Dear ryananderson-ga;
Ok. Let us embark on this project and see if we can work toward
shedding some light on the REALITIES with regard to your questions.
Keep in mind that this is not intended to be legal advice or to
replace the advice of a licensed attorney in any jurisdiction.
First let me state for the record that I am going to speak generally
as much as possible, taking into account the fact that situations tend
to vary from one jurisdiction to another.
Secondly, I must assume that you want to the TRUTH as opposed to the
various OPINIONS related to the subjects so with that in mind I am
providing honest and unbiased answers and intentionally avoiding the
more paranoid leanings (which are abundantly available on the internet
and elsewhere) as sources for information.
Thirdly, let me restate for the record that it is impossible to gauge
every potential situation likely to occur. It is important to be able
to establish a point at which we can eventually close this question
(rather than have a never ending exchange). Bearing this necessity in
mind, where possible I have tried to stay within the parameters of the
specific hypothetical situations you described or offered by own
hypothetical situations where necessary.
Finally, it is important to note that there are many ways to do
something right. It is impractical to believe that we can cover them
all, just as we cannot cover all the potentially wrong choices in any
given situation. In each situation I have endeavored to give you a
method of ?doing the right things? but there may very well be others
that I am not able to describe fully in the time that we have.
Let us start at the beginning:
MIRANDA RIGHTS (sometimes called MORANDA WARNING)
Here is the brief story behind the Miranda Warning:
?In 1963, Ernesto Miranda was arrested for robbery, kidnapping, and
rape. He was interrogated by police and confessed. At trial,
prosecutors offered only his confession as evidence and he was
convicted. The Supreme Court ruled (Miranda v. Arizona 384 US 436 June
13, 1966) that Miranda was intimidated by the interrogation and that
he understood neither his right not to incriminate himself nor his
right to have counsel.?
WIKIPEDIA
http://en.wikipedia.org/wiki/Miranda_Warning
It should be noted ?The Supreme Court did not specify the exact
wording to be used when reading a suspect's rights. However, they did
set down a set of guidelines which must be followed. The ruling
states:
"...The person in custody must, prior to interrogation, be clearly
informed that he has the right to remain silent, and that anything he
says will be used against him in court; he must be clearly informed
that he has the right to consult with a lawyer and to have the lawyer
with him during interrogation, and that, if he is indigent, a lawyer
will be appointed to represent him."
WIKIPEDIA
http://en.wikipedia.org/wiki/Miranda_Warning
Miranda v. Arizona 384 US 436 June 13, 1966
http://en.wikipedia.org/wiki/Miranda_v._Arizona
Having said that, the general Miranda Warning goes something like this:
You have the right to remain silent.
Anything you say can and will be used against you in a court of law.
You have the right to have an attorney present during questioning. If
you cannot afford an attorney, one will be appointed for you at no
cost to you.
If you decide to answer questions now without an attorney present, you
have the right to stop answering at any time.
Do you understand these rights as I have explained them to you?
. . . . . . . . .
Now, Terry v. Ohio (sometimes called the ?stop and frisk? decision) is
outlined here:
John W. TERRY v. STATE OF OHIO 392 U.S. 1, 88 S.Ct. 1968
http://www.soc.umn.edu/~samaha/cases/terry%20v%20ohio.html
I recommend you familiarize yourself with this decision in order to
gain some insight into ?pat downs?, ?frisking? and ?investigative
stops?.
. . . . . . . . .
I am going to get to your first question in a moment so please bear
with me. I think this is important to discuss first however:
As a human being, a police officer is just like anyone else in the
world. He has a home, hobbies, a family, likes, dislikes, and things
that push his buttons. He gets up in the morning, pets his dog, kisses
his wife and kids, puts on his pants one leg at a time and ventures
off to his job. By the same token some officers are sensitive, and
some are not. Some are sympathetic and some are not. And yes, just
like the butchers and bakers and candlestick makers of the world, some
police officers are intelligent and some are just plain dumb. Some
have a sense of humor and a greater level of tolerance and some are
much more serious and more easily irritated. Law enforcement, as a
profession, is the same microcosm of the world as any other profession
except in one unique sense that makes it different from most others ?
law enforcement is not just a job, IT IS A CHOSEN LIFESTYLE. Officers
have lost the innocence of ignorance enjoyed by the majority of the
world by virtue of witnessing the worst that life has to offer. Once
this innocence is lost there?s no turning back; no regaining it. By
sworn oath, law enforcement officers are truly devoted to helping
PEOPLE, to preserving the peace and to upholding the law. For the most
part, they are defenders of right, guardians of those who cannot
protect themselves and the last line of defense should they be called
upon. We take this creed so seriously that nothing ? and I mean
NOTHING ? stands in our way to fulfill our destiny.
