The Rules
Don´t Fail the Attitude Test
You should treat cops with respect even in the face of their disrespect. Everything is on camera now (body cameras are designed to record two minutes before activation, and in most jurisdictions are required), and your attitude will help you later in court . Be polite, but always follow rule number two…
Consent to nothing, not even a conversation
This is the most important rule. Cops spend hundreds of hours learning how to get you to give up your rights. You must follow commands, but make sure they understand you are not ¨consenting.¨ You have the right to walk (but not run) away from any cop attempting to engage you in a conversation.
This does not apply to when they pull you over in a car – car rules will be discussed separately.
They will say, “hey can I talk to you for a minute?” “Or hey, what´s up?” This is your opportunity to follow rule number one and say very respectfully,¨sorry I´m busy but you have a nice day¨ – and then keep walking. In fact, you can just keep walking, but if they then say ¨stop¨, you must do so.
Just remember to tell them that you are following their orders but you are not consenting to give up your Fourth Amendment rights. Even when they are violating your rights, make sure to stay respectful but consistent, and remind them at every step of their actions that you do not consent, but are only following orders.
You might not win the battle in the street, they may stop you and/or search you regardless, but if you follow these first two rules you have a good chance of winning the war in court.
There are numerous exceptions to the warrant and search requirements, but the bottom line is most people consent. If they detain or arrest you, search you or your property, they will have to justify it in court in order to use it against you. Don’t give up that right. This rule is designed to deter unlawful police conduct, because if they break the rules, they don´t get to use the evidence against you.
The exceptions are complicated, but their first rule of thumb is to get your consent.
NEVER GIVE IT TO THEM. But always follow direct commands so you don´t get shot.
Understand the difference between detention and arrest
A cop is allowed to detain you if they have a reason to believe you might have committed a crime, but do not yet have probable cause to make an arrest. Ask them if you are being detained and not arrested, and if they say yes, remember that anything you say can still be used against you – they do not have to read you your Miranda rights unless you have been formally arrested and they are questioning you with the intent to get you to confess to a crime.
What this means is that if you have done anything that might be considered a crime, you should say nothing except ¨I want to remain silent and I want a lawyer.¨ You will not be able to outsmart the police, and if they have enough to detain you, they will likely arrest you, and keep quiet even if it means a trip to the police station because you refuse to help them incriminate you. If you say nothing, it is more likely you will ultimately not be charged. Nothing you say will be used to help you.
The only exception to this rule is you must identify yourself if commanded to do so. Name, date of birth, address if you have one and/or identity number or social security number. Nothing else. And if they tell you that you are not being detained, ask them if you are free to leave, and then leave. But again, walk, don´t run.
Running away from cops is considered suspicious behavior, whilst walking away is not
Nonchalance, not nervousness needs to be your motto
It may be very hard to follow this rule if they tell you they are only detaining you to ¨sort it out,¨ but remember, if they have detained you, they have a suspicion you have committed a crime. And putting you in handcuffs is generally allowed for “officer safety,” even if they are only detaining you. It is better to always say nothing and get released at the police station than to say something that they absolutely will be allowed to use against you.
Miranda rights are only required when the police have arrested you and are attempting to get you to incriminate yourself
This is why it is so important to say nothing even if they tell you that you are only being detained. When you refuse to give them anything other than your name and identifying information, they may arrest you, but at least you have not given them any other ammunition that will later be used against you. If they arrest you because you refuse to help them “sort it out,” they should read you your rights. Once they read you your rights, say only two sentences – ¨I want to remain silent. I want an attorney.¨ Be very concise, do not say maybe I should get an attorney, or do you think I need one. And then say nothing else. Anything you offer up, as people get nervous when arrested and think they can get the cop to tell them something helpful, can still be used against you if the cop is not actually questioning you in an attempt to get you to incriminate yourself, and whilst you are formally in custody (and believe it or not, being handcuffed and in the back of a police car doesn´t count). This is a nuanced issue that lawyers and judges continue to argue about, but always default to the two sentences highlighted above. They can talk about the weather, but any response you give them can get you in trouble. And never think that your silence can be used against you, it cannot. This is one of the rare “bright-line rules” in the criminal justice system, if the prosecutor so much as mentions it, the case will be kicked out of court. Money Bag: (Doyle Rule, anything someone says after asking for a lawyer is 100% inadmissible in court. If mentioned during trial, a mistrial will be granted. The cops may threaten you, but they are not officers of the court, this rule is sacrosanct.)
Repeat after me - ¨I want to remain silent. I want a lawyer.” And then pretend you are a prisoner of war (which you may be), and then its name, date of birth, and identity number. Period.
Memorize a few phone numbers of people you can call if you are arrested
They will not let you look at your phone if you are arrested or detained, and if possible, turn it off before being taken into custody. It is also best to never have facial ID or thumbprint identification on your phone, bad cops can hold it up to your face or use your print, but they can´t force you to give them your password.
They do need a search warrant to search it, but if it is unlocked and on, they may do so anyway. But everyone should have memorized the numbers for a few people they can call if they are in a jam, and/or need bail money, childcare coverage, or to call in sick to work, etc.
If actually arrested, keep information minimal
Absolutely do not admit membership of any gang or group that could be used against you. They will tell you they need this during booking for jail assignment, but don´t even admit to being from a certain neighborhood. Just give them your name, identity number if you have one, and your address – nothing more.
Do not bail out until you have had an opportunity to see a judge
Don’t bail out before seeing a judge, unless you have determined that there are no other HOLDS (immigration, parole, probation or other warrants) and you have reason to believe they might be forthcoming.
Green card holders and those with lawful visas are not immune from immigration holds, unless you were born here, you might want to get out quick
You will be in court within 48 hours, weekends and holidays not included, but regardless, any amount paid to a bail agent is wasted money as the judge has the ability to let you out on your own word. Also, you may have an ICE hold, a probation detainer or parole hold, a warrant from another county/state that means you will not be released even if the bail is posted.
And remember, the people posting your bail will lose out on the 10% they pay as a fee even if the judge subsequently releases you on your own recognizance. If you do decide to bail out, make sure there are no holds first, and give them my name as having referred you, as many bail agents only charge 8% if it is a lawyer referral.
Don´t dismiss the services of a public defender before you´ve given them a chance if you qualify for one
And every person who is “in custody” automatically qualifies, at least for arraignment purposes.
Think of it as a free first opinion; they’re not all dump trucks, in fact, they´re often the most qualified attorney you will find. You can always hire a private attorney at a later date, but making the mistake of getting yourself a “street lawyer” at the earliest opportunity gives them the chance to be the used car salesman selling a car to you when you don´t have one and need to get to work.
Never choose an attorney out of fear or one who tells you that they can solve all your problems if you just pay them. The criminal justice system is just that, a system, and the public defenders are there everyday, know all of the players, and have no interest in selling you a car you don´t need. There are good and bad in every profession, but most of the public defenders I worked with got the same, if not better outcomes, than the “hired guns.” And the judges respected us.
Also, never hire a private attorney on a flat fee basis for a felony “through preliminary hearing only.” All that means is he/she may try to stuff a deal down your throat before the real work begins. A preliminary hearing is what we call a “rubber stamp” in most cases, it is only the stage where a judge reviews the police and prosecutor’s decision that probable cause existed to arrest you. No victim is required to testify, hearsay is admissible, and while it can be a good time to settle a case and in some cases an “affirmative defense” can be raised, any attorney who limits their representation to that stage is, in my opinion, suspect.