, you can expect that every traffic stop will result in a search request. You are under absolutely no obligation, legal, moral or civic, to consent to a search. Despite some efforts to institute a search incident to citation as a variety of search incident to arrest, the US Sup Ct put a stop to the practice several years ago. All your consent to a search does is legitimize what might otherwise be an unlawful search.

As far as talking to police is concerned, you are going to have to depend on your own good sense to figure out what the policeman is trying to do. If it looks like he is out to pin something on you, clam up. You certainly don’t hand him a confession. Be polite but don’t confess to anything. When the officer asks if you know why he stopped you tell him that you don’t know. Don’t go saying that it was because you were speeding or because your registration is expired. It may be that the officer only wanted to tell you that one of your high beams is burnt out. Police schools teach all sorts of sneaky techniques for getting people to incriminate themselves in traffic stops. Don’t fall for it. The same rule applies in dealing with police officers as in boxing: protect yourself at all times.

28

Are you seriously suggesting that there are better places to get legal advice than the Comics Buyers’ Guide? :wink: You obviously know more about this than I do, and I believe you.

Still, just after I read the article, my brother-in-law was telling me about a “fun-filled” evening one of his friends had had. It involved alcohol, some other drug use, driving under the influence, attracting the attention of the police with stupid/dangerous behavior and a high speed chase. At the end of it, when said friend was handcuffed, the police started to search the car. He went nuts, screaming, kicking at them, trying to head-butt one of the officers, all the while shouting, “You can’t search my car without a warrant!” (Or words to that effect.)

My brother-in-law and his friends were convinced that the case would be thrown out of court because warrantless searches are illegal. I suspect that many people share their illusions about the amount of protection that their car has against being searched. They truly had no idea that behavior like that described above would give the police probable cause for a warrantless search.

And, no, the case was not thrown out of court.