This is a compilation of legal information from various sources. We cannot stress enough how important it is to take the time to carefully read through this entire page. If there is something you don't understand or if you have any questions or concerns please email us at swopphoenix@gmail.com. We are not attorneys and cannot give legal advice but we will do our best to answer your questions or we will point you in the direction of someone who can.
Know your rights
reprinted from sexwork.com
What to do if you are visited or stopped by the police. First, and most important, in an encounter with the police:
Know your rights
reprinted from sexwork.com
What to do if you are visited or stopped by the police. First, and most important, in an encounter with the police:
•DO NOT physically resist or threaten the officer(s) in any way.
•DO NOT try to leave until an officer tells you that you are free to go.
•DO NOT give the officer any information about any of your activities.
•DO NOT consent to any search.
The bottom line:
IF YOU ARE NOT FREE TO GO, YOU ARE UNDER ARREST. WHEN YOU ARE UNDER ARREST YOU HAVE THE RIGHT TO REMAIN SILENT.
•DO NOT try to leave until an officer tells you that you are free to go.
•DO NOT give the officer any information about any of your activities.
•DO NOT consent to any search.
The bottom line:
IF YOU ARE NOT FREE TO GO, YOU ARE UNDER ARREST. WHEN YOU ARE UNDER ARREST YOU HAVE THE RIGHT TO REMAIN SILENT.
KEEP IT SIMPLE. Don’t lie. Don’t be a smart ass. Don’t try to be friends with the officer.
Simply refuse to answer any of the officer's questions. Each time he/she asks a question, respond with the question "Am I free to go?" This will probably result in such frustration for the officer that they may arrest you anyway...but better to be arrested with little or no evidence, than to give the officer information they may use to file charges and for those charges to stick!
It’s all a game. But the rules of the game (the Constitution of the United States) are in your favor. You cannot be punished more severely, just because you refused to risk incriminating yourself during a police investigation (no matter what an officer says).
REMEMBER:
If you are not free to go, then you have the right to remain silent.
Know what to expect if stopped or visited by the police!
You will be asked for identification (if you are driving, you may be asked for your registration and insurance info, as well). You are required to provide this information. Then the “investigation” will start. The conversation might go something like this:
Officer: Do you have any ID on you?
You: Yes sir. (or ma’am)
Officer: May I see it?
You: Certainly Officer. May I reach into my pocket to get it?
Officer: Yes…Is this your current address?
You: Yes sir.
Officer: What are you doing out here tonight?
You: Officer, am I free to go?
Officer: Not yet. What are you doing out here tonight?
You: If I’m not free to go, then I’m going to exercise my right to remain silent.
The officer will then try everything he/she can think of to get you to start talking. They’ll try to convince you that you’ll be in more trouble if you don’t cooperate. They’ll try to convince you that you’re not under arrest, so there’s nothing wrong with cooperating. They may yell at you, or play good cop/bad cop. Most police officers are moderately skilled interrogators. One thing is sure: they practice interrogation techniques a LOT more than you practice being interrogated. So don’t try to outsmart them.
Your refusal to cooperate will be very frustrating to the officer. He/she wants to put a prostitution bust on their arrest stats…particularly if they are assigned to Van Buren or any other “high vice” area. They will pull out all the stops to get you to tell them what they need to arrest you. Below are some of the interrogation techniques they may try:
1. Appeal to your innate desire to be honest and “come clean.” They’ll tell you that they already know a crime has been committed (they may tell you that the other person is spilling their guts) and that if you simply tell the truth, they’ll let you off the hook, or that they’ll still have to arrest you but they’ll “put in a good word for you with the prosecutor or judge.” This is complete crap. Police officers do not influence judges. They investigate crimes, and then provide testimony to a court regarding that investigation.
2. Intimidate you. The officer or officers will gang up on you. Get in your face. Surround you. Tell you that you have no choice but to cooperate. They may even yell at you, or knock you around a little. Yelling at, and/or using ANY kind of physical force on a detainee who is not physically resisting, is unprofessional behavior and can get the officers into deep doo-doo. Get at least one of their names and ID #s and report them to the Professional Standards Division of the department they work for!
3. You may find yourself in a “good cop/bad cop” situation, where one officer will pretend to be your friend and give you advice about how to get out of this mess, while the other officer pretends to pressure the friendly officer to arrest you and get it over with. This is just a combination of the first two techniques described above. Sometimes a single cop will play both roles. He/she will tell you that if you don't do what he tells you to do, that he won't be able to be such a nice guy and you will force him to arrest you.
