Readers of this blog surely know not to answer questions if approached or stopped by police. They know not to consent to any search EVER. How many ways can one repeat such words of wisdom?
For anyone wanting to know exactly WHY this is such good advice, you must watch this excellent video by a law school professor and former criminal defense attorney on why you should never, never, NEVER agree to be interviewed by the police:
Remember the film “Minority Report” with Tom Cruise? Cruise worked for the Department of Pre-Crime. Pre-Crime was able to determine who was going to commit crimes in advance, so they were able to send Cruise out to arrest and lock up people before they had done anything wrong.
This is called preventive detention. It is unconstitutional; and is a mark of a totalitarian state. The US has been doing it for years. President Obama recently announced that–while George Bush had gone about it in a haphazard way–Obama would formalize the practice through a new “legal” framework.
This prolonged imprisonment of suspects in the “war on terror” goes on even though the government cannot prove that the prisoners have committed any crime. [Note: as a point of reference, keep in mind that in the State of Missouri, no one can be held without formal criminal charges for more than 24 hours--even if the person is suspected of murder]
I often complain that the Misssouri legislature tinkers too much; always trying to fix everything and make everybody be nice to everybody and especially keeping people from drinking cold beverages when canoeing. But a new study informs us that Missouri is actually ranked number six in the U.S. for being the the MOST FREE.
The study is Freedom in the 50 states. An index of personal and economic freedom by William P. Ruger & Jason Sorens. The researchers collected data on economic and personal freedom, including:
Here are the best and the worst states:
Overall Freedom Ranking
1. New Hampshire (most free)
2. Colorado
3. South Dakota
4. Idaho
5. Texas
6. Missouri
. . . .
46. Maryland
47. California
48. Rhode Island
49. New Jersey
50. New York (least free)
One interesting aspect of the study shows that politically liberal states are the least free, but the most free states tended more toward a moderate conservatism.
Here is the study summary on Missouri:
One might be forgiven for expressing surprise at Missouri’s ranking in this dataset, given the way the media have covered political misdeeds in St. Louis so extensively. Apparently, St. Louis politicians do not run Missouri; otherwise, the state would probably not rank so highly! Missouri is ninth best on economic freedom and sixth best on personal freedom. Adjusted government spending and tax revenues are both nearly a full standard deviation below the national average.
The alcohol regime is one of the least restrictive in the United States, with no blue laws and taxes well below average. Gun control is very limited. Unfortunately, marijuana sentencing is extremely harsh. Several types of gambling are allowed, but oddly there is no social gambling exception.
Other than recordkeeping requirements, private and home schools are almost unregulated. Land-use planning is decentralized. Labor laws are generally market-friendly, but right-to-work and allowing workers’ compensation self-insurance would improve Missouri’s score here. Occupational licensing is less extensive than average. Asset forfeiture has been reformed, but eminent domain really has not. Cigarette taxes are low.
All in all, I still think we can do better, but apparently we we could do a lot worse.
In 1981 the U.S. Supreme Court decided, in the case of New York v. Belton, that if an occupant of a motor vehicle was arrested, the police could search the entire passenger compartment of the vehicle to look for weapons or evidence of a crime.
Under the fourth amendment such a search would normally be considered unreasonable and therefore unconstitutional, unless a search warrant was obtained. Even so, the Belton case has been the rule in Missouri ever since and gave the police an absolute right to search the entire passenger compartment of a vehicle once any occupant of that vehicle has been arrested.
Yesterday, the U.S. Supreme Court in Arizona v. Gant overruled its 28 year old decision in Belton by holding that the police could not search inside a vehicle, once the arrested person was away from the car, unless they had reason to believe that evidence of the crime might be found in the vehicle.
This is a huge decision. It is huge because a large proportion of drug arrests occur when the police arrest someone for an unrelated offense such as driving while revoked. Once the person is handcuffed and placed in the patrol car, the police always return to the vehicle and search the passenger compartment thoroughly.
It will be interesting to see how both police and citizens react to this change in the current search and seizure law.
Citizens may be more likely to step out of their vehicle after being pulled over so as to ensure that they will not have their vehicle searched if they were arrested for some reason.
One wonders if some police might be tempted to change their current practice of getting suspects out of a vehicle before arresting them. It’s hard to imagine a driver being arrested while still seated in his car and then being commanded to sit still while the officer searches the vehicle around him. If that were permitted, we might see the police running public service announcements telling drivers to remain in their vehicles when stopped, lest they be attacked by police officers who–misunderstanding the person’s actions-believe they are in danger.
I doubt the courts will permit the police to search vehicles by forcing arrested persons to stay inside the vehicle after arrest. If that is the case, then getting out of your car at a traffic stop would be an unnecessary precaution. It might also serve as a signal to police that evidence of a crime may be in the vehicle.
