KNOW YOUR RIGHTS
How to Deal with the Police
By Waring R. Fincke
Attorney at Law
After almost twenty years of defending citizens accused of crime, I
offer what everyone needs to know in order to protect themselves
when talking with the police.
It is important to remember that the reason the police are dealing
with you may end up being explained to a judge or jury in a
courtroom. Police officers are trained to write down what people
say and to repeat what they have heard later from their notes and
reports. Most people do not write down what goes on between them
and the police and they are at a disadvantage when it comes time to
recall who said what several months or even years later.
So how do you deal with the officer who comes up to you on the
street and says "Hold on, I want to talk with you?" Your first
response might be, "How can I help you?" or it might be "What do
you want?" The first example sets a better tone with the officer
and lets her know that you are willing to talk, at least at first.
The second example is more hostile and will be taken as a challenge
to the officer's authority. The first response might very well lead
the officer to say, "We're investigating a burglary that just
happened down the street and want to know if you saw anything." The
second response may make the officer say, "Turn around and put your
hands on the wall," followed by a pat down search where the officer
searches your clothing for weapons which may be used to harm her or
others. That will be followed by, "What's your name and lets see
some identification?" How you respond will often determine what
happens next.
The basic rules after your first contact with an officer depend on
what you might have done (which you know about) and what the
officer thinks you have done (which you may not know about). If you
get the sense that the officer wants to talk with you because he
thinks you might be involved in criminal activity, then it is
important to remember that the officer does not have to warn you of
your constitutional rights unless she arrests you and intends to
ask you questions.
The famous Miranda warnings go like this, "You have the
right to remain silent and not say anything which might incriminate
yourself. Anything you say can and will be used against you in a
court of law. You can stop answering questions I ask you at
anytime. You have the right to have a lawyer with you when you go
to court or during questioning. If you cannot afford a lawyer, one
will be appointed for you."
Officers do not have to give these warnings unless you have been
arrested and they intend to ask you questions. This means that
anything you might say or write, before you are arrested, can be
used against you in court. Many people have received lengthy prison
terms because of what they said or wrote before their arrest. Many
people have talked with police and admitted to criminal activity
while on the street and paid the price for their ignorance of the
law with a long stay in prison.
The advice contained in the warnings applies to all police-citizen
contacts. If approached by an officer, you do not have to answer
any questions she may ask you, even if you are not arrested. You
are perfectly within your rights to say to the officer who asks to
speak with you, "Officer, I do not want speak with you. Good bye."
At this point you should be free to leave the officer's presence.
The officer may not like this and may challenge you with words
like, "If you have nothing to hide, why won't you speak to me?"
Just like the first question, you do not have to answer this one
either.
If you refuse to answer the officer's questions, she might take the
next step by saying, "You will have to stay here and answer my
questions" or "You're not leaving until I find out what I want." If
the officer restrains you by words or actions, such as putting you
in a squad car or in handcuffs, then she must give you the
Miranda warnings, if she intends to ask you questions. If
she just wants you to sweat, she may not give you the warnings at
all and just take you to the station, just to show you who is the
boss.
If you are not free to leave, you have been arrested, whether or
not you are taken to a police station. If the police have arrested
you, that means that they have enough information to believe that
you are at least a suspect in criminal activity. Under these
circumstances, you should follow the advice of the warnings and
refuse to tell the officers anything unless you are provided with a
lawyer. After telling the officer your name and date of birth, you
should say, "I will not answer any more questions until I have a
lawyer present." This may mean that you will spend a little bit
longer time in jail until you can call a lawyer, but it will be
worth the wait. You will not be able to successfully talk your way
out of police custody, once you are arrested, without a lawyer's
help.
Sometimes the police arrest people on suspicion, hoping that they
will confess or make a statement which can be used against the
person. Often, the police will tell the arrested person that
cooperation with them is best and it will go better for them if
they cooperate by talking. Remember, talking and writing are the
same and you do not have to sign a written statement before it can
be used against you.
Officers may promise shorter sentences and other deals for
statements or confessions. The police cannot legally make deals
with people they arrest. The only person who can make a deal that
can be enforced is the prosecutor, and he should not talk with you
without a lawyer present who represents you.
It is legal for the police to lie to you about what they know or
suspect or what other people have said about you. The police might
try these or other tricks to get you to talk. Police often do not
tape record or videotape interviews with those they arrest. If you
talk with them, it will be your word against the officer's word
about what you said. You should refuse to talk without a lawyer
present to represent you, no matter what the police say. A weekend
spent in jail waiting for a lawyer is better than a lengthy prison
sentence spent because you talked to the police without a lawyer to
help you. Trying to talk your way out of the police station by
telling the police what they want to hear or by telling a lie will
always do much more harm than good to your case.
The only exception to this rule is if you are arrested for drunk
driving. Then, you will need to figure out if you want to take a
breath or chemical test, as required by law. If you refuse to take
such a test, after being arrested for drunk driving, your driver's
license can be revoked for a year or more for refusing to take the
test.
If you have been arrested for just drunk driving, it may be
advisable to take the test. If you were involved in an accident
where people were killed or seriously injured, it may be advisable
not to take the test and suffer the revocation rather than give the
police evidence of your possible intoxication. In either event, the
police do not have to let you speak with a lawyer before taking the
test. If you tell them that you will not take the test without a
lawyer present, they will treat your comment as a refusal and so
will the court.
Remember, in most situations you are under no obligation to talk
with the police. If you are arrested, then you should immediately
ask to have a lawyer present and you should not say anything to the
police until a lawyer who represents you is present.
WARING R.
FINCKE
Attorney at Law
1784 Barton Avenue
Suite 17
West Bend, Wisconsin 53090
(262) 334-1030 (voice)
(262) 334-1035 (fax)
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Fincke