SCAPA are not lawyers and we do not claim to offer legal advice.
Please seek the counsel of a professional licensed lawyer if you
need legal advice. We are not responsible for any action taken
by you as a result of the information provided here.
Escorting and out call
performance is not against the law. Prostitution is
against the law (unless you work in a Nevada brothel). But
sometimes police set up stings to arrest escorts and outcall
performers for prostitution, especially here in Las Vegas. If
you are an escort or outcall performer, you will need to know
the following in case you have an encounter with a police
officer. The following applies nationally as well.
HIGHLY RECOMMEND THAT YOU READ THIS SECTION THOROUGHLY. *
This information is reproduced directly
from "Beat The Heat" by
Katya Komisaruk and Tim Maloney.
Law Enforcement Agents
There are three
levels of police-initiated encounters. The second two—which are
more serious—require a certain level of proof before the police
can undertake them.
When the police
are conducting an investigation, but don’t have enough evidence
to detain or arrest you, they’ll try to get you to chat with
them. They may call this a “casual encounter” or a “friendly
conversation,” etc. If you cooperate, you’re likely to give
them the very facts they need to arrest you.
If an officer
tries to start a conversation with you, find out whether you’re
free to go. If you are, then you should leave immediately,
without saying anything else.
officer will ask you to come to the police station “to answer a
few questions.” 1 Don’t do it. There’s a good chance you’ll
leave the station in handcuffs. Just tell the officer no. If
you’re outside, walk away; if you’re inside, close the door; if
you’re on the phone, hang up. Then contact a criminal defense
lawyer right away.
you walk into my parlor?" said the spider to the fly. The
Spider and the Fly, line 1, Howitt, Mary.
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Detention is a
short period of custody, often occurring while the police are
deciding whether or not to arrest you. In order to detain you,
the police are supposed to have a reasonable suspicion that
you’re involved in a crime. This suspicion must be more than a
mere hunch, and the police must be able to put their reasonable
suspicion into words. That’s why it’s sometimes called an
“articulable suspicion.” For example, if an officer stops an
individual, it would not be enough for the officer to be
thinking, “He looked like he was up to something.” The officer’s
thoughts would have to be more specific, such as, “He kept
looking in the window of the jewelry store, then walking away,
then coming back and peering into the store again. And he
wasn’t from the neighborhood. He seemed nervous and agitated,
so I thought he might be planning a burglary.”
reasonable suspicion is based on multiple factors, such as: the
suspect matches the description of a wanted criminal; the
suspect drops an object after seeing the police; the suspect
runs away after seeing the police; etc.
supposed to last only a short time and should not involve
changing location, such as going to the local police station.
It may be
useful later on, when you’re fighting the case in court, to have
asked the officer why you’re being held. If the officer cannot
articulate his suspicion, you may be able to show that your
detention was unlawful. Obviously, this tactic will work better
if you have witnesses who will testify that the officer made an
inadequate reply. (Without witnesses, it’s just your word
against the police officer’s, if the officer lies about what he
If you do ask
why you’re being held, memorize the officer’s response. Never
tell a cop that he doesn’t have reasonable suspicion. It won’t
make the officer let you go, it will only annoy him and remind
him to think up a good reason for having detained you, before he
writes his report.
detention, the police are entitled to pat the outer surface of
your clothing, to check for guns, knives or other weapons. If
you’re detained while driving, the officers can look inside the
car for weapons (but not in the trunk). A detention search is
conducted only to ensure that the detainee has no weapon. While
detaining you, once the police have patted you down and haven’t
felt anything that could be a weapon, they cannot then examine
the contents of your pockets. However, they may try to trick
you into “voluntarily” allowing them to search further than
they’re entitled during a detention. The officer will ask you
to show him the contents of your pockets, bags, trunk, etc. The
request will usually sound like a casual order, especially when
the officer uses a commanding tone of voice:
see what’s in your bag.
• Want to pop open the trunk for me?
• How about showing me what you’ve got in your pockets?
permission to law enforcement officers to search. It’s
important to state your refusal clearly (rather than just
shaking your head), so that the police can’t misunderstand.
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You can be
arrested by an officer or a citizen who sees you commit a
crime. And even if they didn’t see you, the police can arrest
you if they have probable cause to believe that you’re involved
in a felony (or sometimes a misdemeanor, depending on the type
of crime and the jurisdiction). The facts adding up to probable
cause vary, according to the nature of the case. Say, for
example, the police received a call from a store owner that
someone matching your description had just spray-painted lots of
graffiti all over the front of his store. The police drive to
the area and notice you running down the street, about a block
from the store, holding a can of spray paint in your hand.
