RESPONDING TO UNWANTED POLICE CONTACT - A CITIZEN’S GUIDE
By John O. Moeller, Esq. Davenport, Iowa
RESPONDING TO UNWANTED POLICE CONTACT - A CITIZEN’S GUIDE
By John O. Moeller, Esq. Davenport, Iowa
- KNOW YOUR RIGHTS
The Bill of Rights.
The Bill of Rights to the Constitution protects citizens from the government. Be familiar with the following amendments that help limit the conduct of government agents:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. If the police don’t have a warrant do not consent or be tricked into consenting to a search.
"…nor shall (any person) be compelled in any criminal case to be a witness against himself…" The Miranda warnings you should receive if questioned when detained or arrested are based upon the Fifth and Sixth Amendments. If you might be a suspect politely but firmly tell the police "I choose not to answer questions" and ask to talk privately with an attorney. You must assert your Fifth Amendment rights and request an attorney to help protect your rights.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury… to be confronted with the witnesses against him… and to have the assistance of counsel for his defense. You have the right to consult with an attorney, and to a court-appointed attorney if you can’t afford an attorney. Don’t talk with the police or consent to any searches unless you talk to an attorney.
The courts and legislatures have reduced the protections our founding fathers intended. Warrantless searches are often approved after the fact by a court if the circumstances fit an exception that allows a warrantless search. These exceptions are listed in more detail in Section III D, Warrantless Search. The requirement for Miranda warnings can be avoided by telling the suspect he is "not detained". Requests for a search warrant I consider general warrants are routinely approved by judges. The courts have made it almost impossible to successfully challenge a search warrant unless you can prove, without a hearing, that the police officers intentionally misrepresented material facts to the judge who issued the warrant. There are not many police officers so stupid or careless that they can be caught lying to a judge to obtain a warrant.
- PROTECT YOUR RIGHTS.
The police often try to avoid the need for Miranda warnings by telling you (or claiming to the judge) that you were not in custody or that you are free to leave. In custody or not, if you simply stay silent when questioned, your refusal to respond might be described and used against you at the trial. You need to tell the officer that you choose not to answer questions as allowed by the Fifth and Sixth Amendments and that you want an attorney present at all encounters with police or government agents. Tell the police that you will not waive or give up any of your constitutional rights unless an attorney is present and the attorney advises you to give up these rights. Do not consent to any search. Tell them you do not want the police or any government agents to contact you to question you or to request you to waive or give up your rights or consent to any search unless your attorney is notified in advance and is present. If possible, you or your attorney should give the police a written notice :
Assertion of Rights
I ___________________________ assert my Fourth, Fifth and Sixth Amendment Rights to remain silent and to have an attorney present at all of my interactions with the government or its agents. I will not waive any of my Constitutional rights except in the presence of and with the advice of my attorney. I do not want the government or its agents to contact me seeking to question me or to request that I give up any of my rights or to consent to any search unless my attorney is notified in advance and is present.
Attorney’s name and address and signature if an attorney employed.
Date: ______________________________ Time: _______________________a.m./p.m.
III. AUTHORITY TO ARREST, DETAIN OR SEARCH.
- Arrest with Warrant
When a police officer has a warrant approved by a judge you must submit peacefully to the arrest or search warrant. Tell the officer you choose not to answer any questions. Request an attorney. The police officer arresting you has the right to frisk you for weapons and to search the area in your immediate control for weapons incident to the arrest. An arrest warrant is not a search warrant but the police will look around the area, supposedly as a protective sweep for persons. If they claim they also have a search warrant ask if you can see it. Don’t resist the search. Don’t answer questions like, "where are the drugs"? Police use surprise to trick you into making harmful statements. Do not give consent to the search of your home, vehicle, cell phone or personal effects. Don’t give passwords, combinations or unlock codes to police.
The officer making the arrest according to a warrant might know nothing about the case and might not have any interest in talking to you. Identify yourself unless providing your name, address or other routine booking information will incriminate you. Cooperate with the routine jail booking process. In Iowa, you have a right to call your family and an attorney when you reach the place of detention. See Chapter 804.20, The Code of Iowa. Call your family, your attorney and a bondsman. Remember the phone call might be recorded or someone might listen to your call. Do not discuss the facts . If a detective familiar with the case is making the arrest or comes to talk to you at the jail answer no questions without an attorney present. Tell the officer you choose not to answer questions and that you want an attorney as allowed by the 5th and 6th Amendments.
