When a little knowledge is dangerous…

A little over a month ago, a blog post by a law student got a lot of attention on some of the criminal defense blogs that I read. Mostly it was because he was describing, with great pride, an interaction with the police where his superior knowledge of the law stymied the officer’s efforts to ticket him, and some of the experienced lawyers who read his post thought that he was being kind of ridiculous – refusing to greet the officer (because he wasn’t legally obligated to do so), explaining that the state law about over-tinted windows didn’t apply to him because his car was registered in another state, etc…

It’s not that he was wrong, really, just that he was not necessarily helping himself out by picking that particular hill to fight on. It can be satisfying to know your rights and flex them, but it can also be an example of a little knowledge being a dangerous thing.

(Jeff Gamso has more, as he talks about the circumstances during which affirming your rights are useful: when the police are asking to search your house, or if you’ll answer questions during an investigation. Not necessarily when one says, “Good afternoon” during a traffic stop.

Anyway, I was working on some materials we have in the office today, and I found a document called “Yes, The Police Can Do That”. It reminded me of this blog post, and the converse to it – in addition to knowing what the police can’t do, it’s pretty useful to know what they can. There are a lot of people who, like the law student, assume that they’re the smartest guy in the room (any room), and some of them, unlike the law student, won’t even have the facts on their side.

As a public service, here’s “Yes, The Police Can Do That”. I think David wrote it:

How the police can stop you

1. If there is reasonable suspicion that you committed a traffic violation
   1. Ask you to provide your name, address, date of birth, and a form of identification
   2. Ask the driver and the passenger to get out of the car
   3. Ask for information about auto registration and insurance
   4. Briefly detain you to check for warrants
2. Police can handcuff you for “officer safety” (even through you’re not under arrest)
3. Stop, detain, and question you if there is reasonable suspicion that you committed, are going to commit, or are attempting to commit a crime
4. Ask you questions, ask for your cooperation, or request your consent to search “as long as a reasonable person would feel free to walk away or ignore the question” and you continue to talk, cooperate or consent (known as “Knock & Talks” and “consensual encounters”)
5. Arrest you for an outstanding warrant
6. A game warden can stop and board your boat

What the police can do when they have a search warrant

1. Kick down the door (a “dynamic entry”) without knocking or giving you a chance to open it, aim shotguns at all occupants’ heads to control the situation, and force everybody to lay face down in the living room as the search is conducted
2. Rip through your entire house and not clean up the mess when looking for the items contained in the search warrant
3. Confiscate your computer, laptops, CDs, external hard drives, etc. if they believe it contains incriminating evidence
4. Listen to your telephone calls through a wiretap (trap and trace device)
5. Obtain a real time report of who you are calling and you is calling you (pen registers & ESN readers)
6. Install a mobile tracking device to track a person, vehicle, or object’s movement

What the police can do even without a search warrant

1. Search anything, anywhere for as long as they want if you give the police permission and never revoke your consent
2. Record you on videotape and audiotape without telling you and without asking for your permission (there are video cameras in the patrol car and microphones on their lapels. Be a gentleman – the jury is listening.)
3. Go through your trash if placed by the curb
4. Look through the windows in your car or home if the officer has a legitimate presence for his vantage point (“plain view”)
5. Have a dog sniff your luggage or your car
6. Fly over your property with a helicopter and take pictures
7. Enter public areas of buildings to serve a subpoena
8. Enter your house if you open the door and they see something illegal
9. Seize anything illegal (without a warrant) in plain view
10. Quickly pat the outside of your pockets and clothes to check for weapons (but they can’t reach in your pocket unless voluntarily tell them that you have a weapon or contraband)
11. If you’ve been arrested, the police can impound your car and then search everything inside inside the glove compartment, the trunk, luggage, the gas tank, seat cushions, etc.
12. If you’ve been arrested, the police can search your pockets, your clothes, and your person
13. If you’ve been arrested, the police can search the vicinity of the area (your wingspan) to see if you discarded a weapon or contraband
14. Record your telephone conversations if you call from jail
15. Place an undercover informant in a jail cell with you in an effort to see if you say anything incriminating
16. Use undercover agents to offer illegal proposals (no, this isn’t necessarily entrapment)
17. Drug test your children if they participate in extracurricular activities at school
18. Kick down the door if exigent circumstances exist

Interrogations

1. The police are allowed to lie if it helps you confess to a crime
   1. They can lie about the existence of evidence (e.g. the person that did this almost got away with it but they left a hair at the scene, we caught the whole thing on videotape, there were two eyewitnesses, etc.)
   2. They can lie about evidence linking you to the crime (e.g. we found your prints, we found your DNA, the person picked you up out of a line-up, etc.)
   3. They can lie about a co-defendant admitting his guilt and ratting you out
   4. They can lie about scientific testing procedures (e.g. we can prove you were there using this new spectral imaging satellite GPS nanotechnology)
   5. They can lie about speaking to your family members, friends, the victim as far as what they want you to do
   6. They can fudge about how confessing will result in less punishment (to a certain extent.)
2. Record you on videotape and audiotape without telling you and without asking for your permission (police want to interview you at the police station between there are hidden cameras in the ceiling)
3. Interview you without reading you your Miranda rights (the most common practice)
4. Interrogate you for 5, 10, 15, 27 hours
5. Can refuse to allow an attorney to stop the interrogation
6. Can refuse to tell the suspect that his family has hired an attorney to stop the interrogation
7. Will ask you all sorts of incriminating hypothetical questions (“why would we find your fingerprints there?”; “why would she say that?”; “what motive would she have to lie?”)
8. Will offer you a Coke, food, and a restroom break because i) they want you to trust them, and ii) it proves that you were there on your own volition
9. May use good cop/bad cop (very effective) or simply try to be your best friend to “help see your side of the story” so we can possibly avoid filing charges
10. Can interrogate you for hours, take you home, and then get a warrant for your arrest the next day