Under these circumstances, the police would have probable cause
to arrest you. They don’t need an arrest warrant as long as
they have enough facts for probable cause. Probable cause is
more than a reasonable suspicion, but less than the level of
proof required to convict you at trial (proof beyond a
under arrest, the police can search your clothes, your body,
your bags, your car, etc. In addition, after arresting you, the
police can search your “wingspan,” the area within your
immediate control. Your wingspan could include a whole room, if
the room is small enough that you could lunge to any part of it.
frequently turns into an arrest, particularly if you answer the
officer’s questions. Physically resisting the police will
almost always turn a detention into an arrest—even gently
touching a police officer can result in charges of assault or
battery on an officer. If the police find a weapon or see drugs
while detaining you, that’s likely to provide the probable cause
necessary to arrest you. For instance, the police might detain
you to see whether you match the description of a particular
crime suspect, and then discover an illegal knife while
pat-searching you. Or the police might pull you over when
you’re driving and detain you to write a ticket, and then spot
an open alcoholic beverage container in your car. Once you’re
under arrest, the police are allowed to search your clothes and
body and to go through your bag and/or vehicle.1
you're arrested in your car, the police are allowed to search
the passenger compartment, but not the trunk (unless they
impound the car).
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Basic Response to Detention and Arrest
As soon as you
perceive that you’re not free to go, say the Magic Words: I’m
going to remain silent. I would like to see a lawyer. By
invoking your rights at the very outset, you make it much harder
for the police to trick you into saying things that can be used
against you in court.
remaining silent is hard to do. It’s human nature to try to
talk your way out of trouble. Nervousness makes people want to
talk, too. Naturally, the cops are aware of these tendencies
and use them to manipulate you into answering questions. It
takes real self-control to exercise your right to remain silent,
but it’s the best possible thing you can do for yourself, in
terms of criminal defense strategy.
biggest mistake that people make is waiting for the police to
prompt them. Since the cops’ goal is to get you to provide
information, they will carefully avoid giving you a cue that
reminds you to be quiet. So as soon as you confirm that you’re
not free to go (by asking or by trying to leave), say the Magic
Words: I’m going to remain silent. I would like to see a
Do not wait for
the police to say “You’re under arrest.” They do not always say
it and they’re not required to do so.
Do not wait for
the police to read you your rights. They may not bother to do
it (and they’re not required to read you your rights unless
you’re under arrest and they want to question you).
the best defense is a good offense. Say I’m going to remain
silent. I would like to see a lawyer, early and often: Don’t
worry if the police make fun of you for saying the Magic Words
before they’ve formally announced that you’re under arrest or
before they’ve read you your rights. This teasing is merely
another trick, to make you unsure of yourself.
yourself is critical. It’s hard to have the right moves in an
emergency—like an arrest situation—if you haven’t practiced.
Soldiers, during their training, are drilled so that they
automatically give only their name, rank and serial number when
they’re being interrogated. You need to develop the same
reflexes, because if you’ve been taken into police custody,
you’re definitely in enemy hands. Your job is to give only your
name and address, then say the Magic Words and stop talking.
Because in this situation, the police are not on your side. The
officers may just be trying to find a reasonable suspect (if not
the actual suspect), or they may dislike your ethnicity or
attitude. Whatever the circumstances, once you’ve become a
suspect, the smart thing to do is to say: I’m going to
remain silent. I would like to see a lawyer.
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Why You Should Remain
Silent and Ask to See a Lawyer
you’ve probably had encounters with the police in which you did
explain everything and the police let you go…or at least the
consequences (a traffic ticket or a misdemeanor conviction) were
no worse than they would have been had you kept silent. And it’s
true that in some cases, it doesn’t matter whether you talk to
the police or not. However, on those occasions when your luck or
skin-color or clothing or income or politics are against you,
talking to the police is more likely to result in going to
prison, than in going free. And you can’t necessarily tell in
advance how much trouble you’re in. You might think you’re being
pulled over for making an illegal left turn, when in reality the
cops are planning to take you in on felony charges.
though you may be really clever, you’re at a huge disadvantage
in trying to maintain control over the conversation when you’re
being questioned by the police. It’s an event that’s relatively
rare for most of us, and one in which we’re generally anxious
and distracted. By contrast, this situation is extremely
familiar to the police. It’s what they’re trained to do, and
they get more experience at it every day. So even the least
talented cop eventually gets pretty good at questioning people.