- Warrantless Arrest
When a police officer does not have an arrest warrant then generally the officer can make an arrest for a public offense committed or attempted in the officer’s presence or when an offense has been committed, and the police officer has reasonable grounds for believing that the person to be arrested has committed it. An arrest without a warrant generally must occur shortly after the offense. If the person to be arrested is no longer at the scene or fleeing the scene of the crime the officer is generally required to obtain an arrest warrant before making an arrest. The officer is supposed to tell you that you are under arrest and the charge. You may not resist arrest even if the arrest is illegal. Don’t answer questions. Tell the officer you choose not to answer questions. Ask for an attorney. Do not "consent" to any search. Ask to make phone calls to your family and attorney when you arrive at the place of detention.
- Search Warrants.
If the officer has a search warrant, you must submit peacefully to the search. The police are supposed to knock and announce that they have a warrant. Don’t expect a loud knock or a loud announcement. The police are very eager to obtain entry and will break the door down seconds after the knock and announce. If you have the chance ask to see the warrant – slipped under the door or held up to a window. If you open the door, they will enter immediately. To enter without announcement the police are supposed to get permission from the judge for a "no knock" warrant but as a practical matter, they break the door down and execute no knock warrants by knocking and announcing in a fashion not intended to alert the occupants to the officer’s presence.
Unfortunately, many judges approve warrants that allow the police to search for anything they might find. If the warrant is limited to a search for a stolen car, then politely object when they look into the kitchen cupboard. Once the police get to the location they will claim they saw in "plain view" anything else they find by accident or design. It is amazing how often a photo or document is displayed on the computer screen when the police are executing a warrant.
The police will sometimes act like nice guys who know you have drugs, and they don’t want to trash your house so just tell them where the drugs are, help them open the safe or give them the passwords to unlock your phone, computer or e-mail account. The police have some ability to detain you during the execution of the search warrant. Expect to be made to sit on a couch while the search is occurring. Occasionally people are handcuffed and beat up. Hope that the local SWAT team is not invited to show off during the execution of the warrant. Do not let the police expand the search with your consent or give them passwords to your phone, computer or internet accounts. The search warrant cannot require you to answer questions. Assert your 5th and 6th Amendment rights even if the police have a lawful search warrant.
- Warrantless Search.
When the police do not have a search warrant they will try to obtain your "consent" to search. I am amazed how many people "consent" to search, knowing the search will obtain evidence of a crime. Often this "consent" is tricked or in response to commands, show of force or claim of authority. When the officer says, "I need to" pat you down, search your car, look at your cell phone – politely decline the request. Otherwise, the officer will say you consented to whatever he "needed" to do. If the police claim they will get a warrant do not assume the officer can or will request or obtain a warrant. Don’t consent. Require a warrant.
If the police do not obtain your consent to search they might still be able to search without a warrant if they prove an accepted legal reason exists that excuses the need for a warrant. Claims of "exigent circumstances," "plain view," "search incident to arrest", "impounded vehicle inventory", "abandoned property" and "officer safety" are often used when "consent" is not coerced. If the police stop you while operating a motor vehicle on the highway, there is a "motor vehicle exception" that allows a search without a warrant if the officer has probable cause to believe a crime has been committed. Usually, this requires a crime other than the traffic offense that justified the original stop. Different standards are applied for "administrative searches" of businesses and searches at schools, public arenas, airports and the border. Claims that there was no reasonable expectation of privacy and other strategies are used to avoid the search warrant requirements. If you do not give the officers consent to search you may be able to suppress the evidence if the government cannot prove the warrantless search fits properly within one of the recognized exceptions. If you consent you gave up that possible challenge.
- UNWANTED POLICE CONTACT EXAMPLES
- Stop and Identify.
Can a police officer require that you identify yourself verbally or produce an ID? If you are driving a car on a public highway or trying to board a commercial airplane, then you must produce identification. Non-citizens are required to produce immigration documents when requested. What if you are a passenger in an automobile, sitting on a park bench or walking on the sidewalk? Some states have "stop and identify" laws. The Supreme Court of the United States has considered the legality of an officer’s demand for identification. Iowa does not have a "stop and identify" statute. A police officer, like any other person, can approach you and ask questions. Unless the police officer observes suspicious circumstances that justify an investigatory stop or detention (a "Terry Stop") you are not required to respond to the officer or remain in the officer’s presence. If you are a suspect you should state, "I choose not to answer questions" and ask "am I free to leave." If you are, calmly leave. If the officer says you are not free to leave, ask "why"? "What crime am I suspected of"? Then ask to leave again.