4. Threaten to embarrass you. If you're married, have a girlfriend, kids, job, friends, etc. and it would be hard to explain why you were arrested, the police will use this to scare you into talking. A police officer detained me once and then called my wife at 2:00 am to "verify my address," telling her that he had stopped me on Van Buren. Of course, what he was really doing was trying to embarrass me into talking.
The main tool the cops use is interrogation technique #4 (threaten to embarrass)...If you've got six cops surrounding you and you think you're going to jail, and a wife is waiting at home who will eventually find out what you got arrested for, most people will panic and do anything they think will get them out of the mess. Unfortunately this will backfire on them and they will be prosecuted even more vigorously because of the info they will give the officers. Then, not only will they have to explain getting arrested, they'll also have to explain getting found guilty of the charges!
2. Intimidate you. The officer or officers will gang up on you. Get in your face. Surround you. Tell you that you have no choice but to cooperate. They may even yell at you, or knock you around a little. Yelling at, and/or using ANY kind of physical force on a detainee who is not physically resisting, is unprofessional behavior and can get the officers into deep doo-doo. Get at least one of their names and ID #s and report them to the Professional Standards Division of the department they work for!
3. You may find yourself in a “good cop/bad cop” situation, where one officer will pretend to be your friend and give you advice about how to get out of this mess, while the other officer pretends to pressure the friendly officer to arrest you and get it over with. This is just a combination of the first two techniques described above. Sometimes a single cop will play both roles. He/she will tell you that if you don't do what he tells you to do, that he won't be able to be such a nice guy and you will force him to arrest you.
4. Threaten to embarrass you. If you're married, have a girlfriend, kids, job, friends, etc. and it would be hard to explain why you were arrested, the police will use this to scare you into talking. A police officer detained me once and then called my wife at 2:00 am to "verify my address," telling her that he had stopped me on Van Buren. Of course, what he was really doing was trying to embarrass me into talking.
The main tool the cops use is interrogation technique #4 (threaten to embarrass)...If you've got six cops surrounding you and you think you're going to jail, and a wife is waiting at home who will eventually find out what you got arrested for, most people will panic and do anything they think will get them out of the mess. Unfortunately this will backfire on them and they will be prosecuted even more vigorously because of the info they will give the officers. Then, not only will they have to explain getting arrested, they'll also have to explain getting found guilty of the charges!
Know the law!
According to ARS 13-3211:
According to ARS 13-3211:
"Prostitution" means engaging in or agreeing or offering to engage in sexual conduct with another person under a fee arrangement with that person or any other person.
"Sexual conduct" means sexual contact, sexual intercourse, oral sexual contact or sadomasochistic abuse.
In order to arrest you, the police officer must establish that a reasonable person would believe a crime has been committed. Even if you DID make an offer for prostitution, unless the officer actually heard the conversation, then the only information the officer has, is that a person driving down the street, picked up another person who was walking down the street; or that a person was inside another person's home for a period of time; or maybe that there are many male visitors to a female's home; etc. You may have gone to a hotel with someone, or maybe just pulled off on a side street and spent some time in your car. You may even have gotten caught in the act of having sex with the other person. Having sex (even with strangers) is NOT illegal!
However, the police may suspect that you made (or accepted) an offer of sex for money, especially if any of these things occurred in a “known high-vice area” like Van Buren. Detaining you at this point is already skating on the ragged edge of violating your rights. Don’t stand for it!
When the police stop, detain, and interrogate people, without having any real knowledge that a crime has been committed, we get a little closer to being denied the basic freedom to conduct our lives as our conscience guides us. Freedom is not just won in wars…the fight for freedom begins with each citizen and his or her daily response to government oppression.
If you engaged in an act of prostitution (as defined by the statute, above), then you DID break the law. However, you are under NO obligation to admit to a law enforcement officer that you broke the law, or to cooperate with any investigation aimed at finding out if a law has been broken.
About the author John Crockett:
I am not a lawyer and this is not intended as legal advice. However, I have shown this to several lawyers who agree that its contents are true and useful. I decided to produce this document after having my own civil rights violated by a group of Phoenix police officers. The information here is not intended to encourage illegal activity. I simply mean to exercise my right to free speech by educating as many people as possible on ways to avoid being taken advantage of by the police.