It’s arrogant to think that you can win at word games with the
police, no matter how good a talker you are. The smart money is
on saying only the Magic Words: I’m going to remain silent. I
would like to see a lawyer. These phrases operate as a verbal
condom, adding a critical layer of civil rights protection
during interactions with cops.
people worry that if they don’t cooperate fully with the police
and answer all their questions, the officers will increase the
charges against them. This is a mistaken assumption. Higher
charges are more likely if you give the police additional
information. And in any case, the offenses that the police
choose are mere suggestions. It’s the prosecutor who actually
decides what crimes to charge against you, based on the
information in the police report. So, the less you say, the less
material the prosecutor has for thinking up charges.
worry that if they remain silent and ask for a lawyer, the
police will be annoyed and will take them to jail for sure,
instead of releasing them on promise to appear. And it’s true
that refusing to answer questions and asking for a lawyer can be
irritating to the police. But there are two reasons to remain
silent and ask for a lawyer anyway:
The police may not have the power to release you. For
example, warrants, probation violations, or immigration
holds normally require the police to take you to jail. And
if you’re arrested for a felony, the police definitely can’t
release you. Yet you won’t know while you’re being
questioned, whether the police intend to file felony charges
or misdemeanor ones. And the police will encourage you to
think that you’re only facing a misdemeanor, even if they
fully intend to charge a felony. That’s what happened to
Use a Pie, Go to Jail.
Insisting on your rights may mean that the police choose to
keep you in custody, rather than releasing you. But spending
a few hours or even a few days in jail (until you can bail
out or a get a judge to release you), is better than
spending a few years in prison—and that’s more likely to
happen if you spoil any chance of fighting your case, by
answering police questions without talking to your lawyer
It’s harder in
the short run to remain silent and ask for a lawyer, especially
when the police seem visibly aggravated with you, but it’s much
safer in the long run.
custody also worry that if they don’t answer all questions posed
by the police, the officers will treat them more roughly. But
being afraid of the police isn’t a good reason for failing to
use your constitutional rights. It’s true that the police
sometimes beat people, but it’s rarely because the suspect
refuses to answer questions. Police violence is principally the
result of racism, politics, and just general aggression on the
part of the police officer, along with tolerance for such
misconduct on the part of the police department—not the result
of the victim’s behavior. So, if you’re dealing with aggressive
police officers, you should still protect yourself by
respectfully saying, I’m going to remain silent. I would like to
see a lawyer.
Using a humble
tone of voice and facial expression, as well as addressing the
officer as “sir” or “ma’am,” can be very helpful because police
officers tend to be extremely alert to any sign of disrespect
(real or imagined). If an officer gets the idea that you’re
giving him attitude, he’ll want to teach you a lesson.1 Of
course, speaking respectfully doesn’t come naturally for
everyone. Some people speak arrogantly out of habit (and may not
be aware of how they sound). Others feel that being humble to a
police officer simply costs too much in terms of personal pride
or political integrity. And some just can’t resist baiting those
in authority.2 It’s worth practicing the Magic Words with a
friend, or in front of a mirror, so that you develop enough
control over your voice and expression to say them properly
under stressful circumstances. If you’re going to be provocative
toward people with guns and clubs, it should be because you
choose to do so, not because you can’t help it.
important to remember that just because police misconduct is
predictable, that doesn't mean that you deserve it. Even if you
fight or flee, the police are not legally or morally entitled to
beat you up. They're supposed to use only as much force as
necessary to restrain you. And they're not supposed to react to
verbal provocation. See
Reporting Police Misconduct.
2. My friend David Solnit, in custody at the King County Jail
in Washington, was asked to sign a form during booking. All he
said was "no," but he said it with so much attitude that six
cops promptly piled on him.
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What to Watch Out For, When
you Remain Silent and Ask to See a Lawyer
When you’re in
custody, once you say I’m going to remain silent. I would like
to see a lawyer, the police are not allowed to question you—but
you actually have to remain silent. You can’t talk to the police
about anything, not the weather or sports or movies. You can’t
ask simple questions, like “When do I get my phone call?” 1
Don’t make small talk. Don’t make jokes. Silent really means
exception to remaining silent is giving your name and address.
You will have to provide that information if you want to be
“released on promise to appear” (the promise to appear is a
document, usually a ticket, telling you when to come to court—Sample
Promises to Appear). Do not give any other information, such
as your social security number, the names of family members,
employment data, etc. This is important, because one of the most
effective police interrogation techniques is to relax the
subject by posing safe, normal questions—the kind that come up
on countless forms and applications. The cop will seem bored and
business-like, just “getting through all the paperwork.” An
experienced officer will then move very gradually into questions
about the people and incident under investigation, without any
pause or change of tone. So don’t let them get you on a roll,
obediently answering “safe questions.” Instead, mentally
rehearse exactly what information you’re going to give: you’re
going to say only your name and address, nothing else. If you
don’t set that limit ahead of time, you’ll find yourself
answering all sorts of questions, some of which are bound to
If you’ve been
arrested and you break your silence to give your name and
address, immediately follow-up by repeating the Magic Words: I’m
going to remain silent. I would like to see a lawyer. This
restores your constitutional protection, making it illegal for
the police to question you further.
