July 2009
Friend or Foe: Protecting Yourself if Arrested
My story.
As a Criminal Defense attorney, I am repeatedly asked the question regarding police officers: Are they friend or foe? My first experience with the law came at age eighteen, which is more years ago than I care to admit. It’s easy to look back and say how stupid I was at the time, but hey, that’s half the fun of that age. There I was, sitting on the sidewalk getting my Miranda rights read to me. And as anyone who has been in a similar situation already knows, my head was seriously spinning. I was scared at the prospects of jail, embarrassed by the fact that a crowd was watching, and most of all, worried what would happen when my parents found out.
I still remember the words coming from the police officer, who was playing in the role, I recognized from watching too much TV, of good cop. “I’m gonna read you your rights... I can’t even believe I’m doing this, it’s so silly, but I got to read them to you anyway. It’s no big deal! After that, we’ll talk and I’ll tell everyone how stupid this is and it will all go away.”
The right decision.
It sounded like a good deal to me as the crowd was starting to grow, I was getting more embarrassed and the prospects of my dating life were starting to dim. But after it was done, I did the bravest thing I’ve ever done up to that point of my life: I told the police I wouldn’t talk until I spoke with an attorney.
The officer quickly changed to the bad cop. I almost wet myself as he started yelling and told me I was going to jail (and that was a really big gun on his belt). Scary prospects for an eighteen year old (or any age), but as I wasn’t arrested that night, didn’t go to jail, and was never charged with a crime, it turned out to be a good decision.
Friend or foe?
So... are the police friend or foe? The answer, of course, is yes (you didn’t expect a lawyer to give you an easy answer, did you?). One of my best friends is a police officer in Long Beach. Every day he puts his life on the line to protect his community, and in that role, he and every other member of the police force will always have my respect. I think most will agree that there is nothing more comforting than the sight of a uniformed police officer when they are in a dangerous situation.
However, if you show up on the radar as the suspect of a crime, you need to quickly come to the conclusion that the police department is not your friend. Harsh words, but an even harsher reality. In our criminal justice system, it is the police officer’s duty to arrest, the District Attorney’s duty to prosecute, and the judge’s duty to determine guilt and sentence. If you are expecting a police officer to make a judgment as to your guilt at the time you are pulled over, arrested or otherwise detained, you are expecting too much.
Silence is key.
I cannot tell you how many clients I’ve had who thought that they could explain the situation to the police, and the officer would be reasonable and let them off easy. Many were given the same line I was, “just talk and we’ll make it go away.” But there we sit in my office, with page after page of what amounts to a willing confession that I will later fight to keep from a jury. I repeat this advice and will continue to repeat it as long as I practice in the realm of Criminal Defense, when you’ve been stopped by the police for any reason, silence is golden.
The Supreme Court ruled that you have to give the police your name when asked. And the normal small talk such as “what are you doing” and “where are you going” are usually safe questions. But when the questioning turns to something which could possibly incriminate you (such as, “what have you had to drink tonight”) you need to be on your guard. I always recommend treating the officer with respect. They have a tough job and there is no reason to provoke an already tense situation. But should you ever be threatened, fooled or bullied into handing the police the evidence they need to send you to jail? Never!
Hire a professional.
If the police tell you they’re going to arrest you if you don’t talk, guess what, they were going to arrest you anyway. Anything said may only help the likelihood of a later conviction. The word foe implies a legal fight may be coming. And my advice will always be to get a professional on your side before you start that fight. There are too many ways to incriminate yourself and the police are experts in collecting evidence.
To sum up this article, protect yourself. When you are the suspect of a crime, no matter how good of a person you truly are, the police will treat you as suspect. If you don’t know what questions could incriminate you, it is better not to say anything. As a rule of thumb, the least you say to the police outside the presence of your attorney, the better.
I am thrilled to be asked to write a legal article for The Blade. My practice centers around Criminal Defense and I have also worked in the areas of Adoption and Estate Planning. I hope to share some useful insights in the upcoming months that are of interest to the community. I look forward to receiving reader questions and incorporating them into this article.
Keep yourself safe and I look forward to talking with you in future months.
Gary Polston