Dave In Phoenix adds additional Suggestions:
Paying for sex is illegal in the U.S. unlike most of the world. But paying for time and companionship, exchanging non sexual massage, hugging, lying together naked non-sexually caressing body is not sex and not illegal under the law. Separately from the paid session and for no compensation as consenting adults you can enjoy the natural desire for sexual sharing. As long as no money is paid for the sexual activities.
If I was a provider I would say upon meeting a first time clients, "I just want to make it clear for our legal protection I don't accept money for sex, my $200 fee is for my time and companionship. I might decide to enjoy sex with you but if so, there is no cost, we would just be friends. Is that agreeable?"
In most police agencies it is against their policy to get naked with you or even more if they initiate sexual contact which may be entrapment. You might ask, would you like to get more comfortable. You might even lay in bed nude with him, give him a massage but don't touch genitals - let him take the imitative on anything sexual not you. He is not paying you for sex just for being with him.
Even if you are arrested by aggressive LE, if you didn't get paid for sex but time and companionship based on what you said and did with undercover LE, your case may not be prosecuted if the facts aren't clear. Prostitution is usually a relatively low priority case and often the cases are tossed unless they are obviously easy convictions. Courts, Judges and other public resources should be directed more towards real crime with victims vs. in private morality crimes. Yet LE often is aggressive in enforcing morality crimes but prosecutors are not as aggressive unless again looks like a easy win.
The Supreme Court in Lawrence vs. Texas said that morality in private can not be a basis for laws. But the case has never been tested in a prostitution case or with the new "Bush" Supreme Court.
For example of about 100 arrests of both gals and guys by Sheriff Joes' massive entrapment sting a few years ago ALL the cases were dismissed! Being arrested of course is traumatic for the non criminal just sharing pleasure in private but even if caught in a sting chances are good that if you are careful in what you have said and done the case will be dismissed.
In Case Of Arrest - What NOT To Do
by A. Brian Dinday, Attorney-At-Law
I have been practicing criminal law for 24 years and have seen a wide variety of reactions by people who are being arrested. Some of these reactions are unwise but understandable. Others are self defeating to the point of being bizarre. No one plans to be arrested, but it might help to think just once about what you will do and not do if you ever hear the phrase “Put your hands behind you.” The simplest “to do” rule is to do what you are told. Simple, but somehow it often escapes someone who is either scared or intoxicated. More important to guarding your rights and interests are ten things you SHOULD NOT do:
1. 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. He does not decide your guilt and he actually doesn’t care if you are innocent or not. It is the job of the judge or jury to free you if he is wrong. If you feel that urge to convince him he’s made a mistake, remember the overwhelming probability that instead you will say at least one thing that will hurt your case, perhaps even fatally. It is smarter to save your defense for your lawyer!
2. Don’t run. It’s highly unlikely a suspect could outrun ten radio cars converging on a block in mere seconds. I saw a case where a passenger being driven home by a drunk friend bolted and ran. Why? It was the driver they wanted, and she needlessly risked injury in a forceful arrest. Even worse, the police might have suspected she ran because she had a gun, perhaps making them too quick to draw their own firearms. Most police will just arrest a runner, but there are some who will be mad they had to work so hard and injure the suspect unnecessarily.
3. Keep quiet. My hardest cases to defend are those where the suspect got very talkative. Incredibly, many will start babbling without the police having asked a single question. My most vivid memory of this problem was the armed robbery suspect who blurted to police: “How could the guy identify me? The robbers were wearing masks.” To which the police smiled and responded, “Oh? Were they?” Judges and juries will discount or ignore what a suspect says that helps him, but give great weight to anything that seems to hurt him. In 24 years of criminal practice, I could count on one hand the number of times a suspect was released because of what he told the police after they arrested him.
4. Don’t give permission to search anywhere. If they ask, it probably means they don’t believe they have the right to search and need your 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 the police 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.
5. If the police are searching your car or home, don’t look at the places you wish they wouldn’t search. Don’t react to the search at all, and especially not to questions like “Who does this belong to?”
6. Don’t resist arrest. Above all, do not push the police or try to swat their hands away. That would be assaulting an officer and any slight injury to them will turn your minor misdemeanor arrest into a felony. A petty shoplifter can wind up going to state prison that way. Resisting arrest (such as pulling away) is merely a misdemeanor and often the police do not even charge that offense. Obviously, striking an officer can result in serious injury to you as well.