There are two
common misconceptions when it comes to remaining silent:
1: Many people assume that if they say I’m going to remain
silent, I would like to see a lawyer or “I take the fifth,” then
nothing they say afterward can be used against them. That’s a
ghastly mistake. Saying the Magic Words merely keeps the police
from questioning you after arrest, and only as long as you stay
silent. If you break the silence by saying anything at
all—whether it’s a statement or a question—your words can be
used against you and you’ll have destroyed the effect of the
Magic Words. You’ll have to say them again to be protected from
2: Sometimes people get confused and think that informal
conversation is okay, as long they don’t “make a statement” or
“give a confession.” That’s dangerously wrong. Anything you
say—anything at all—can be used against you, even questions,
casual remarks, and jokes. It doesn’t matter whether your words
are written down or spoken, or whether you’re in custody or free
to go. And your statements can easily be twisted, taken out of
context or misquoted. It’s impossible to predict all the things
that could go wrong once you start talking. So the only safe
course is to remain silent. Here are some examples, based on
real cases, of people who talked their way into prison:
and Sally were arrested together in a drug case. At the police
station, they were kept in separate holding cells, out of
earshot of each other. The detective investigating the case
questioned them individually about the crime. Neither of them
answered these questions. However, Sue chatted with the
detective, just making small talk—she told him where she went
for dinner the night before, where she was planning to go for
vacation, etc. Later on, the detective went to Sally and fooled
her into thinking that Sue snitched on her. Sally wouldn’t have
believed the detective, except that he mixed in the trivial
information Sue had given him earlier, and those tidbits of
truth made his story very convincing. Once Sally was persuaded
that Sue had told on her, Sally angrily insisted it was all
Sue’s doing. The detective then took Sally’s statements to Sue,
who was outraged, and promptly ratted on Sally. So in the end,
both suspects were suckered into snitching on each other.2
enforcement officers are questioning you, it’s completely legal
for them to lie about the evidence and even create false
documents in order to fool you into talking! Since you cannot be
sure that the officers you’re dealing with are telling the
truth, the only safe thing to do is to stay silent. As the
saying goes, “a fish won’t get caught if it keeps its mouth
should be allowed to make a phone call within a few hours of
arrest, usually soon after you arrive at the police station or
jail. Normally, you're put in a holding cell that has a
telephone in it, though these phones are often rigged so that
you can only make collect calls. The authorities are allowed to
listen in on your calls from jail, so you must not talk about
the incident for which you were arrested or any other illegal
activities in which you might have been involved. It's best not
even to talk about other people, because they might be
investigated or questioned. The importnat thing to communicate
is that your friends or relatives should get you a lawyer and/or
a bail bondsman. If you haven't been given access to a
telephone, say: "I would like to call a lawyer." This has the
same legal effect as saying, "I would like to see a lawyer," so
it doesn't wipe out the protection you get from saying the Magic
2. For another example of this technique, see
3. Attorneys have been giving this particular piece of advice
for hundreds of years. Back in 1614, an English lawyer named
John Hoskyns (who was, at the time, locked up in the Tower of
London for being disruptive) wrote to his young son:
Sweet Benjamin, since thou art young,
And hast not yet the use of tongue,
Make it thy slave, while thou art free;
Imprison it, lest it do thee.
The Columbia World of Quotations, s.v., "John Hoskyns,"
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Why You Should Remain Silent and Ask to See a Lawyer, Even
if You Are Innocent
you should still say I’m going to remain silent. I would like to
see a lawyer, even if you haven’t done anything wrong. Innocent
people are wrongfully convicted of crimes all the time. This
happens for a variety of reasons, such as:
matching the description of a particular crime suspect
too near a crime scene (in the wrong place at the wrong
hanging out with people who have been engaging in criminal
activity, thus appearing to be their accomplice
framed by a lying witness (and sometimes the false witness
is a law enforcement officer)
was arrested in connection with a shooting. The arresting
officer asked him what happened, and Sam said, “Hey man, it
wasn’t me. I was there, but I didn’t shoot anybody. There was
this other guy, I don’t know who he was, but he’s the one who
did the shooting.” Well, it turns out that the police had also
taken a statement from Willie, an eye witness. Willie didn’t get
a good look at anyone’s face, but he was certain that there were
only two men present—the victim and the shooter. So now Sam had
a real problem. He’d admitted to being at the scene of the crime
and, of course, that “unknown man who did the shooting” was
nowhere to be found. Since Willie testified convincingly there
was only one other man beside the victim, the jury concluded
that the shooter was Sam—since Sam had already admitted that he
was present at the incident.
If the legal
system worked perfectly, these mistakes would be corrected in
court—but the system is flawed. Judges, jurors, lawyers, law
enforcement officers, and probation officers all have
limitations stemming from racism, classism, sexism, homophobia,
plain stupidity, etc.1 Moreover, in any court case, the parties’
resources play a big part in the outcome. (Here in the United
States, you get the best justice money can buy.) And money
notwithstanding, even the best criminal defense lawyers can’t
always expose a witness who lies really well.2
Don’t make the
mistake of thinking that the officer who’s interviewing you is
acting as an impartial judge, sorting out who’s naughty and
who’s nice. The officer is building a case. That’s his job. And
if you answer questions, you’re giving the officer building
materials to construct a case against you. Contrary to popular
opinion, truth is not your shield—at least not when you’re being
questioned and arrested. The time to “explain everything” is
when you’ve got your attorney with you, so you can be sure you
won’t be misled, misunderstood or misquoted.
Suggested Reference Material on Discrimination in the Legal
2. Consider David Harris, who murdered a cop. Harris, a good
liar, got Randall Adams convicted and sentenced to death for
this crime. The case was the subject of a documentary film by
detective-director Errol Morris, who played a critical role in
Adams ultimate release: The Thin Blue Line, directed by Errol
Morris (1988; Anchor Bay Entertainment, 2000). Unfortunately,
for every wrongfully convicted prisoner who is helped by people
like Morris or by the network of Innocence Projects, many more
unjustly convicted prisoners go unaided.
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Safety Tactics During a Police Encounter
When you have
an unexpected encounter with the police or with any other law
enforcement agents, you will be safer if you pay attention to
your body language.
Do not make any sudden movements.
Keep your hands in view and open (so it’s clear that you’re
not holding anything or making a fist). Do not reach into
pockets or bags, unless instructed to do so. If the police
ask to see identification, tell them where you keep it
before you start to get it out.
Never touch the police or their equipment (vehicles,
weapons, radios, flashlights, animals, etc.)
Breathe deeply, speak slowly, and relax your shoulders and
knees. This will reduce the officer’s fear that you may be
about to attack or run away. Relaxing under these
circumstances is harder than it sounds, because our bodies
usually produce adrenalin when we’re confronted by law
enforcement agents. Adrenalin makes us breathe, move, and
talk more quickly. So you have to concentrate to slow down,
because you’re probably going a bit faster than you realize.
Make eye contact, to indicate sincerity. However, direct eye
contact is sometimes perceived as a challenge, depending on
gender, size, race, attire, etc. So maintain a respectful
facial expression and speak politely. Again, this is harder
than it sounds, because most of us feel angry and/or scared
when we’re dealing with law enforcement agents. If you’re
perceived as displaying “attitude,” the officer will usually
try to humble you—then you’ll get angrier and so will the
officer, a vicious cycle. Your best bet is to control your
expression and tone of voice from the outset. Addressing the
officer as “sir” or “ma’am” is good, too.
If you’re in a car and an officer indicates that you are to
pull over, park as soon as it’s safe. Keep both hands on the
steering wheel, where the officer can see them. Do not reach
into your pocket, bag, glove compartment or visor. Even
though the officer will want to see your driver’s license
and other documents, do not reach for them until the officer
asks to see them. When he does tell you to show him your
license and papers, say where they are, and confirm that
it’s okay for you to get them out. For example, “Sir, my
license is in my bag here—is it okay if I open it?” or “Sir,
the car registration’s in the glove box—should I get it out
now?” Under no circumstances should you get out of the
car—this will be perceived as a threat. If the officer is
giving you commands over his loudspeaker, that means he’s
particularly nervous, so follow the directions carefully and
then hold very still.
If you’re walking by police officers, it’s best to pass in
front, so they don’t think someone’s creeping up behind
them. However, do not walk in front of an officer if doing
so would interfere with the officer’s access or aim.
information on Safety Tactics, please
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Using the Rights to Remain Silent and to See a Lawyer
The Miranda Rights
Most of us have
watched enough TV to know the Miranda rights1 (also called the
Miranda warnings) by heart:
• You have the right to remain silent.
• Anything you say may be used against you in
a court of law.
• You have the right to an attorney.
• If you cannot afford an attorney, one will
be provided for you by the court.
are derived from the U.S. Constitution, so the protection they
provide is particularly strong because the Constitution is the
ultimate law in every jurisdiction in the United States.2
The right to
remain silent is also called the “privilege against
self-incrimination.” It means that you cannot be forced to say
or write anything that might be used to prove you’re guilty of a
The right to an
attorney means that you’re entitled to have a lawyer present to
help you during police questioning, line-ups, hearings, etc.
Having your lawyer present during interrogation will help you
use your right to remain silent.