If the officer can legally justify to a court conducting an investigatory stop, detention or frisk for weapons, the court may allow the officer to detain you and request you identify yourself. If identifying yourself may incriminate yourself you probably have a right to refuse to identify yourself. Identifying yourself is usually just verbally stating your name. You rarely have to produce identification or state your date of birth or produce an ID or license. Remember that officers are trained to imagine circumstances to continue to detain and investigate. Whether identifying yourself or producing identification will end the officer’s detention and investigation is a difficult judgment call. My recommendation is to give the officer as little information as possible. Tell the officer you choose not to answer questions. Continue to ask if you may leave. Continue to ask for an explanation why you are not free to leave. Stop the verbal and physical encounter as soon as possible. The longer you engage in this cat and mouse game with the officer the more likely it is you will end up in jail. See the case Hiibel v. Nevada, 542 U.S. 177 (2004) for an interesting and readable opinion about this topic. A similar Iowa Supreme Court case is State v. Smith, 683 N.W.2d 542 (Iowa 2004).
- Detention for Investigation - Are you free to leave?
An officer can approach you in a public place just like any other person and ask your name, what are you doing, where you were going or whether you have any weapons, drugs or money. An officer can ask these questions without a warrant and having no reason to suspect, detain or arrest you. You are not required to talk with the officer any more than you must talk with a stranger on the street. The legal issue presented is whether the officer has valid articulable reasons to make an investigatory stop (a "Terry Stop") to detain you to question, frisk or demand identification. Answers are not required but failure to explain whatever circumstances "justify" the Terry stop might allow continued detention leading to an arrest. How you respond to this contact may determine if you are arrested or if there is sufficient evidence to convict you. A simple traffic citation can turn into a drunk-driving offense or a search for controlled substances. A stop and frisk might lead to drug or weapons charge. The officer is trained to look for and ask questions to obtain incriminating statements and evidence. The officer will try to obtain your "consent" to search your person, cell phone, automobile or even your home. Be cautious. Officers are trained to trick you into "consenting" to a search. Expect no question "may I search your home, car, cell phone, purse or belongings." The officer will state, in a commanding voice, "I need to" or "I have to" frisk you, search you, search your home, etc., and then end the sentence with "okay" or "do you mind?" If you answer "yes" or "no" your answer is not clear, and the officer will tell the judge that either "yes" or "no" was a consent to search. Opening the door to your home or hotel room after the officer knocks and yells "police, open up" will be claimed by the officer to be permission, an invitation to enter your home. Opening the door to the hotel custodian or delivery driver will be the excuse for the police outside your view to step inside and claim you invited them by opening the door. Do not even open the door. Talk through the door. State that you are not consenting to any search without a warrant and not answering any question without a lawyer.
- Vehicle Check Points.
I saw a video of a driver at a check point who had his driver’s license, vehicle registration and insurance card in a baggie with a note "I choose not to answer any questions." "Am I free to go?" He placed the baggie tied with a string outside the window of his car and rolled the window up as he approached the check point. Now the officer cannot claim he smelled an odor of alcohol or that the driver’s speech is slurred. The officer looked through the documents and the note and waived him through the check point. As a practical matter, you are probably not going to be this prepared for a check point, but I recommend the same approach. Open the window just enough to hand your license, registration and insurance card to the officer. Tell the officer you choose not to answer questions. Tell your passengers not to answer questions. Ask if you may go. If not, ask what crime you are suspected of and why. Try to make the officer state his reasons. Request your release. Do not answer questions. Do not consent to search.
- Expanding or Extending The Stop.
Officers are trained to "expand" or "extend" a routine traffic stop or encounter into a search or investigation for drugs or evidence of other crimes. After the ticket is issued anticipate questions from the officer "Do you have any drugs, weapons or large amounts of currency?" Where are you going? Where have you been? Expect the officer to ask, "Do you mind if I search?" What does it mean if you respond, "No"? No, you don’t mind, or no, don’t search? You must say, I object to any search or continued detention. Am I free to leave? If not, ask why. If you aren’t free to leave, then tell the officer you choose not to answer any questions and ask to speak to a lawyer.
- Knock and Talk.
It is now a customary police practice for an officer to show up at your home or hotel room unannounced for a "knock and talk." The officer does not have a warrant or even probable cause to conduct a search or require you to open the door. Don’t open the door. Tell them you choose not to answer questions. Don’t believe the claim they need to talk to you about an accident to your car or other ruse. Tell them to contact your lawyer if they want to talk to you.
- Request to Come to the Station.