Another thing we may see is an escalation of vehicles being towed by police after an arrest (for safety reasons, of course). Then the police would thoroughly search the vehicle under what is known as the “inventory” exception to the search warrant requirement. Click here for “inventory search” explanation. A driver fortunate enough to be pulled over near a legal parking space may want to take advantage of that opportunity and deny police an excuse to tow the car.
We will have to see how this all plays out.
We’ve all seen the cop show where the police are sweating a confession out of the accused and just as the killer is about to admit his guilt, the defense lawyer rushes in and cuts off the interrogation by shouting: “Don’t answer that! This interview is OVER!”
Apparently defense lawyers (like the Terminator) are able to barge into secure areas of the police station anytime they want. Guess what? This NEVER happens.
When the police arrest someone and want to question them they first must read the suspect his rights as set forth in the US Supreme Court case of Miranda v. Arizona (1966). Most cops will carry a card from which the rights are read:
Another thing to keep in mind about these rights is that they are the rights of the accused, not his lawyer. If your spouse has hired a lawyer and sent the lawyer straight to the jail, he will not be rushing in to stop the questioning. You will not see him or even know he is in the building until the police are finished with their questions.
That is the bottom line: no suspect is going to talk to a lawyer until the police have finished their questioning (one exception being a DWI-related case where suspect is permitted to call a lawyer, IF THEY ASK TO).
If the police are smart–and many are–they will not let a suspect talk to ANY OUTSIDER until they get everything they can from the suspect. That will happen more quickly if the suspect stops all questioning by asking to talk to a lawyer.
Once the arrest and booking is over and the person is (hopefully) bailed out of jail, the accused will need a lawyer, but the case that is eventually presented to that lawyer to defend may be very different, depending on how well the defendant listened to the Miranda warnings and asserted those rights.
Most of us grow up being told that the policeman is our friend. We are not taught that he would lie to us. Some think that the police are not allowed to lie. This is so ingrained that even drug dealers believe it. This is why police reports and surveillance audios so often reveal a drug dealer asking a customer:
Dealer: “Are you a cop?”
Buyer: “No.”
Dealer: “OK.”
Busted. Yes, it’s true, the police are usually allowed to lie to citizens when they are fighting crime.
Lying about giving a statement:
If a suspect is arrested by the police, the police must BEGIN with a little straight honest talk. They read the person his Miranda rights:
After that, they can lie to and deceive a suspect in order to get a confession. And they can go pretty far before the court will draw the line and declare such confession to be coerced or involuntary. The police might tell a suspect:
I’ve seen police who don’t want to lie outright, will only suggest that he has such evidence. Knowing he has no fingerprints or surveillance video, he will ask the suspect to explain how his prints or picture might turn up. Then there is the old story of the interrogator who hooks the suspect up to a copy machine. Then every time the detective pushes the button the machine prints out a “report” that says: “He’s lying.”
But they can’t lie about everything:
One thing police cannot do is mislead a suspect regarding the consequences of confessing. If an officer tells a suspect that his statement cannot be used against him or will not result in charges, one can easily see that contradicts the Miranda warning that the officer gave earlier.
Lying about getting consent to search:
Sometimes the police want to get into a suspect’s home. They want to look around, but do not have enough evidence to get a search warrant. Lying to the homeowner is one of his tools. An undercover police officer can come to the suspected drug dealer’s house, posing as a buyer. If he is allowed inside on that basis, he may seize evidence or find enough other evidence to get a search warrant. The undercover cop might get in by knocking and asking to use a phone. These deceptions have been allowed by courts to get consent to enter.
One thing the police cannot do is go beyond the actual consent to enter. The undercover cop–invited inside to buy drugs or use the phone–cannot then start nosing around in closets and drawers. They may not get into a building by claiming authority that they do not have. That would immediately destroy the voluntariness of the consent.
There is also no voluntary consent to enter when the homeowner allows a police officer to enter because the officer has falsely claimed to have a legal right to enter. The same would apply where a government agent claims a false emergency, perhaps by posing as a gas company employee.
Hey fellas, I’m just getting your picture.”
Then he snapped the photo. Deputy McCloud – who has been on the force only 18 months – told him that photographing him was illegal.
“I asked, ‘what planet are you from?’,” Conover said.
That was the response of Scott Conover who appeared to take a photo of an on-duty sheriff’s deputy. The whole story is a good read. Click here. The deputy was not entirely unreasonable. He offered to forget the whole thing if Conover would erase the picture. Conover said no dice. The deputy arrested him. So Conover tossed the camera iPhone to his 12-year-old daughter who took more pictures.
Goofy incidents like this are proof that not every police officer has yet heard the message: Camera phones & video & sound recorders are everywhere and there is no escaping them.
