The FBI reported in 2009, 13.7 million people were arrested for suspected criminal acts equating to 1 of every 22 Americans. These statistics do not include arrests relating solely to traffic matters, thereby showing almost all Americans will interact with the police at some point in their lives. As a former Policy Administrator for PA's third largest police department, located in the state's most dangerous area (North Philadelphia), I was able to observe officers apply criminal laws daily and often imperfectly. Police agencies must comply with many state and federal rules when discharging their mandates and this complex legal tapestry provides avenues to defend against a prosecution since the precedents (cases) are confusing and conflicting. I combined my legal training and previous work experience with the police department to create this unique legal guide showing you how to best avoid arrest and prosecution from both a police investigator's and defense attorney's perspective.
RULE NUMBER 1 when dealing with the police is to remain silent whenever possible. While the police do not have the right to demand your personal information without a valid reason there are circumstances where the law requires you to divulge this material. Give accurate or no information, because lying is a crime. The following situations mandate providing the police with your personal information: assault, theft, burglary, wildlife violations, underage alcohol purchase, motor vehicle operation, or they believe you have information to relating to a serious crime.
If the police want more:
1. Clearly state you want to speak to an attorney before continuing because nothing is ever "off the record" or secret
2. Unless your attorney otherwise advises, it is best not to answer any questions because answering a few is viewed as deceptive and can be used against you.
3. The police's decision to arrest, is solely based on available evidence so do not give them more.
No You May Not Search
The police can only search you/your property in very specific situations and if you refuse they cannot force compliance unless:
1. You consent to a search
2. They have a search warrant
3. They are protecting evidence before it is hidden/destroyed
4. Incident to arrest
5. Containers/area within the immediate reach after an arrest
6. Vehicle passenger after driver lawfully arrested
7. Police are actively pursuing you
8. A protective sweep for residential arrests,
9. The search area is open fields and not curtilage
10. Borders (airports/trains)
Federal constitutional search law alone is extremely complex before supplementing those protections with state rules. Police must clearly articulate why they want to search, what they hope to find, and where the item(s) are. In sum, not consenting to a search puts more pressure on the police to find incriminating evidence, show they did so properly, and can ultimately be the difference an acquittal and a conviction.
It's Not Right, But I Will Go
It is very important to remember when interacting with the police, non-compliance or resistance, will not be a successful strategy for resolving a situation and will only aggravate it. Regardless of whether you agree with the officer's decision to stop, question, and/or arrest you, the best course of action is to follow his/her directions. Even if you are wrongfully arrested/charged, by resisting the officer's commands you are committing another serious crime, which can lead to a conviction despite an acquittal or dismissal of the original underlying charges. Further, the police will view you as more threatening and may cause you serious bodily injure including death. Finally, if the state offers video or officers/witnesses evidence a judge/jury could easily find you unsympathetic/untrustworthy hurting your defense. The best way to avoid a conviction and to not violate another criminal statute is to follow the officer's directions and allow your attorney to speak on your behalf
Can I Go Now?
One of the most important and easiest tests for determining if you are under arrest is simply to ask the officer if you are free to leave. If the officer says yes, you should leave as soon as humanly possible. If the officer says no, then assume you will be placed under arrest. While officers will not arrest everyone who is not initially allow to leave the scene where an investigation is occurring, this answer is a strong indicator the police view you as a criminally responsible party. Usually the situations where the police detain someone without an arrest is for: traffic stops, drug/alcohol sobriety tests, and/or if the subject is an emotionally disturbed person. Therefore declining to speak with the police, explain what happened, or try to cooperate by answering their questions at this point is the safest method to protect your rights and freedoms.
What's The Charge?
