In most criminal cases the most detrimental piece of evidence against a defendant is a voluntary statement or something found through a consent search.
Being courteous or polite is not the same thing as being cooperative. Treating police officers with respect can keep your encounter from escalating and is your best defense against possible mistreatment or a prolonged encounter. By yelling, arguing, expressing distrust or disrespect, or acting aggressive, you are merely heightening police suspicions, situational tension, and the officer’s desire to hem you up. Speak calmly, display your open hands, avoid aggressive postures, and use respectful language like “Officer”, “Sir”, and “Ma’am.” In short, mind your manners. None of this means that you must agree to speak or offer information.
If the police have approached you aggressively, with guns drawn and shouting commands, accept that you will likely be arrested, follow their commands, do not offer information, and demand a lawyer. Your first priority should be your safety; you can fight the charges or police mistreatment in court later.
If you are unsure if you are free to leave, ask if you are free to leave. If you are free to leave, then leave. If you are in handcuffs, you are not free to leave.
Police are permitted to gather identifying information, and it is one of the only things you are to provide police without a warrant. Offer your license or provide your real name and possibly your address. Providing false information almost never works and will result in additional charges and guarantee arrest. Beyond this identifying information, you are not required to provide anything else. Your right to remain silent extends to all other requested information in most jurisdictions. You are not required to provide information such as where you are coming from or heading to, but choosing to do so or not is a judgment call on your part that depends on your level of concern. Declining to answer such questions is your right, but will likely result in the police giving you a more difficult time and extending the encounter.
Start with the assumption that you can not talk your way out of an arrest. Many people cooperate with the police because they believe it is their best chance of avoiding a ride in a police car. Not only is this wrong, police know that you want to avoid arrest and use that desire to encourage cooperation with false promises in order to gather incriminating information. If police are speaking with you regarding an accusation, they have almost always already decided whether to arrest you. Talking will only make things worse for you, with very few exceptions. Whether to speak to the police is always your decision, but you should always remember that silence is your right and your friend.
Police are not required to read your rights to you until they are arresting you, meaning you are no longer free to leave. Everything you tell them prior to that time is considered voluntary and almost impossible for an attorney to later suppress in court, and everything you say after waiving your rights will be used against you unless and until you demand an attorney and stop talking.
If the police do read you your rights, they will tell you that “anything you say can and will be used AGAINST you.” You should understand that to mean that you can not help yourself by talking, even though police will tell you that you can help yourself or that they are merely trying to “help you out” by “clearing this up” so that you can “go about your business” once you’ve spoken with them. Many people speak to police because they think that the police will tell them what is going on or what the issue is or who may be accusing them of what. This is not a good reason to engage in conversation with police who suspect you of a crime. Police are allowed to lie to you during interviews or interrogations, so any information that you get from them will be untrustworthy anyway. This dishonesty is called “interview techniques.” Police can lie about every aspect of your situation, including (1) who your accusers are, (2) that they have you committing a crime on video even though they don’t, (3) that they found your fingerprints or DNA at a crime scene even though they didn’t, (4) that they have eyewitnesses who don’t exist, and on and on. However, if you give information that police believe is false, or that doesn’t match what someone else has said for any reason, or if you accidentally misremember something (like where you were at 6pm on last Tuesday), this will all be used as evidence of your dishonesty and guilt, even if you were truly trying your best to give honest information. Things said in such statements often lead to additional charges as well like False Statements to Police.
It is not easy or common for an attorney to find grounds to suppress a person’s statements to police, but it is easy for you to refuse to make that statement to begin with.
Police will often ask for permission to search your person, your car, your home, or your personal effects like purses and backpacks. Police may also ask your permission to perform scientific tests on you or your items. NEVER consent to such searches no matter how innocent you are or how certain you are that they will not find anything. It is your right to decline these searches, and when you agree to allow such a search you are waiving your rights. It is nearly impossible for an attorney to challenge a search that is based on consent. If you give police permission to search your vehicle, unaware that a passenger left contraband in your vehicle, you will have no recourse to challenge the basis of the search. Make police get a warrant or make their own decisions on how to proceed with a search. This puts the burden on the police to later prove the validity of their search in court. You can decline any and all searches politely but firmly.
You should demand to contact a lawyer early and often if you are being questioned by police. You must make this demand clearly and firmly. Saying “I think I may need to speak with an attorney” is not good enough. Keep it simple: “I want a lawyer.” Once you have demanded an attorney, police are not allowed to speak with you. If they attempt to speak with you, simply restate your demand: “I want a lawyer.” You must not volunteer to speak to them after making a demand for a lawyer. If you later say, “Hey officer, let me ask you a question” you may have just waived your demand for a lawyer, at which point police can begin to try to convince you to “just talk to us to clear a few things up so we can cut you loose.”
Even if you want to speak with the police, demand a lawyer first. Having a lawyer present can help you make sure that your story does not get misinterpreted and that you don’t get tied up by confusing or misleading questions. Police are also less likely to engage in especially tricky tactics with a good attorney in the room.
Above all, remember that the goal is not to avoid arrest because that is a police decision that you can not control. The goal is to prevent causing harm to your side of the case so that your attorney can give you your best fighting chance in court.
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