It is long past time for anyone–including police officers–to get all bent out of shape over it.
I’m not a fan of having surveillance everywhere, but if I’m in a public place, I have no right to complain if someone takes my picture. Neither does the misguided Deputy McCloud. I am curious to learn if the deputy was able to find a prosecutor who was willing to file the charges.
and here is another . . .
The time is ripe for Missouri to record police interrogations
A new case out of the Missouri Court of Appeals, State v. Ross is another in a series of Highway Patrol cases where the defendant was charged with drug possession after an illegal detention and search of his car. The surprise is not that patrol officers have done this, but that there are prosecutors who–to this very day–still prosecute such cases.
The Defendant, Ross, was driving a rental car and got stopped for speeding. The patrolman pulled him over, put Ross in his patrol car, wrote Ross a warning ticket and told him he was free to go. At that point the legal traffic stop was officially over.
As Ross walked back his car, the officer got out of his car and called out to Ross. Ross and the officer talked a bit. Ross agreed to answer some more questions, mostly related to Ross’s opinions about drug use. Finally, the officer asked if he could search the car. Ross said no, not unless his passenger agreed.
The officer asked the passenger for permission to search the car. He refused. The officer called for the drug dog. An hour after the traffic stop began, the dog arrived and sniffed out marijuana in the trunk.
Ross was arrested, along with his passenger. The prosecutor filed the charge, a defense motion to suppress was heard and the evidence was thrown out by the court because the continued detention of the defendant was illegal. That trial court decision was upheld by the Missouri Court of Appeals on June 3, 2008.
By now, I expect police and prosecutors have figured this out:
When an officer makes a legal traffic stop, finishes the stop, and releases a person–and if they have no further grounds on which to detain them–then THEY MUST LET THEM GO.
They cannot keep a person any longer under the pretense of having a chat between friends, not unless the driver clearly understands he is free to leave and feels no compulsion to stay and answer questions. Such would seldom be the case when one party is an unarmed citizen and the other is a uniformed & armed police officer who has pulled the citizen over by threat of force.
Obviously, this rule is violated even more when the police press even harder and ask to search and are refused. And then they detain the driver or the car while they wait for a drug dog. There can be no excuse for this. None.
The Prosecutors fought this case for over four years before they finally lost. (That’s assuming they dismiss the case now that their evidence has been tossed out for good. As of this writing, they still have not dismissed the case, per casenet in Franklin County #04AB-CR00090).
I hope this is the end of this sort of thing. Better a few miscreants escape punishment than the rest of us live under tyrants. It’s called liberty.
Let’s pretend it’s a clear starry Saturday morning, 1:00 a.m and the cop lights me up and pulls me over. He says I crossed the centerline. I did?
He asks for license and insurance and smells what he will describe in his report as an “odor of intoxicants” emanating from me.
It’s all downhill from there: the one-legged stand test, the walk-and-turn, the gaze test. Then come the handcuffs and a ride in the back seat to the sheriff’s office, where the cop reads some stuff from some form. He says:
So . . . should I blow?
If I say NO, I lose my license for a year.
If I say YES, I provide additional evidence to be used against me in court.
There are some other things I should think about:
A first offense DWI may result in a 30/90 day license suspension, but a repeat offense (or one involving injury or death) will likely cause a license revocation of a year or more. Considering that the punishment for anything more serious than a first offense DWI is probably jail or prison, and a year or more revocation, I might feel there is not much to lose by refusing the breathe test. So I think to myself . . .
Now there is one thing the police won’t tell me: the law gives me twenty minutes in which to try to contact an attorney. At the end of the twenty minutes, I must take the breath test or lose my license for the year.
So with that additional 20 minutes I can try to get some advice. If I can’t reach a lawyer, I still have 20 more minutes to think about taking the test. Of course, after a few beers, my thinking is not as good as it could be, but on the bright side, 20 minutes is long enough to lower my blood alcohol from .084% to .079%. That might help.
One final thing to consider is that–if I refuse to blow–the police may to wake up a prosecutor and a judge to get a search warrant, so they get the blood sample anyway. Or they just take the blood without consent or a warrant and hope it holds up in court. If that happens I am triple screwed.
As you can see, it’s very hard to know whether taking or refusing the test will hurt or help your case. Sometimes you won’t know until it’s too late.
If you can reach an attorney during your twenty minutes (good luck on that), he or she can help you decide. Don’t rely on this post because it is too short to address all the issues involved. If you want to call me, my number is in the book. Or just avoid the whole thing and have somebody else drive you home.
PS: Some folks will try anything:
This blog is written for educational & entertainment purposes. It is not legal advice.
Reading this blog and/or submitting comments will never create an attorney-client relationship. If you have a specific legal problem, consult with an attorney.
The Missouri Supreme Court requires the following notice:
