A must-read for the criminally-accused! Understand the police officer's playbook to help your case.
One might think that because the police are not personally involved in the matters they are called to investigate that they write neutral and objective accounts of their investigations. One would be dead wrong. Any case that comes to court is preceded by an arrest; an arrest that must be justified. Police often highlight the "bad" evidence and disregard the "good" evidence in their police reports so that their actions are not questioned by prosecutors, judges, defense attorneys, and juries. Indeed, just last week, a San Francisco man was awarded $10 million dollars by a federal jury because police officers had framed him for murder (that he was subsequently acquitted of). (http://www.newsweek.com/san-francisco-man-framed-police-wins-10-million-damages-876276). While body cameras can help build true objectivity into police investigation, such footage is all too easy to manipulate. For example, most body worn cameras have a sound on/off function that allows the officer to manipulate when the audio recording is functioning. So, what's your remedy? It is important that you begin your investigation as soon as possible to capture what really occurred. Go back to where the incident occurred and determine if any of the local businesses had surveillance cameras set up that captured the events. (Note: most surveillance records over itself after 2 weeks!) Hire an investigator to take witness statements from any eye-witnesses. Save your cell phone records and request them from your provider.
Interrogation occurs when you are being questioned expressly or when officers speak to you expecting a response. Police officers are trained to create psychological states in their subjects that increase the probability that the subject will confess. One such technique is called the Reid technique, where the officer attempts to get an unwilling subject to divulge information. There is no such thing as friendly conversation with a police officer. Let me repeat that - there is no such thing as friendly conversation with a police officer. "I didn't push her" means the officer will write "Subject admitted to being present at the time of the crime" in his police report. So, what's your remedy? Whenever a police officer asks you a question, respond "Am I legally required to answer that?" If the officer says yes, answer the question and/or say "I'm invoking my right to remain silent." If the officer says no, don't answer. If the officer asks you another question, respond again "Am I legally required to answer that?" If you are in custody (either you've been told you are arrested or a reasonable person would not feel free to leave), then say "I'm invoking my right to an attorney," and the officer must stop questioning you.
Police officers can lie to you with impunity. They can tell you that they have your fingerprints at the scene, that you are on video committing a crime, or that your DNA is present at the scene of the murder, even if none of that is true. Don't believe anything a police officer tells you. Let me say that again - don't believe anything a police officer tells you. There is no incentive for them to be truthful with you. They figure if they say they have your fingerprints, you are more likely to confess and that an innocent person would simply deny it; so, they either catch the culprit by lying or no harm no foul. Obviously, the studies in the field of psychology have demonstrated that false confessions are common and innocent persons have been exonerated from death row! The second way police officers lie is in court. Police officers will rely on their police reports, which were slanted in their favor or against you, when they testify. Judges often let police officers get away with such testilying. It is often difficult to catch police officers in their lies unless there is third-party video evidence to the contrary. So, what's your remedy? Don't believe what the officers tell you and invoke your Fifth Amendment right to remain silent. Say, "I'm invoking my right to remain silent." Often times, the criminally accused want to know what the officer's know and get caught up in a conversation that ultimately hurts your case. You'll get their police report in due time; it's not worth hurting your case and strengthening their case by engaging them in conversation. As to testilying, get your investigation started early and get that surveillance video to prove the officer is lying!
Gathering Intelligence Via Infiltration
Technology has allowed police to invisibly infiltrate our daily lives. A string-ray is not only an animal, it is a private corporation from Florida. They manufacture a fake cell phone tower that collects all the information a real cell phone tower would as it interacts with your phone. It can geo-locate you and in theory could intercept your actual conversations. Several local police agencies have them and are using them to track all sorts of data, not only criminal activity. Fake social media profiles are another way the police are gathering intelligence. There are officers who spend the majority of their day going "under-cover" online and posing as a scantily-clad young female trying to gain access to friend-only social media posts. Open-source information is another source of information for officers. Officers are browsing Youtube and other social media sites to stay up to date on local happenings. So, what's your remedy? Stop posting incriminating things on social media! Better yet, delete your social media accounts; don't take the risk something you post will be misconstrued by law enforcement.
The United States Supreme Court case law says that the officer's subjective state of mind is irrelevant for evaluating whether a Fourth Amendment violation has occurred. Justice Ginsburg recently hinted in a concurring opinion that she thinks that state of the law should be re-examined. I agree. But, let's deal with what the state of law is. I had the sobering experience of speaking to a police officer who told me "I can stop anyone, at any time, for no reason at all. Here's how I do it, I follow their vehicle until they violate a vehicle code, or I just wait until a BOLO (be on the lookout) comes in for a car somewhat matching the description and I pull it over to 'rule it out'." What about the Fourth Amendment? Unfortunately, it has been eviscerated, and only recently has the Supreme Court trended toward giving it its teeth back. (Riley and requiring a warrant for cell phones, among others.) So, what's your remedy? This is a tough one. You could make an equal protection argument under the Fourteenth Amendment but that probably won't get you very far. We really need to change the law. For the lawyers reading this, I think we need to at least make a good record about what the officer's subjective intent was in every motion to suppress because that matters for whether the Court will impose the exclusionary rule. How many times have you shown a violation and the Prosecutor argues that since there was no bad faith the exclusionary rule shouldn't apply? How else can we show bad faith than going into the officer's subjective state of mind?
Implied consent is a legal rule that Courts have created that pretty much gives police officers carte blanche to do whatever they want as long as you don't make a fuss about it. For example, police officers knock on your door, you open it, and step backward. The officers come into your home - have your rights been violated? Implied consent says no because you didn't object to their coming in and you stepped backward, impliedly consenting to their entry. What hogwash! But, that's the law. Implied consent rears its ugly head everywhere. From searches, to seizures, to entries into homes, to blood draws! So, what's your remedy? Say it loud! "I do not consent to [insert police action]!" When an officer begins to pat you down, "I do not consent to a search." Then, dictate out-loud what he is doing, "he's putting his hand in my right pocket!" The way to thwart implied consent is to expressly revoke your consent. I do not consent!
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