As a criminal defense attorney for over 27 years I have helped people who have reacted to police contact/arrests in a variety of ways. Some of those ways got them into trouble. Before you are contacted by law enforcement you might want to think about what to do if you get arrested. Really the basic rule is to simply listen to the officer and do as you are told to do.
What To Do If You Get Arrested?
You have an absolute right to remain silent-take advantage of that right. If asked if you know why you were contacted say you know. Even if you know why he stopped you. What you say can and will be held against you. 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. If you feel that urge to convince him he’s made a mistake, just don’t. The bottom line is that if the police have enough evidence to arrest, they will. If they don’t have evidence, you may provide it by talking. If you don’t talk, they will not know what you’re going to say in court and that is how you may win. Save your defense for your lawyer.
Do not resist arrest
Never touch an officer or try to swat their hands away. That would be assaulting an officer and any slight injury to them will likely turn your minor misdemeanor arrest into a felony. A DUI client was charged with obstruction for swatting an officers hand away when initially contacted and found himself handcuffed and having to post bond for what would have been a ticket. Things like this often become over-charged by the officer and can fall under the assault statute resulting in a felony.
If you run you will face additional charges, get shot, or they can use your running as an admission. You’re not likely to outrun the cops radio and likely to cause more cops as witnesses converging on the scene. Failure to obey may cause the police to suspect you’re running because you have a gun, perhaps making them too quick to draw their own firearms. Also, while most police will just arrest a runner, some who may be mad they had to work so hard and take it out on you.
Don’t trust them
If they have evidence to arrest you than anything you say will not help and if they don’t, than saying something may give them evidence. It is legal for law enforcement to lie to get you to make an admission. They are trained to lie to you to get an admission and/or confession. They will lie about having witnesses or evidence like video tape or fingerprints or DNA.
Never give permission to search
If the police officer asks, they do not have the right to search and must have your consent. Without your consent they cannot search without a warrant. Even if you have nothing to hide do not 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 they find may be excluded from evidence later. This is also a good reason not to talk, even if it seems all is lost when they find something incriminating.
Don’t look to places you don’t want them to search or react
Best to just look down and be quite. Don’t react to the search at all. If they find something don’t try and explain and don’t respond to questions like “Who does this belong to?”
Don’t Mouth offer or talk crap to the officer
Telling them how connected you are, or how dumb they are will get not help. Police have a lot of discretion in what charges are brought and who the matter develops in the justice system. They can change a misdemeanor to a felony, add charges, or even take the trouble to talk directly to the prosecutor and urge him to go hard on you.
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. 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 case. 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.
Contacted at home
Don’t invite them inside, nor should you “step outside”. My mother taught me that talking to police through a closed door is not rude. 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 law does not require you to answer your door. You may not find it so convenient to be arrested. With an attorney, you can perhaps surrender after bail arrangements are made and spend NO time in custody while your case is pending.
If arrested outside your home
Don’t 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.
Fowler & Kelly Law, L.L.P.
If you are faced with a criminal complaint or accusation, shouldn’t you hire an attorney you can count on? Omaha’s criminal defense attorney, Brendan Kelly represents clients in Omaha, Lincoln, Fremont and throughout the eastern part of Nebraska, including the cities of Blair, Bellevue, La Vista, Papillion, Plattsmouth and West Point.