The police might request in person or by phone that you to come to the station to talk about some vaguely described incident, perhaps an accident or someone else. They might "offer" to take you in the squad car. You are not required to go meet with a police officer or any government agent unless you have received a subpoena from a court. Insist on a clear explanation who you are meeting and the purpose of the meeting. If you might be a suspect, then tell them you choose not to answer questions and contact an attorney and have the attorney contact the officer. Do not go to the station.
- NEVER TALK WITH THE POLICE IF YOU ARE A SUSPECT WITHOUT AN ATTORNEY.
If you are a suspect or person of interest, the police are talking to you to see whether you will admit something to justify detaining or arresting you. You will most likely be making the case against yourself. If they had enough evidence to arrest you, they probably won’t waste time talking to you. Talking to the police may make the difference whether or not you are arrested or if there is enough evidence to convict you. As a practical matter, you will not talk your way out of an arrest. They won’t believe you. Your "denial" will likely be used against you at the trial. Police are experts at pretending to have fingerprints, DNA, witnesses and other evidence that probably does not even exist to trick and trap you. They are investigators trained to use psychological coercive methods to obtain harmful statements. They get innocent people to make confessions and harmful statements. You are just another experiment to see if they can get you to confess or at least make harmful admissions. The police will isolate you and then use minimization or maximization interrogation techniques to coerce a harmful admission from you. Expect either the minimization approach - "it is no big deal, just tell us you sexually touched the child, everyone does it" or the maximization approach -"you are going to the prison for a long time unless you confess."
If you are guilty and prepared to admit it, you should not talk to the police until your lawyer negotiates a plea agreement. Save your confession as part of the plea bargain. If you are innocent, then wait to explain the circumstances to a jury or judge. You will not change the police officer’s mind you are guilty.
An officer who thinks he has a certain case against you might question you to obtain evidence of other crimes by you or by other persons. If this assists you, and you want to cooperate it should be done at a later date with the assistance from an attorney and a clear agreement of the prosecutor. What you think is "cooperation" the police will claim is a confession. Do not think that you can negotiate a get out of jail pass with the officer. The prosecutor has authority and discretion concerning prosecution of criminal matters. A police officer has little discretion concerning the arrest or case outcome unless approved by the prosecutor. The officer cannot make a plea arrangement. If the prosecuting attorney does not agree, then whatever arrangement, you think you made with the police officer will not be honored. Police officers are also good at making promises that are not meaningful. For example, the standard "promise" that it "will go better for you" if you tell the truth or cooperate. What does that mean? Whatever it means; it is not an enforceable plea bargain.
If you are a suspect, you should never attempt any explanation or statement to the officer. You should never consent verbally or in writing to any search of your person, cell phone, auto or property. Don’t give passwords, codes or combinations to the officer. I don’t care if the officer seems like is a nice guy or you think he will let you go. Tell the officer you choose not to make any statement or answer questions as allowed by the 5th Amendment. Tell them you want to consult with an attorney before making any statements or consenting to any search.
How you respond to the initial police contact might determine whether you are arrested or whether there is enough legally obtained evidence to convict you. This initial and usually unexpected contact is a critical stage, and the police officer has the advantage. Any statement you make, even your complete denial, will be used against you. Making a false statement to police might cause your prosecution in some states. There is never a requirement you answer any question from a police officer.
- AFTER AN ARREST.
Unless you were fortunate enough to be issued a citation to appear, you will be taken to jail. Iowa law requires the police allow a reasonable number of phone calls to contact an attorney and your family once you are taken to the place of detention. See Chapter 804.20, The Code of Iowa. You aren’t allowed to make phone calls at the place of initial contact but occasionally the officer will allow you to make calls. If you were arrested pursuant to a warrant, the warrant will specify the terms of release. If you are arrested without a warrant, there is a schedule of bond amounts assigned based upon the most serious charge. There will not be a bond set for domestic abuse until you see the judge for your initial appearance. It is possible in Iowa to arrange for a bonding company to post a bond on your behalf unless the warrant specifies cash only. If a bond is $10,000.00, cash or surety bond, your release from jail will occur when you post $10,000.00 cash or arrange a bonding company to post a $10,000.00 bond on your behalf. The bonding company will charge a ten percent fee as a service fee for posting the bail bond and the company will require signatures of persons and perhaps real estate to be pledged as security, depending on the size of the bond, your prior record and your ties with the community. If you do not post bond, then you will have an appearance before a judge for an initial appearance. This usually occurs the following morning in most Iowa communities.