Because of the nature of the profession, law enforcement officers
often become suspicious of everything they see and hear. This
suspicion is a tool that develops over time and through experience,
and allows the officer to react instinctively to life threatening
situations (Yes, sometimes even over-react). Ironically, once the
capability is acquired (as police officer?s spouses will attest) there
is no way to turn it off completely, therefore the suspicion carries
over into their private lives as well. The officer literally BECOMES a
suspicious person himself and as such, tends to gravitate only toward
those with whom he shares this common bond ? other police officers.
Why do I mention all this? Simple, because police officers are an
exception to the social rule. To non-police officers they might seem
odd, indifferent, aloof, or just plain weird. Even to their (few)
non-law enforcement friends or even family members they can seem hard
to communicate with. It is understandable then that someone who had a
chance meeting with an officer in a professional capacity might be
intimidated.
I also want to say this before we begin in earnest; law enforcement
officers are undoubtedly the bravest human beings in American society
today, but bravery is NEVER indicative of a lack of fear. One must put
his obligations into perspective and understand that, unlike the
butcher, baker and candlestick maker, EVERY SINGLE DAY an officer is
faced with real, life threatening fear, even of that fear is unfounded
or unsubstantiated. Is he shot at every day? No. Does he face a
deranged axe murderer every single day? No, certainly not. But the
officer must condition himself to react instinctively to every
potential threat, and to him every person, car, corner, and situation
HAS that potential. In his mind he understands that there are no ?time
outs?, ?do-overs? and ?second chances?. Dead is dead, and like
everyone else, he desperately wants to get back home at the end of the
day in one piece, walking under his own power, to hug his children,
kiss his wife, pet his dog knowing that though his suspicion he?s
bought himself one more day so tomorrow and do it all again.
Why do they do this? Who knows? Love for their fellow man? A
professional ?calling?? A genetic predisposition to defend the
underdog? A glutton for punishment? The truth is no one really knows
why these people are compelled to become insufficiently paid,
life-risking defenders, but clearly, at some point, they drop out of
the ?normal? marching line of society and move toward the small circle
of likeminded individuals who take on this task, and by all accounts
it?s a good thing for all of us that they do.
. . . . . . . . .
So let?s get started:
?How must one communicate with a law enforcement officer??
In short, the best way to communicate with an officer is to BE POLITE.
Self-discipline will go a long, long way to your benefit, especially
in those first few nervous minutes of the confrontation/conversation.
The officer is already suspicious by nature and training and obviously
suspicious of YOU in particular or he wouldn?t have stopped you in the
first place, so he will be on a high state of alert for anything that
might confirm his suspicions about you or the situation. The officer
is very focused at this point and any misstatements, gestures,
inconsistencies or inflection you might offer can easily sway his
opinion of the seriousness of the situation.
. . . . . . . . .
?Being stopped by a law enforcement agent in the middle of the night?
Be polite and accommodating. Even if you ?did? do something wrong I
can tell you from experience that I have been much more willing to
work with people in the past because of their polite attitude (many,
many times) and admittedly less concerned about the impact an arrest
would have on them when their attitude toward me was poor. If you have
broken the law and an officer has reason to pull you over, what is to
be gained by compounding the situation by rebuking him, being
disrespectful, or fighting the inevitable? The officer behind the
badge is just a man. But the respect you show for the officer is
directly commensurate with your level of respect for the law he
represents. It?s as simple as that - and believe me, he ?knows? this
and will initially judge you by it. Keep in mind too that the officer
does not have x-ray vision or superhuman capabilities. It?s late, it?s
dark and he?s going to be extremely defensive minded in his readiness
to respond to any perceived threat. Quick movements or unnecessary
gestures are NOT a good idea. Keep your hands on the top of the
steering wheel unless he asks you to move them. The officer will
approach you out of convenient view for obvious reasons. Don?t try and
turn around or adjust your mirrors at this point to get a better look
at him. He will reveal himself better to you once he is convinced
there is no imminent threat.
. . . . . . . . .
?Being searched?
If an officer has approached you with the intention of searching you,
chances are he has the legal right to do so. If you resist being
physically searched you will likely be hurt. Whether the officer has
the authority to search your or not can be debated after the fact. If
his search is illegal then anything he finds can theoretically be
suppressed in court. However, the fact remains that right or wrong,
you don?t want to get injured over it. There?s nothing wrong with
verbally (yet politely) protesting while submitting to a search (?Will
you explain why are you searching me??, ?I didn?t do anything that
requires you to search me?, ?Sir, I don?t believe you have the legal
right to search me?, ?What you are doing isn?t legal.? ? you should be
right though when you accuse him of this last one). My best advice is
to submit to the search rather than risk a much worse chain of events.
If you?ve done nothing wrong you have little to worry about other than
the principle of the thing. This can always be addressed later as a
complaint or a lawsuit.
. . . . . . . . .
?Asked to open the door without arrest warrant?
If you are talking about a car, you probably have no legal choice.
Terry v. Ohio clearly establishes the authority for such a request
provided the circumstances warrant it. On the other hand, if you are
talking about your house, you simply don?t have to if you don?t want
to. You can politely refuse in most situations. You can stand behind
your screen door and ask them why there are making the request and
what their business is with you. But you don?t have to invite them in.
. . . . . . . . .
?Being pulled over?
By all means, comply with it, no matter what the circumstances are.
You have no idea why you are being stopped, who the police believe you
may be, or what they think you might have done. If you refuse to stop
you risk serious personal injury as well as damage to your car. As I
mentioned above, be polite and accommodating. There?s nothing wrong
with asking questions. If an officer has probable cause to search your
car he?ll do it whether you want him to or not. If he ASKS you for
permission to search your car it?s because he has no probable cause to
search it WITHOUT your permission. You can politely refuse if you are
asked. Keep in mind that if you do allow him to search your car, you
can rescind that permission and make him stop at any time, or,
alternatively you can say, ?Sure, you can search everything except my
trunk? and the officer will be bound my this legal restriction.
Will this raise his suspicions? Yep.
Will he ask questions about the trunk? I?d say the likelihood of that is great.
Do you have to answer him? No. You ?could? simply say, ?I have
personal belonging in the trunk that I?d prefer you didn?t mess with.?
What will he do if I do this? He might summon a drug dog to sniff your
trunk, which he can legally do in many situations. Such a cursory
search of the vehicle?s exterior has been held to be legal in many
cases. If the dog alerts on the trunk this may establish probable
cause and your trunk may end up being searched anyway. If there is not
drug dog in that jurisdiction, then obviously the officer may just
have to respect your right to preclude him from searching certain
parts of your car.
If the officer wants to see various documents (ID, license, insurance,
etc) show it to him. If it?s in your glove compartment say ?Can I open
my glove compartment??. Let him know you are going to do it before
hand. Don?t just lean over and grab the glove compartment door.
There is nothing wrong with asking the officer "Are you detaining me?
Am I free to leave?"
. . . . . . . . .
?Questioned as a suspect?
Again, being polite and respectful will work toward your benefit. If
you are being questioned you don?t HAVE to say anything at all. You
can literally remain silent or you can simply say, ?I have nothing to
say?. If you are told you might be arrested (and you still don?t want
to talk) you can, within your rights, request a lawyer if you are
going to be arrested and questioned. Even if you?ve done nothing wrong
you still don?t have to answer any questions. However, it would seem
quite an imposition to exercise your right to remain silent just for
the sake of doing it when cooperating would have better results.
. . . . . . . . .
?How can you respond properly and utilize your rights??
i.e ?trying to get into someone's house without a warrant.?
?How can you respond properly and utilize your rights?? Simply say no,
that you don?t want to let them in. There?s nothing wrong with this.
Again, if they ask your permission it?s because they can?t do it
otherwise. You have the right to decline if you are asked and if you
do give permission you can rescind that permission at any time or
restrict your permission to certain rooms, drawers, closets, or other
locations as you see fit.
If the police have enough probable cause to search your home you can
bet that they would have obtained a warrant first. If you decline
their request, they may come back with a warrant, they may not. Again,
your attitude can make a difference.
. . . . . . . . .
?The officer is suspicious, and asks you to empty your pockets.
Without a reasonable explanation, they cannot search you, and you have
the right to refuse to empty your pockets (which will probably lead to
you being detained, but nevertheless, only THEN can they search you)?
There are far too many variables to answer this one definitively. The
best I can say here is that you CAN say no. Whether or not this
results in your detention or arrest remains to be seen depending on
the situation. If the officer is in fear of his life you will be
searched. Maybe not to the extent that he goes into your pockets, but
if you refuse you may find yourself face down on the ground while he
methodically feels of everything on your person through your clothing.
If the officer feels something that gives him reason to believe it is
a weapon, he WILL go into your pockets. If he feels something while
searching for weapons that gives him the impression it is contraband,
he MIGHT go into your clothing to retrieve it. Whether you are
actually convicted of possessing it or not would be for a court to
decide based in the legality of the search, but the fact remains that
you may go to jail and face some real imposition because of it before
the court gets around to hearing the case.
There is no trickery involved here but the way it is presented can be
used to obtain consent. If an officer says ?Will you empty your
pockets for me?? and you do it, you have consented to his examination
of the contents of your pockets. If you refuse to empty our pockets
and he moves to search you, it is not a wise to resist. He may be
doing something illegal, but that doesn?t mean you should do something
illegal too. ?Failure to submit to arrest?, a lesser form of resisting
arrest, is a crime in many jurisdictions and your refusal to comply
might be mistaken for a refusal to submit.
. . . . . . . . .
??rights in terms of when you speak/communicate/come in contact with an officer.?
Once again, you don?t HAVE to speak AT ALL.
You don?t HAVE to incriminate yourself.
You don?t HAVE to confess.
You don?t HAVE to verbally cooperate.
You don?t HAVE to answer questions.
You don?t HAVE give the officer other people?s names, number or addresses.
You don?t HAVE say where you are going or where you came from.
. . . . . . . . .
?What if anything you must or must never do when confronted by a detective??
A detective has no more legal authority that a patrol officer. The
same applies to one as applies to the other.
. . . . . . . . .
?Confronted: Either asked as a witness, contacted as a suspect or
confronted as a criminal.?
As a potential witness, if you want to cooperate, by all means do so.
Be polite, answer questions, and offer information where applicable.
If you witnessed an incident and do not wish to cooperate, don?t. You
don?t have to. You can simply refuse to speak about it. No one can
legally force you to talk if you don?t want to.
As a suspect (see above ??rights in terms of when you
speak/communicate/come in contact with an officer.?) you don?t have to
cooperate if you don?t want to. If you do choose to cooperate, many
lawyers recommend that answer only the questions asked of you and
offer nothing more. Be polite. Be brief. Be confident. Be consistent.
As a criminal: You still don?t have to cooperate but don?t make it
harder on yourself by being a jerk. Since you are already deemed a
?criminal? (i.e. arrested for at least one crime already) this
attitude will only get you no where but in deeper trouble. Be as
polite and respectful as you can under the circumstances. Personally,
I?ve even been known in many cases to choose certain minimal charges
to arrest criminals for when they have been respectful and
cooperative. I, like many of my colleagues, understand that some
people, even though they might have broken the law this one time, are
not altogether ?bad? people. On the other hand, I?ve ?thrown the book?
so to speak, at those who made it worse for themselves by running off
at the head inappropriately or unnecessarily.
. . . . . . . . .
Ok, now that I think we?ve addresses each of your specific questions
I?ll offer some insight and opinion from my lifetime of law
enforcement service. If it?s alright with you I?ll do it in my own
little impromptu Q&A here:
?Is it wise to remain silent if I am questioned by police??
It depends. I can?t offer legal advice in this forum and you should
really consult an attorney on this, but if it were me, knowing what I
know about the issues now, as a suspect I?d remain SELECTIVELY SILENT.
What do I mean by that? Well, although remaining silent is indeed one
of your rights, it does tend to raise some red flags as you might
imagine. There?s nothing really that can be done about it from an
officer?s perspective but it doesn?t do too much for one?s
credibility. Personally, I?d choose which questions I?d answer and I?d
answer them directly, briefly and politely. The ones I choose not to
answer I?d simply shrug or say something ambiguous like ?who knows??.
Keep in mind that ANYTHING you say, even a lie, CAN be held against
you. It isn?t a good idea to lie but if you can provide polite answer
that doesn?t give away anything, it might be something to consider
doing. This way you have seemingly cooperated without actually doing
so. If the question got too complicated or I couldn?t provide an
ambiguous answer, I?d stop the questioning by asking my own questions
?Am I being arrested sir??, ?What?s this all about sir??, ?I don?t
understand sir. Can you explain it to me again??, and so forth (not
the respect given here). In a worst-case scenario I?d refuse to answer
and ask to have a lawyer present before the questioning continued.
On the other hand, if I didn?t have anything to hide, I (personally)
would tell the=m whatever they wanted to know in the hope that they?d
soon understand that I am not the person they are looking for.
?Can I legally give a police officer ?the finger???
This is a matter of jurisdictional interpretation. Where I work a
citizen is permitted to ?flip off? an officer provided that it is not
intended to provoke him. If it is a spontaneous gesture or rendered as
merely an opinionated gesture, the saluting party will not be
arrested. Courts have ruled that this gesture, albeit an offensive one
by most people?s standards, is protected by the First Ammendment. On
the other hand, some jurisdictions are not so universal in their
thinking and the gesture could be construed as disorderly conduct or
threatening or provocative behavior. Whatever ever the case, it is not
wise to risk spending a few nights in jail just to see if you?ll be
convicted of it. In short, the middle finger is still not a good idea.
?How does an offer view swearing??
Most will overlook it as long as it is not directed at them. If you
are speaking to them generally about a subject and use swear words, it
will probably be dismissed. If you are yelling swear words in public,
you might find yourself arrested for disorderly conduct if other
people can hear it. From a human standpoint, like most people, the
officer will probably think to himself that you have very little class
or limited education and can?t express yourself adequately without
using swear words. From a professional standpoint, he?ll probably
tolerate it up to a point.
?Are the terms ?Pig?, ?Cop?, ?5-0?, ?Narc?, etc illegal??
No. And what?s more they don?t break the majority of officers hearts
either for the most part but they do tend to send up red flags about a
person?s level of respect for the law and his level of self-control
and discipline. On the other hand, if you point at an officer, grit
your teeth and yell, ?Pig!? at him, you will likely find yourself in
danger of further investigation. Not because of WHAT you said, but HOW
you said it. In other words, I?d venture to say that if you pointed at
him, gritted your teeth and yelled ?Cow!? you?d probably get the same
results.
?Can I demand to speak to officer?s supervisor??
Certainly. You?d be surprised at the results of some ?citizen
complaints?. These are taken very seriously as there is little margin
for error in law enforcement. Over the years I?ve seen officers
reprimanded for doing things wrong, I?ve seen the fired, and I?ve even
seen them sent to jail over complaints that turned out to be well
founded.
?What venues get the most attention if I wanted to complain??
My experience is that the local newspaper gets the best results. The
mayor, chief, police commission, et al, do not like negative press and
avoid it like the plague. A handily authored letter to the local
newspaper Editor or investigative newspaper reporter is often a
miracle in the making for a mistreated citizen. Why am I telling you
this? Isn?t this kind of information tantamount to being a traitor to
my own cause? I?m telling you what every citizen should know and every
officer should be concerned about because mistreated citizens have
rights too and officers who mistreat them should be publicly exposed
and dealt with. Traitor? Well, call it what you will. I?m all about
PROTECTING AND SERVING. If that means exposing one of my own then so
be it. No one is above the law. I?ve done it before and I?m prepared
to do it again if necessary. I have no qualms against it.
Below you will find that I have carefully defined my search strategy
for you in the event that you need to search for more information. By
following the same type of searches that I did you may be able to
enhance the research I have provided even further. I hope you find
that my research exceeds your expectations. I anticipate some
clarification so if you have any questions about my research please
post a clarification request prior to rating the answer. I?ll be happy
to elaborate further. Otherwise, I welcome your rating and your final
comments and I look forward to working with you again in the near
future. Thank you for bringing your question to us.
Best regards;
Tutuzdad ? Google Answers Researcher
INFORMATION SOURCES
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Terry v Ohio
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