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Ten things NOT to do if arrested
I have been a practicing criminal defense lawyer for 31 years
and have seen a wide variety of reactions by people who are
being arrested. Some of these reactions are unwise but
understandable. Others are self defeating to the point of being
bizarre. No one plans to be arrested, but it might help to think
just once about what you will do and not do if you ever hear the
phrase "Put your hands behind you." The simplest "to do" rule is
to do what you are told. Simple, but somehow it often escapes
someone who is either scared, angry or intoxicated. More
important to guarding your rights and interests are ten things
you SHOULD NOT do:
1. Don't try to convince the officer of your innocence. It's
useless. He or she only needs "probable cause" to believe you
have committed a crime in order to arrest you. He does not
decide your guilt and he actually doesn't care if you are
innocent or not. It is the job of the judge or jury to free you
if he is wrong. If you feel that urge to convince him he's made
a mistake, remember the overwhelming probability that instead
you will say at least one thing that will hurt your case,
perhaps even fatally. It is smarter to save your defense for
your lawyer.
2. Don't run. It's highly unlikely a suspect could outrun ten
radio cars converging on a block in mere seconds. I saw a case
where a passenger being driven home by a drunk friend bolted and
ran. Why? It was the driver they wanted, and she needlessly
risked injury in a forceful arrest. Even worse, the police might
have suspected she ran because she had a gun, perhaps making
them too quick to draw their own firearms. Most police will just
arrest a runner, but there are some who will be mad they had to
work so hard and injure the suspect unnecessarily.
3. Keep quiet. My hardest criminal defense cases are those where
the arrested person got very talkative. Incredibly, many will
start babbling without the police having asked a single
question. My most vivid memory of this problem was the armed
robbery suspect who blurted to police: "How could the guy
identify me? The robbers were wearing masks." To which the
police smiled and responded, "Oh? Were they?" Judges and juries
will discount or ignore what a suspect says that helps him, but
give great weight to anything that seems to hurt him. In 33
years as a criminal lawyer and thousands of cases, I could count
on one hand the number of times a suspect was released because
of what he told the police after they arrested him.
4. Don't give permission to search anywhere. If they ask, it
probably means they don't believe they have the right to search
and need your consent. If you are ordered to hand over your
keys, state loudly "You do NOT have my permission to search." If
bystanders hear you, whatever the police find may be excluded
from evidence later. This is also a good reason not to talk when
they find something incriminating, even if it seems all is lost.
5. If the police are searching your car or home, don't look at
the places you wish they wouldn't search. Don't react to the
search at all, and especially not to questions like "Who does
this belong to?" |
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6.
Don't resist arrest. Above all, do not push the
police or try to swat their hands away. That would be assaulting
an officer and any slight injury to them will turn your minor
misdemeanor arrest into a felony charge. A petty shoplifter can
wind up going to state prison that way. Passively resisting
arrest (such as pulling away) is merely a misdemeanor charge and
often the police do not even charge that offense, but obviously
striking an officer can result in serious injury to you as well.
7.
Try to resist the temptation to mouth off at the police, even
if you have been wrongly arrested. Police have a lot of
discretion in what charges are brought. They can change a
misdemeanor to a felony charge, add misdemeanor charges, or even
take the trouble to talk directly to the prosecutor and urge him
to go hard on you. On the other hand, I have seen a client who
was friendly to the police and talked sports and such on the way
to the station. They gave him a break. Notice he did not talk
about his case, however.
8.
Do not believe what the police tell you in order to get you
to talk. The law permits them to lie to a suspect in order to
get him to make admissions about a criminal charge. For example,
they will separate two friends who have been arrested and tell
the first one that the second one squealed on him. The first one
then squeals on the second, though in truth the second one never
said anything. An even more common example is telling a suspect
that if he talks to the police, "it will go easier." Well,
that's sort of true. It will be much easier for the police to
prove their criminal charges. I can't remember too many cases
where the prosecutor gave the defendant an easier deal because
he waived his right to silence and confessed.
9.
If at home, do not invite the police inside, nor should you
"step outside" at their invitation. If the police believe you
have committed a felony, they usually need an arrest warrant to
go into your home to arrest you. If they ask you to "step
outside", you will have solved that problem for them. The
correct responses are: "I am comfortable talking right here.",
"No, you may not come in.", or "Do you have a warrant to enter
or to arrest me in my home?" I am not suggesting that you run.
In fact, that is the best way to ensure a harsher punishment
later on. But you may not find it so convenient to be arrested
Friday night when all the courts and law offices are closed.
With an attorney, you can perhaps surrender after bail
arrangements are made and spend NO time in custody while your
case is pending.
10.
If you are arrested outside your home, do not accept any
offers to let you go inside to get dressed, change, get a
jacket, call your wife, or any other reason. The police will of
course escort you inside and then search everywhere they please,
again without a warrant. Likewise decline offers to secure your
car safely, if you do not want it searched.
That's it: Ten simple rules that will leave as many of your
rights intact as possible if you are arrested. How about a short
test? You have a fight with your live in girlfriend and the
police come and find you on the sidewalk two houses down from
the apartment. The girlfriend points you out and the police
arrest you for assault. They tell you they don't intend to
question you. They just want your name and address. Do you
answer? Well, you shouldn't. Your address is the single most
damaging admission you could make. If you admit living with her,
you may have just converted a misdemeanor assault into a felony
charge punishable by state prison. When you are arrested it is
their game, and you don't know the rules. It is best to be
silent and let the attorney handle it later. The bottom line is
that if the police have enough evidence to arrest, they will. If
they don't, you could easily provide that missing evidence by
talking. |