VII. RECORDING THE ENCOUNTER.
Many conversations with uniformed officers are recorded by the squad video. This is why it is so important to ask, "Am I detained, what crime do you suspect me of, am I free to leave and telling the officer you choose not to answer any questions. The recording can help you in court. Officers love to record you when it suits their purpose. They dislike having anyone else make a video or audio record of their behavior. Make your own recording if you can. There are smart phone apps that allow you to make a video recording without displaying on the screen that the recording is occurring. I do not believe that any uniformed police officer performing his or her duties in a public place or in your home or place of business can legally object to or prevent your right to record that officer. Be cautious that you do not make any threatening remarks or gestures or approach the officer’s interaction with another person, or you will be threatened with arrest for interfering with official acts. Review the website www.CopBlock.org for examples and information.
VIII. PRESERVING EVIDENCE AGAINST YOURSELF.
The spy agencies of several governments in the world record and monitor virtually every electronic communication anywhere in the world. Google and AOL directly cooperate with law enforcement to scan every e-mail and attachment to detect Internet pornography, and who knows what else, and they report to law enforcement and quasi government agencies such as the National Center for Missing and Exploited Children. NSA and the cell phone companies keep records for varying lengths of time concerning every subscriber and transmission. The police have devices that pretend to be cell phone towers that can communicate with your cell phone and trick it into revealing information. As consumers we have paid for a 911 system, the primarily purpose is to track your phone for the government and advertisers. It is a secondary purpose to be a 911 emergency system for your possible benefit. Cameras are along the highways and perhaps at the entrance to the local gun show to record every vehicle license plate. Yes, big brother is watching you. Your ability to avoid this constant surveillance is limited. So why make the situation worse by using e-mail and text messages to arrange and discuss criminal activities? Even if your phone and computer are encrypted and set to self-destruct that doesn’t mean the other party to the conversation will protect your information. If you will engage in criminal conduct don’t make a permanent record of your criminal activities.
Unwanted contact with police presents complicated legal issues. The practical advice is politely tell the officer you choose not to answer questions and inquire if you may leave. Leave calmly if you can. If the officer says that you are detained or arrested you are not free to leave or resist arrest, and the officer should advise you of your Miranda Rights before further questioning. That warning should be obeyed – shut up. If the officer tells you you are detained or under arrest ask for what reason or crime. Tell the officer you choose not to answer questions. Ask again to leave in a calm and polite fashion. Many officers and squads have audio-video recording systems, and it will be helpful to have a recording of the officer’s on the scene real time statements to you rather than his after the fact explanations and justifications in court.
Until you are detained there is no requirement that the officer give you Miranda warnings. Not all police contact with you is a seizure within the meaning of the 4th Amendment. The courts routinely decide that a law enforcement officer does not violate the 4th Amendment by merely approaching someone and asking if the person will answer some questions or produce identification. Supposedly, you may decline to answer and free to walk away. Until there is detention or restriction of freedom to depart a 4th Amendment seizure has not occurred and Miranda warnings not required.
Even when an officer has no basis to suspect a crime has been committed the officer may approach and ask, invariably in a commanding tone of voice, questions, for your identification and for your consent to search. They will claim they did not induce cooperation by coercive means and a court probably will not find that coercion was used. The police officer will testify that he politely requested consent or asked questions, and that he did nothing to threaten, trick or detain you. Ask, "Am I under arrest?" "Am I detained?" "Am I free to leave?" If the officer says you may leave, then leave. Don’t run or that will be the excuse to claim you were behaving suspiciously.
John O. Moeller was graduated from the University Of Iowa College Of Law with distinction and admitted to the Iowa bar in 1979. He is also admitted to practice in the Federal District Courts in Iowa and the Central District of Illinois, the Federal Courts of Appeal for the Seventh Circuit (Chicago) and Eighth Circuit (St. Louis and St. Paul) and the Supreme Court of the United States. He has practiced in Davenport, Iowa since 1979, representing clients in civil and criminal litigation and appeals in state and federal courts in cases ranging from arson, drug, murder and money laundering to wrongful-death product liability cases.
Explanation and Disclaimer.
The guide is prepared to provide general advice how to protect your rights during unwanted police contact. Furnishing this guide creates no attorney-client relationship. The information provided should not be considered as legal advice how to proceed in a particular case. The decision how to proceed in a case can only be determined after a careful review of the facts and the law with a competent lawyer.
Prepared March 2015
Attorney John O. Moeller
601 Brady Street, Ste. 303
Davenport, Iowa 52803