When the court
appoints an attorney for you because you can’t afford one, that
lawyer is usually a public defender or panel attorney (see
Using a Lawyer)
There is no one-and-only correct wording for the Miranda
warnings—small changes are acceptable. For example, one officer
might say “Anything you say may be used against you in a court
of law,” and another police officer might say, “Anything you say
can and will be used against you in a court of law.” Both
versions would be considered adequate. However, the officer
can’t make a change that alters the basic meaning. For example,
it would be legally insufficient if an officer said “If you
cannot afford an attorney, one may be appointed for you by the
court.” Many police departments instruct their officers to read
the Miranda rights off a card, so that they’re less likely to
make a mistake.
If you invoke
either of these two rights—the right to remain silent or the
right to counsel—the police have to stop questioning you. It’s
best to invoke these rights together, because that provides both
present and future protection from interrogation.
Miranda rights got their name from a case decided by the U.S.
Supreme Court in 1966, in which Ernest Miranda's conviction for
rape and kidnapping was overturned because the police questioned
him without adequately informing him of his opportunities to
remain silent and to obtain legal advice. Miranda v. Arizona,
384 U.S. 436 (1966).
2. Occassionally, you'll read a superficial news story claiming
"the Miranda protections have been overturned." This is because
every so often there's a new high court decision that refines or
adapts the use and effect of the Miranda warnings. Since most
journalists aren't in a position to explain new legal
technicalities, they end up oversimplifying the story - and then
their editors compound the problem by adding a hysterical title
like, "Miranda Rights Abolished!" (News is a business and
sensationalism sells.) So regardless of what the headlines say,
don't panic before checking with a lawyer. Besides, the Miranda
decision only says that, under certain circumstances, the police
have to tell you about your constitutional rights. Even if the
Miranda case were overturned, it would just mean that you've got
to learn about your rights withour input from the police - which
fortunately, you're doing at this very moment.
3. Voice samples and handwritting samples are exceptions to
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to Invoke the Miranda Rights
The surest way
to invoke your rights is to say the Magic Words: I’m going to
remain silent. I would like to see a lawyer. These two sentences
completely invoke your Miranda rights. The reason for memorizing
this particular formula is that it’s easy to make mistakes.
some people say, “I take the Fifth.” That’s good, but it doesn’t
remind you of what you’re supposed to be doing: remaining silent
and waiting for your lawyer. If you say, “I take the Fifth” and
then keep on talking, you cancel the effect. Not only will the
police be able to go on speaking to you, but everything you say
to them will be used against you in court.
is being too hesitant, as in “I think maybe I’d like to remain
silent,” or “Do you think I should talk to a lawyer?” Usually,
people do this because they’re nervous and they don’t want to
seem impolite. But the police immediately take advantage of this
sort of shyness to talk the suspect into answering questions.
Justin made this mistake in
Use a Pie, Go to Jail.
folks give in to the temptation to get fancy, saying things
like, “I hereby respectfully invoke my
constitutionally-protected rights not to be forced to
incriminate myself and to have adequate access to counsel, etc.”
Such long-winded versions are silly for two reasons. First,
you’re likely to contradict yourself or leave out something
important. Second, it makes you sound stuffy, which annoys the
police. It’s best to keep it simple: I’m going to remain silent.
I would like to see a lawyer. This gets the job done, legally
speaking, and keeps you from getting the wording wrong or
sounding like a wanna-be lawyer.
When the Miranda Rights
Must be Read to a Suspect
the arresting officer didn’t read you your rights doesn’t mean
you can beat your case. Law enforcement agents are only required
to read you your rights if both:
(1) you’re under arrest, and
(2) they want to ask you questions
So if the
officers haven’t arrested you yet, they can ask you questions
without reading you your rights, and your statements will still
be used against you in court. For example, during a
conversation or a
detention. the police don’t have to read you your rights. As
you can guess, a smart cop may try to get all his questions
answered before officially arresting the suspect.
officers don’t bother to read the Miranda rights, because they
don’t really need to question the suspect. There may be good eye
witnesses or surveillance tapes. Or the suspect may just be
babbling, as Kaitlin did in
Five Finger Discount. After all, why would an officer
interrupt with questions if the suspect keeps on making stupid
statements without any prompting?
The moral of
the story is, don’t wait for the police to read you your rights.
They may not do it at all, or they may at least wait until
you’ve already made lots of damaging statements.
Back to contents
Must Read the Miranda Rights to a Suspect
Both state and
federal law enforcement agents have to read you your rights
before they can question you in custody. This includes:
Police and highway patrol officers
Sheriffs and U.S. marshals
FBI, DEA, ATF, and other federal agents
Probation and parole officers
The only people
likely to have you in custody who don’t have to say the Miranda
warnings are private security staff (security guards,
rent-a-cops). These security guards sometimes have fancy
uniforms and badges, and carry guns, so it’s not always easy to
tell them from real police.
always invoke your rights, whether or not you’re dealing with a
real law enforcement agent. It won’t hurt you if you say the
Magic Words to a private security guard. The worst that can
happen is that he’ll make fun of you. And you’ll at least have
reminded yourself of your own best strategy, by saying: I’m
going to remain silent. I would like to see a lawyer.
Back to contents
How Officers Trick People Into
Giving Up Their Miranda Rights
In 1966, when
the U.S. Supreme Court ruled that officers must recite the
Miranda warnings before questioning arrestees, police across the
country were outraged. They were sure that suspects would never
again confess or even make a few incriminating statements.
However, a year or two later, the police had stopped fussing.
They discovered that giving the Miranda warnings had very little
impact on suspects’ behavior. Instead of remaining silent or
asking for a lawyer, most suspects whom the police arrested went
right ahead and answered questions, completely ignoring the
later, the public seems to feel that the Miranda warnings are
just part of the arrest ritual, the stage that comes between
being handcuffed and being put into the back of the squad car.
After all, most officers read the rights in a bored monotone,
without any emphasis. So an arrested person is likely to think
that the Miranda warnings aren’t very important (though this is
actually the last best chance you have to help yourself). Some
officers even refrain from saying, “Do you understand?” at the
end, because they don’t want people to stop and think.
Immediately after reading the warnings, an experienced cop will
start asking easy questions about age, marital status,
employment, etc. Once suspects have been obediently answering a
long string of these questions, they will find it very
uncomfortable to stop in the middle, even though the inquiry has
shifted from personal background information to pointed
questions about the crime under investigation.
When a suspect
doesn’t immediately start babbling, law enforcement agents have
very effective tricks for getting people to start talking. The
following are common arguments the police use when they’re
trying to convince you to answer questions. Notice the false
assumption in each one:
What’s your problem? We’re just trying to clarify what’s
happened here. And since you say you haven’t done anything
wrong, what’ve you got to be afraid of?
assumption: If you
don’t answer questions, you must be hiding evidence of guilt.
constitutional right to remain silent would be useless, if
exercising it branded you as guilty. That’s why, if you invoke
your right to remain silent, the police and prosecutor are
forbidden to use it against you in court. In fact, during trial,
if a prosecutor even implies that you’ve remained silent out of
guilt, your defense attorney can object and call for a mistrial!
When we’re done
here, I’m going back to the station and write my report. That’s
what the DA’s going to use to decide who to prosecute and for
what charges. Right now, all I have for my report is how the
other guy said it happened. Of course, you don’t have to talk to
me, but as far as my report’s concerned, this is your last
chance to tell your side of the story.
assumption: If you
don’t tell your side of the story to the police, you’ll lose
your chance to talk your way out of being prosecuted.
cannot assume that police officers are neutral, listening to
both sides and deciding who’s at fault. It’s their job to
collect potential evidence against people. Prosecutors aren’t
neutral parties, either. It’s their job to prove people guilty.
So if you’re a suspect and you tell your side of the story to
the police and the prosecutor—who, by definition, are not on
your side—you will be hurting yourself. The right person in whom
to confide is your own defense lawyer. Your lawyer will then
help you tell your story to the judge and/or jury, who are the
only people whose job it is to listen impartially to you.
busted. There’s no way you’re getting out of this. The best
thing you can do for yourself at this point is tell the truth.
If you take responsibility now, it’ll look a lot better when you
get to court.
prosecutor and judge will respect you if you confess immediately
upon being arrested.
Prosecutors will think you’re pretty stupid if you confess to
the police, but they’ll be happy because it’ll be much easier to
win the case against you. Judges don’t particularly care whether
you confess to the police or not, as long as you accept a plea
bargain before the case has to go to trial. From a strategic
standpoint, admitting guilt is only valuable if you hold it in
reserve, so that your lawyer can use it as leverage to cut a
deal for you. Confessing before negotiating is like going to buy
something you really want, putting all your money on the table
and asking, “How much does this cost?”
Above all, do
not ask for or accept advice from the officers who have stopped
you. They are not there to act as your advocate or judge.
Remember that they’ve been trained to put you at ease, to get
you to trust them. Their job is to find, arrest and help convict
the suspect. And that suspect is you.
Back to contents
How Officers Trick Suspects
Who Have Children
manipulate suspects who have children into confessing or
consenting to searches. The soft approach goes like this:
Hey, I see
you’re alone here with your kids, and I don’t want to make this
any harder on you than necessary. I tell you what, if you’ll
sign this form and answer a few questions, we’ll let you make
some phone calls right now, to find someone who can come pick up
approach sounds like:
You know, I
could put in a call to Child Protective Services and have a
social worker out here within the hour. Do you know how hard it
is to get your kids back, once the county takes custody of them?