7. Try to resist the temptation to mouth off at the police, even if you have been wrongly arrested. Police have a lot of discretion in what charges are brought. 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. On the other hand, I have seen a client who was friendly to the police and talked sports and such on the way to the station. They gave him a break. Notice he did not talk about his case.
8. 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.
9. If at home, do not invite the police inside, nor should you “step outside.” 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 correct responses are: “I am comfortable talking right here.”, “No, you may not come in.”, or “Do you have a warrant to enter or to arrest me in my home?” I am not suggesting that you run. In fact, that is the best way to ensure the harshest punishment later on. But you may not find it so convenient to be arrested Friday night when all the courts and law offices are closed. With an attorney, you can perhaps surrender after bail arrangements are made and spend NO time in custody while your case is pending.
10. If you are arrested outside your home, do not 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.
That’s it: Ten simple rules that will leave as many of your rights intact as possible if you are arrested. How about a short test? You have a fight with your live-in girlfriend and the police come and find you on the sidewalk two houses down from the apartment. The girlfriend points you out and the police arrest you for assault. They tell you they don’t intend to question you. They just want your name and address. Do you answer? Well, you shouldn’t. Your address is the single most damaging admission you could make. If you admit living with her, you have just converted a misdemeanor assault into a felony punishable by state prison. When you are arrested it is their game, and you don’t know the rules. It is best to be silent and let the attorney handle it later. The bottom line is that if the police have enough evidence to arrest, they will. If they don’t, you could easily provide that missing evidence by talking.
A. Brian Dinday
Attorney at Law.
Legal Questions and Answers
reprinted from SWOP-Chicago
Check out flexyourrights.org for more information:
Q: What if the officer says he’ll go easy on me if I cooperate?
A: Unfortunately, many people get fooled by some version of this commonly used police officer’s line: “Everything will be easier if you cooperate.” That might be true sometimes, but when it comes to consenting to searches and answering incriminating questions, it couldn’t be further from the truth.
Q: Aren’t police required to read me my rights?
A: No. The courts have made clear that police officers do not have to tell people that they can refuse to consent to a warrantless search. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid.
Many people believe that an officer must automatically read a person his or her Miranda rights as part of performing an arrest, either immediately before or immediately after an arrest is made. This is also myth. The truth is that the only time an officer must read a person his or her Miranda rights is when: (1) the person has been taken into custody, and (2) the officer is about to question the person about a crime.
Police officers are often pretty tricky about trying to get someone’s consent to a search. They know that most people feel intimidated by police officers and are predisposed to comply with any request by a police officer. For example, the average motorist stopped by a police officer who asks them, “Would you mind opening the trunk, please?” will probably consent to the officer’s search without realizing that they have every right to deny the officer’s request.
Q: Are police allowed to lie?
A: Yes. Police are generally permitted to lie if it helps them make arrests. The best example of this is when undercover officers claim not to be police. The rules regarding entrapment usually tip in favor of law-enforcement, so police won’t hesitate to trick you into incriminating yourself or others. This is particularly common during interrogations in which officers might tell you that “your friend already gave you up, so you might as well come clean.”
The best defense against these manipulative tactics is to avoid saying anything to police without first speaking with an attorney.
Q: You recommend never lying to police, but what if they ask if I have illegal items and I do? Should I admit to having illegal items? Should I lie?
A: This is a tricky situation. Of course you should never admit to having illegal items, but you should also make every effort to avoid lying to police. You’re always free to remain silent, and police may not hold your silence against you as evidence of wrong-doing.
Nonetheless, this is a rare situation where some experts secretly recommend lying. The main reason to avoid lying is because police are good at detecting it, but in this case that doesn’t matter as much because you’re already a suspect if they ask about contraband.
The most important thing is to be prepared for the inevitable next question: “Do you mind if I search you/your space?”
Always refuse the search, and remember that you can’t get in trouble for asserting your rights.
*Kelly notes that if it were her she would ask if she was under arrest and if she was free to go. If not, she would politely state that she does not want to answer any more questions without an attorney present.
Q. What should I do if I am the victim of police misconduct?
A: If you feel that your rights have been violated by police, do not panic. There are several steps to the process of combating police misconduct, and you must approach them in a calm and organized manner.
Step 1: Write everything down
This step is extremely important and must be completed as soon as possible following the incident. It’s easy to forget small details over time, and there’s no way to know which facts will make a difference later on.