The most important factor after you are arrested is to determine what the charges are. This is very important because police often issue different charges then the ones they originally endeavored to investigate. When the police are confronting you, it is usually to initiate an investigation, and the only information available to law enforcement is reports from others and their personal observations. Since, the police are not often aware the exact location or nature of incriminating evidence and if you speak with them, even to "clear things up", you can end up creating a larger problem for yourself. Further, by learning your charges you can start noticing and thinking about possible defense strategies. For example if you are pulled over for suspicion of DWI but are only charged with not obeying a traffic light signal, this shows the police view this case as weaker. Do not forget whatever charges are initiated argumentative and confrontational behavior will not improve your situation.
This is the most commonly asked question I receive from my clients. Usually, people either do not know why they were arrested or do not understand how the police developed sufficient reasonable suspicion or probable cause to detain them. The following sections provide general and offense specific methods and common practices the police utilize to develop reasonable suspicion and probable cause. It is important to understand how the police view, evaluate, and proceed with a situation to best avoid being arrested and having your freedom jeopardized.
Why Me (DUI/DWI/DAI)?
Why I Was Stopped
1. Turning with a wide radius
2. Straddling the center line
3. Almost striking vehicle/object
4. Striking vehicle/object
6. Driving on other than a designated highway
7. Driving on a highway with an inappropriate vehicle (ATV, scooter, bike)
9. Speed more than 10 miles below the posted limit
10. Speed more than 10 miles above the posted limit
11. Stopping without cause in a traffic lane
12. Following too closely/tailgating
14. Tires on center or lane marker
15. Erratic braking
16. Driving into opposing/crossing traffic
17. Signaling is inconsistent with driving actions
18. Slow response to traffic signals
19. Stopping inappropriately (other than in lane)
20. Abrupt/illegal turns
21. Accelerating/Decelerating rapidly
22. Headlights off/damaged
23. "Appearing to be intoxicated"
Why Me (Drug Offenses)?
Arrest factors include:
1. Whether arrested person will be a confidential informant
2. Seller/buyer is a confidential informant
3. The area is a zero-tolerance or a special enforcement zone/event (concerts, sporting events, parades, schools)
4. Many different people visiting the same location at all hours for short time periods (20 cars a day go to the same house everyday)
5. Smells when police approach/stop you
6. The vehicle's axle is too low or is reinforced (extra strength shocks on a routine delivery vehicle)
7. Although illegal police make arrest decisions based upon race/gender by simply looking for anything unusual. For example, a middle aged white lady driving a Lexus at midnight in a high traffic predominately minority community would raise alarm bells.
8. Out of state vehicle located in high drug trafficking area
9. Erratic, confrontational, abusive, or other inappropriate attitudes (cannibal attacks after ingesting bath salts)
What Are You Looking At?
Here are some things the police are looking for when pulling over a driver, initiating an investigation, or they suspect illicit contraband. 1. Flushed face 2. Red, watery, glassy, and/or bloodshot eyes 3. Odor on breath 4. Slurred speech 5. Fumbling with wallet while attempting to get license 6. Failure to understand the officer's questions 7. Staggering/Stumbling 8. Leaning on car/object for physical support/balance 9. Combative, abusive, argumentative, laughing, or other inappropriate attitudes 10. Soiled, rumpled, or disheveled clothing 11. Disorientated 12. Inability to follow directions
The Best of The Rest
Here are some general guidelines for interacting and successfully navigating the criminal justice system.
1. In PA and NJ you do not have to consent to a field sobriety test only a blood, breath, or urine test
2. If you are charged with forgery, have your attorney sign all police and court documents on your behalf
3. Always make sure your attorney requests your complete criminal extract/record before trial. In PA, the state is required to distribute this document in its entirety to defense counsel and failure to do so can lead to continuances against the state and/or an outright dismissal.
4. Do not tell the cops there are worse criminals and bothering you is a waste of time. This sentence only annoys the police officers more and will only negatively impact your situation.
5. In PA, if you are in handcuffs outside your vehicle and did not consent, the police are prohibited from searching your vehicle. If they do so anyway, anything found will most likely be excluded at trial.
Additional resources provided by the author
1. US Department of Transportation, National Highway Traffic Safety Administration (NHTSA)