Friday, October 31, 2014

The Silent Treatment: On (Not) Talking To Police - Sean McAllister Offered Insight To This

The Silent Treatment: On (Not) Talking To Police

Whether you’re carrying anything illegal or not, flashing police lights in your rear-view sets the heart racing and adrenaline pumping for even the most unflappable among us. How the next few minutes unfold will be determined by a host of factors, many within your control.
A big part of not getting arrested comes down to little more than common sense; If you’re swerving all over the road smoking a blunt with four friends in the car at midnight, you might as well paint “arrest me, please” on your rear windshield.
The Fourth Amendment to the U.S. Constitution guarantees citizens protection against unreasonable searches and seizures of their person and effects without probable cause. This is the legal standard officers must meet in order for the state to get a conviction. But asserting these rights during the actual encounter won’t necessarily protect you in the moment.
“There’s the legal rules and then there’s the reality of the way police act,” Denver criminal attorney Sean McAllister said in an interview. “The bottom line is police pretty much do what they want.”
If an officer lights you up, put on your turn signal, turn off the radio and promptly but safely pull the car over to the right as far over as you can. Turn off the engine, roll down your window and place your hands at 10 and 2 on the steering wheel. Do not make sudden movements or reach for your identification until asked. These steps are intended to put the officer at ease as he or she approaches your vehicle. There are dangerous people out there, so subtle indications like these decrease the odds of the encounter escalating.
“If the officer says ‘get out of the car, I’m searching your car I have probable cause,’ whether they do or not is something the courts will determine later, but you certainly don’t want to interfere with them in any way at that point,” McAllister says.
You’re looking for a brief, frictionless transaction with the officer. Be sure your license and registration and insurance are current as required by law and be able to prove it. Lacking these documents will only prolong the encounter and give you a chance to say or do something incriminating. Be polite — “yes, officer”, “no, officer.” Keep your answers as brief as possible. Remember, arrested or not, you have the right to remain silent. Besides giving them identification and your vehicle registration, you’re not obligated to answer questions about where you’re going, where you’ve been, what your favorite color is or anything else they might ask.
“You have to give the officer your ID and proof of registration if requested,” McAllister said. “Beyond that you don’t have an obligation to do anything.”
McAllister even advises against taking roadside sobriety tests, and says despite what an officer might say there is no legal consequence for refusal. He noted that 30 percent of people who fail a roadside exam were actually sober. Taking the test can only harm you in court, giving the district attorney a much stronger case with which to convict you.
“Police will tell you if you don’t agree to one I’ll arrest you for DUI and kind of try to threaten you into taking the test, but your consent really needs to be voluntary;” McAllister said. “Admitting to marijuana use in the recent past would also not be very smart. I don’t tell people to lie, but you don’t have to say anything if the cop asks the last time you smoked marijuana.”
Some officers might try to buddy up to you, to convince you they’re on your side or promise they’ll put in a good word for you with the judge or prosecutor. Don’t take the bait. In a roadside pullover situation, the cops are not your advocates. Their job is to gather information that can be used to arrest and convict you, and some will use manipulative tactics to do it. If they haven’t searched your car yet on their own volition, they might be waiting for you to unwittingly admit to something that gives them legal permission to search.
“My personal opinion is, when you get to the point of ‘when’s the last time you smoked marijuana?’, ‘How often do you use marijuana?’ I would not answer any of those questions,” McAllister said. “You should never give them any incriminating evidence. Anything you do or say could be incriminating.”
If you are carrying contraband on the road, the more distance put between you and it the better. Do not put it in the glove compartment, as you’ll probably need to open it to retrieve identification documents. And don’t keep it in your pocket, as finding it during a “weapons pat-down” would certainly give the officer iron clad probable cause to search the rest of your vehicle and arrest you.
But be warned: keeping your stash in the trunk won’t necessarily protect you from the powerful nose of a drug-sniffing dog. In the 2005 U.S. Supreme Court case Illinois v. Caballes, the high court ruled 6-2 that dogs could be used at the scene of a roadside pullover without probable cause on the grounds the dogs were being used to find something illegal. The ruling, however, does not give an officer the right to indefinitely detain you while a dog can be retrieved, according to FlexYourRights, a nonprofit civil liberties advocate group.
If you feel an officer might be detaining you without cause, just ask, McAllister says.
“Ask ‘Am I being detained? Am I under arrest? Am I free to go?’ “, He said. “If they say you’re free to go then you leave, but if not, it means you’re being detained. That’s when you might want to assert your right not to say anything else.”
The vast majority of roadside pullovers end without incident, and the vast majority of police officers are hard working men and women trying to do right by their community. But it’s the outlying scenarios that require the most preparation, especially when your freedom is on the line.

Mikayla Hellwich
Law Enforcement Against Prohibition
Media Relations Associate