In your own words describe everything that took place from the very beginning of the police encounter to the end. When quoting yourself or the officer try to use exact words. Be specific about the location, time of day, etc.
Also include witness’s names and contact information and the officers’ names, physical descriptions, and badge numbers. If necessary, be prepared to return to the scene of the incident in search of possible witnesses. Doing so may also help jog your memory about other important details.
Step 2: Consult with an attorney
This step is essential if you were arrested following the incident. It is optional, but recommended, if you were not arrested.
Victims of police misconduct are often vigorously prosecuted in order to gain leverage in case the victim files a lawsuit. If you’re caught in a situation like this, you need a good police misconduct attorney immediately. Police misconduct cases are challenging, and lawyers meet a lot of difficult people, so separate yourself from the pack by being calm and well-organized. The materials you prepared in Step 1 will help demonstrate that you are a competent defendant whose case is worth taking.
If you were not charged with a crime following the incident, you may still wish to pursue a civil suit against the police department. An attorney will help you determine whether you have a strong enough case. Proving police misconduct is extremely difficult, so your attorney will choose whether to proceed based on the strength of the evidence, rather than the severity of the misconduct. Do not become upset if you can’t find an attorney to take your case, simply proceed to Step 3.
Step 3: File a Police Misconduct Report
This step cannot begin until all criminal charges and civil actions have been resolved. Filing a police misconduct report prematurely will hurt your chances in court by revealing too much information to the police. Of course, if you weren’t charged with a crime and you’re not suing, the complaint should be filed right away.
The materials you prepared in Step 1 will form the body of your complaint. You’ll be glad you wrote it down back then, because you might be filing your complaint weeks or months after the incident. Where to file your complaint depends on your jurisdiction, but there’s usually a citizen review board or an office within the police department that accepts them. Entering “police complaint” + “(name of your town or city)” into Google will usually direct you to the correct office. If your town has a civilian review board and an office within the police department that both accept complaints, you should send your report to both offices.
Also take note of whether there’s an official form that you’re required to use. If so, you may have to transfer the information you wrote down in Step 1 onto the correct form. Failing to do so could result in your complaint being rejected arbitrarily. In some areas you might have to call or visit a police office in order to obtain the proper form. When doing so, refrain from discussing the nature of your complaint with any police officer. Police might try to intimidate you by claiming that your particular complaint has no merit. Worse, they may warn the officers involved, which could lead to a cover-up.
Finally, before sending your complaint, be sure to make copies and place them in a secure location. Send your complaint by certified mail so the police cannot deny having received it. You should also send copies to your local ACLU and NAACP chapters. Don’t forget to call SWOP!
Finally, keep in mind that filing a complaint does not ensure a prompt response from the police department or civilian monitoring agency. Police departments receive many complaints, so your concerns won’t necessarily receive the individual attention they may deserve. Remember that your complaint creates documentation of an incident and could be used in conjunction with other complaints to illustrate a pattern of misconduct. This information is useful to community activists who work to prevent systemic police abuse in your community. Similarly, your complaint could become relevant in the future if the same officer is accused of additional misconduct. In short, your complaint is important even if you don’t get a response.
In Case Of Arrest - What NOT To Do
by A. Brian Dinday, Attorney-At-Law
I have been practicing criminal law for 24 years and have seen a wide variety of reactions by people who are being arrested. Some of these reactions are unwise but understandable. Others are self defeating to the point of being bizarre. No one plans to be arrested, but it might help to think just once about what you will do and not do if you ever hear the phrase “Put your hands behind you.” The simplest “to do” rule is to do what you are told. Simple, but somehow it often escapes someone who is either scared or intoxicated. More important to guarding your rights and interests are ten things you SHOULD NOT do:
1. 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. He does not decide your guilt and he actually doesn’t care if you are innocent or not. It is the job of the judge or jury to free you if he is wrong. If you feel that urge to convince him he’s made a mistake, remember the overwhelming probability that instead you will say at least one thing that will hurt your case, perhaps even fatally. It is smarter to save your defense for your lawyer!
2. Don’t run. It’s highly unlikely a suspect could outrun ten radio cars converging on a block in mere seconds. I saw a case where a passenger being driven home by a drunk friend bolted and ran. Why? It was the driver they wanted, and she needlessly risked injury in a forceful arrest. Even worse, the police might have suspected she ran because she had a gun, perhaps making them too quick to draw their own firearms. Most police will just arrest a runner, but there are some who will be mad they had to work so hard and injure the suspect unnecessarily.
