If you or someone you know has been arrested, remember these three things:
Ask for a lawyer
Do not talk to the police about the facts of your case, and contact my office immediately at: (415) 345-1335.
It sounds like easy advice to follow, and it is, until the stress of the interrogation and being in police custody clouds your judgment with fear.
The following is intended as a very simple set of scenarios with suggestions for non-lawyers to keep in mind if arrested or even questioned by the police:
At your residence:
It is not uncommon for police to visit the residence of a suspect, sometimes with little more than a mere suspicion of wrongdoing from a neighbor’s complaint. While an arrest warrant is normally required in California for the police to arrest someone in their home (without “exigent circumstances”), the police may try to lure a person out of the residence to make an arrest. This type of police conduct may be attacked later, but it may lead to the suspect attempting to “talk” his way out of the arrest. Herein lies the grounds for the following rules: Never come out of your house to talk with the police, and never talk to the police. If you are arrested, immediately ask to speak with a lawyer. This advice will be repeated almost verbatim in the section below on post-arrest advice because it bears repeating many times. Unfortunately, whether through foolishness or a mistaken belief that they can “talk” oneself out of an arrest, too many people ignore this advice.
In your car:
The rules have a few extra wrinkles with a motor vehicle stop. Again, while must identify yourself to police, you do not have to talk about the reason for the stop, where you’re going, or your “status” (unless you are on parole or probation). Most vehicle stops are for minor traffic offenses, in which case you should sign the ticket without comment. Even with a DUI, you only have to identify yourself and show proof of registration and insurance. Do not talk about anything else, including what you had to drink. You do not have to take field sobriety tests or field preliminary alcohol screening tests (unless, again, you’re on probation or parole). If arrested, you should elect to take a blood test, but say nothing more. Do not grant the police permission to search your car (though they may after you’re arrested). Above all, don’t let the police bully or shame you into making any statement (you know, the one that “will be used against you in a court of law”).
In a public place:
“Public Place” could be anywhere, but as used here, it is usually a bar. People go to bars to drink, and folks are not always at their best when they’ve been imbibing. Police may be doing a “bar check,” or they may have gotten a complaint from the management. Either way, they may take an interest in you. As stated in car stops, you must identify yourself. Don’t talk about anything else, or even attempt to talk your way out of anything. If the cops are going arrest you, simply go along and ask for your lawyer. Once again: do not talk with the police, and ask for your lawyer.
In the police car, or at the police station:
Did you know that in California, the police can secretly record your conversation while you’re in custody without your permission? One of the oldest tricks in the book for police is to leave two or more suspects “alone” in a police car or interrogation room, and then record the inevitable incriminating conversation between the defendants. I’ve had clients who have talked their way right into prison in situations like these, even when the cops had little other evidence to use. And those recorded statements are, with few exceptions, admissible in court against you. If you take the advice of a “jailhouse lawyer” and talk or try to get your stories straight, you’re going to have a very unpleasant surprise in court. Don’t talk, and ask for a lawyer, period.
Over the telephone:
Your statements made in telephone conversations and on voicemails can’t be used against you, right? Not necessarily. They can be used against you just like the cops’ recording of your statements if your are in custody. Or the cops may have secured a valid warrant to tap your phone. All that’s needed as a foundation for the prosecutor to use these telephonic statements in court is authentication and (incriminating) relevancy. Don’t make statements over the phone, on voicemails, answering machines, in emails, texting, or any other way of transmitting or recording a statement. And, again, ask for a lawyer immediately if you’re being questioned or if you’re arrested.
The “Off-The-Record” interview by police:
The best detectives are also the best salespeople in the world. They can get things out of a suspect before he or she knows what’s happened. There is no such thing as an “off-the-record” conversation with the police. And if you’re free to go at any time, they don’t even have to advise you of your Miranda Rights (“You have the right to remain silent,” and so forth). No matter how likable or sympathetic an officer may seem, his or her job is to get as much evidence against as possible. Also, the police have recently been using – with great success – a macho-oriented taunt of male suspects by telling them to “Man-Up” to the charge and admit everything. Does it even need to be said that exercising your right to remain silent has nothing to do with anyone’s courage? Don’t talk to the police, and ask for a lawyer as soon as possible.
Is it safe to talk with the police if I haven’t been read my Miranda Rights?
No. If decide to take the perilous step of becoming your own lawyer and deciding when it’s safe to talk with the police, such as before your “rights” were given to you, you have the biggest fool in the world for a client. Certain things must take place before the police are required to advise of your rights, and this is not the forum to discuss the very complex sets of facts giving rise to this requirement. Just be advised that if you decide to talk to the police, other than identifying yourself, you will handcuff your defense lawyer later in court.
What about talking with my fellow inmates or family members?
Inmates sell other inmates’ statements to the cops for leniency in their own case. Your statements to another inmate are definitely admissible in court against you. Also, there is no legal “privilege” between family members (except a spouse), and unless they are your lawyer or clergyperson, please do not talk about things that may come up in court as your admission, or even confession. Again, your statements (except truly privileged ones) may be recorded by the authorities in California and used against you in court.
A Final Word or Two
While we’ve covered a few basic scenarios of how you may be arrested – and what to and not to do – this short article is in no way intended to be anything more than the most simple plan for the non-lawyer who has found him or herself arrested, or about to be.
If you feel that you may become the focus of an investigation, please contact me, San Francisco defense attorney Michael Ross, at (415) 345-1335.