3. Keep quiet. My hardest cases to defend are those where the suspect got very talkative. Incredibly, many will start babbling without the police having asked a single question. My most vivid memory of this problem was the armed robbery suspect who blurted to police: “How could the guy identify me? The robbers were wearing masks.” To which the police smiled and responded, “Oh? Were they?” Judges and juries will discount or ignore what a suspect says that helps him, but give great weight to anything that seems to hurt him. In 24 years of criminal practice, I could count on one hand the number of times a suspect was released because of what he told the police after they arrested him.
4. Don’t give permission to search anywhere. If they ask, it probably means they don’t believe they have the right to search and need your 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 the police 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.
5. If the police are searching your car or home, don’t look at the places you wish they wouldn’t search. Don’t react to the search at all, and especially not to questions like “Who does this belong to?”
6. Don’t resist arrest. Above all, do not push the police or try to swat their hands away. That would be assaulting an officer and any slight injury to them will turn your minor misdemeanor arrest into a felony. A petty shoplifter can wind up going to state prison that way. Resisting arrest (such as pulling away) is merely a misdemeanor and often the police do not even charge that offense. Obviously, striking an officer can result in serious injury to you as well.
7. Try to resist the temptation to mouth off at the police, even if you have been wrongly arrested. Police have a lot of discretion in what charges are brought. 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. On the other hand, I have seen a client who was friendly to the police and talked sports and such on the way to the station. They gave him a break. Notice he did not talk about his case.
8. 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.
9. If at home, do not invite the police inside, nor should you “step outside.” 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 correct responses are: “I am comfortable talking right here.”, “No, you may not come in.”, or “Do you have a warrant to enter or to arrest me in my home?” I am not suggesting that you run. In fact, that is the best way to ensure the harshest punishment later on. But you may not find it so convenient to be arrested Friday night when all the courts and law offices are closed. With an attorney, you can perhaps surrender after bail arrangements are made and spend NO time in custody while your case is pending.
10. If you are arrested outside your home, do not 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.
That’s it: Ten simple rules that will leave as many of your rights intact as possible if you are arrested. How about a short test? You have a fight with your live-in girlfriend and the police come and find you on the sidewalk two houses down from the apartment. The girlfriend points you out and the police arrest you for assault. They tell you they don’t intend to question you. They just want your name and address. Do you answer? Well, you shouldn’t. Your address is the single most damaging admission you could make. If you admit living with her, you have just converted a misdemeanor assault into a felony punishable by state prison. When you are arrested it is their game, and you don’t know the rules. It is best to be silent and let the attorney handle it later. The bottom line is that if the police have enough evidence to arrest, they will. If they don’t, you could easily provide that missing evidence by talking.
A. Brian Dinday
Attorney at Law.
Legal Questions and Answers
reprinted from SWOP-Chicago
Check out flexyourrights.org for more information:
Q: What if the officer says he’ll go easy on me if I cooperate?
A: Unfortunately, many people get fooled by some version of this commonly used police officer’s line: “Everything will be easier if you cooperate.” That might be true sometimes, but when it comes to consenting to searches and answering incriminating questions, it couldn’t be further from the truth.
Q: Aren’t police required to read me my rights?
A: No. The courts have made clear that police officers do not have to tell people that they can refuse to consent to a warrantless search. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid.
Many people believe that an officer must automatically read a person his or her Miranda rights as part of performing an arrest, either immediately before or immediately after an arrest is made. This is also myth. The truth is that the only time an officer must read a person his or her Miranda rights is when: (1) the person has been taken into custody, and (2) the officer is about to question the person about a crime.
Police officers are often pretty tricky about trying to get someone’s consent to a search. They know that most people feel intimidated by police officers and are predisposed to comply with any request by a police officer. For example, the average motorist stopped by a police officer who asks them, “Would you mind opening the trunk, please?” will probably consent to the officer’s search without realizing that they have every right to deny the officer’s request.
Q: Are police allowed to lie?
A: Yes. Police are generally permitted to lie if it helps them make arrests. The best example of this is when undercover officers claim not to be police. The rules regarding entrapment usually tip in favor of law-enforcement, so police won’t hesitate to trick you into incriminating yourself or others. This is particularly common during interrogations in which officers might tell you that “your friend already gave you up, so you might as well come clean.”
The best defense against these manipulative tactics is to avoid saying anything to police without first speaking with an attorney.
Q: You recommend never lying to police, but what if they ask if I have illegal items and I do? Should I admit to having illegal items? Should I lie?
A: This is a tricky situation. Of course you should never admit to having illegal items, but you should also make every effort to avoid lying to police. You’re always free to remain silent, and police may not hold your silence against you as evidence of wrong-doing.
Nonetheless, this is a rare situation where some experts secretly recommend lying. The main reason to avoid lying is because police are good at detecting it, but in this case that doesn’t matter as much because you’re already a suspect if they ask about contraband.
The most important thing is to be prepared for the inevitable next question: “Do you mind if I search you/your space?”
Always refuse the search, and remember that you can’t get in trouble for asserting your rights.
*Kelly notes that if it were her she would ask if she was under arrest and if she was free to go. If not, she would politely state that she does not want to answer any more questions without an attorney present.
Q. What should I do if I am the victim of police misconduct?
A: If you feel that your rights have been violated by police, do not panic. There are several steps to the process of combating police misconduct, and you must approach them in a calm and organized manner.
Step 1: Write everything down
This step is extremely important and must be completed as soon as possible following the incident. It’s easy to forget small details over time, and there’s no way to know which facts will make a difference later on.
In your own words describe everything that took place from the very beginning of the police encounter to the end. When quoting yourself or the officer try to use exact words. Be specific about the location, time of day, etc.
Also include witness’s names and contact information and the officers’ names, physical descriptions, and badge numbers. If necessary, be prepared to return to the scene of the incident in search of possible witnesses. Doing so may also help jog your memory about other important details.
Step 2: Consult with an attorney
This step is essential if you were arrested following the incident. It is optional, but recommended, if you were not arrested.
Victims of police misconduct are often vigorously prosecuted in order to gain leverage in case the victim files a lawsuit. If you’re caught in a situation like this, you need a good police misconduct attorney immediately. Police misconduct cases are challenging, and lawyers meet a lot of difficult people, so separate yourself from the pack by being calm and well-organized. The materials you prepared in Step 1 will help demonstrate that you are a competent defendant whose case is worth taking.
If you were not charged with a crime following the incident, you may still wish to pursue a civil suit against the police department. An attorney will help you determine whether you have a strong enough case. Proving police misconduct is extremely difficult, so your attorney will choose whether to proceed based on the strength of the evidence, rather than the severity of the misconduct. Do not become upset if you can’t find an attorney to take your case, simply proceed to Step 3.
Step 3: File a Police Misconduct Report
This step cannot begin until all criminal charges and civil actions have been resolved. Filing a police misconduct report prematurely will hurt your chances in court by revealing too much information to the police. Of course, if you weren’t charged with a crime and you’re not suing, the complaint should be filed right away.
The materials you prepared in Step 1 will form the body of your complaint. You’ll be glad you wrote it down back then, because you might be filing your complaint weeks or months after the incident. Where to file your complaint depends on your jurisdiction, but there’s usually a citizen review board or an office within the police department that accepts them. Entering “police complaint” + “(name of your town or city)” into Google will usually direct you to the correct office. If your town has a civilian review board and an office within the police department that both accept complaints, you should send your report to both offices.
Also take note of whether there’s an official form that you’re required to use. If so, you may have to transfer the information you wrote down in Step 1 onto the correct form. Failing to do so could result in your complaint being rejected arbitrarily. In some areas you might have to call or visit a police office in order to obtain the proper form. When doing so, refrain from discussing the nature of your complaint with any police officer. Police might try to intimidate you by claiming that your particular complaint has no merit. Worse, they may warn the officers involved, which could lead to a cover-up.
Finally, before sending your complaint, be sure to make copies and place them in a secure location. Send your complaint by certified mail so the police cannot deny having received it. You should also send copies to your local ACLU and NAACP chapters. Don’t forget to call SWOP!
Finally, keep in mind that filing a complaint does not ensure a prompt response from the police department or civilian monitoring agency. Police departments receive many complaints, so your concerns won’t necessarily receive the individual attention they may deserve. Remember that your complaint creates documentation of an incident and could be used in conjunction with other complaints to illustrate a pattern of misconduct. This information is useful to community activists who work to prevent systemic police abuse in your community. Similarly, your complaint could become relevant in the future if the same officer is accused of additional misconduct. In short, your complaint is important even if you don’t get a response.