This is a
really tough situation, but it’s critical to say the Magic
Words, I’m going to remain silent. I would like to see a lawyer,
no matter how frightened and upset you feel. In the short term,
if you refuse to cooperate with the police, they may take your
children for a little while—but in the long term, you stand a
much better chance of beating the criminal charges and coming
home. When you answer questions or consent to searches, you
sabotage your chances of winning your case or negotiating a
favorable plea bargain—which may result in your going to jail or
prison, where you won’t be available to your children for a long
as long as there are relatives or a designated guardian who can
take custody of your children, the authorities aren’t going to
put your kids in foster care. The county has no interest in
spending resources on caring for anyone’s children, if it
doesn’t have to—and the authorities will be more than happy to
turn them over to an appropriate guardian as soon as possible.
You can shorten the amount of time your children have to wait to
be rescued, if you designate a guardian in advance.1 To appoint
a guardian, it’s best to check with a lawyer or law clinic—the
procedure varies from jurisdiction to jurisdiction, and you
don’t want your child’s guardian to have to struggle to prove
that she’s properly authorized. If your children are old enough
to understand, have them memorize their guardian’s name and
telephone number. While waiting to complete the arrangements to
designate a legal guardian, you should prepare a letter giving
certain adults permission to take care of your child in the
event of an emergency. Such a letter is not a substitute for
setting up a true guardianship, but it may convince the
authorities to let the adults you’ve specified take temporary
custody of your child. Sign and date the letter, and leave
copies with your child’s school, your child’s doctor, and each
of the adults named in the letter.
wise to designate a guardian for your child even if you never
expect to get in any trouble with the law, in case you're caught
in an accident or other disaster.
Back to contents
Oral Confessions and Written Confessions
people persist in imagining that it doesn’t matter what they say
to the police, as long as they don’t sign anything. Yet the
Miranda warnings specifically state, “anything you say can and
will be used against you in a court of law.” So this shouldn’t
be a mystery. However, just to be crystal clear, what you say to
cops can be just as harmful as what you write or sign for them.
Here’s how the
police gather incriminating statements during a typical arrest:
At the scene of the arrest, the officer reads the
Miranda warnings and the suspect fails to invoke his rights.
Then the suspect answers the officer’s questions. The officer
takes notes and later quotes the suspect (accurately or not1) in
the narrative part of the police report.
At the arrest location or at the police station, the
suspect is invited to tell his side of the story, in a written
Sample Statements). Sometimes the suspect himself is asked
to write the statement, but usually the suspect talks while the
officer does the writing. Officers generally edit as they write:
leaving some things out, suggesting particular words, or just
inserting their own words. Then the suspect is told to sign the
statement. Usually the suspect doesn’t bother to read it over,
let alone make any corrections; or perhaps the suspect is too
frightened or upset to disagree with whatever the officer wrote.
the police station, if it’s a serious case, officers will
question the suspect again. This interview will normally be
audio taped, though sometimes the police use videotape. The
officer may also seek a longer, more detailed written statement
from the suspect.
statements on paper or on tape make it harder to defend the case
than oral statements. Yet even brief oral statements can be
impossible to deny or explain.
of my teenage clients was busted on the street and the cops
dragged him over to a wall covered with graffiti. The officer
demanded, "Did you write that?" My client carefully replied,
"No, I did not." In his police report, the officer wrote: "I
asked suspect, 'Did you write this graffiti"' and he responded,
'Yes.'" In court, it was the officer's word against my client's
- and we were in juvenile court, so there was only a judge and
no jury. Bummer.
Back to contents
Private Security Staff
security guards, “loss prevention agents,” and “asset protection
agents,” are making a citizen’s arrest when they bust you, since
they aren’t really police. They typically keep you in custody
and call the police to come pick you up. They’re allowed to
restrain you physically, while they wait for the police to
arrive. They can grab you, handcuff you, lock you in a room,
etc. Like police, security staff are not supposed to use more
force than is necessary to ensure that you don’t escape.
private security staff are not required to read you your rights,
since they’re not really police. However, anything you say to
private security can and will be used against you in a court of
law. Some businesses instruct their security staff to note,
in particular, the “subject’s first words at time of detention”
(because such statements won’t have been well thought out). But
all statements, from first to last, made to private security
staff are dangerous and likely to be quoted or misquoted in
their reports. And it’s so very tempting to try to explain
everything to the security staff. After all, once in a while
this works. Some people have been caught engaging in some minor
crime, and then talked and cried their way out of trouble.
Obviously, this is more effective while you’re still young and
cute; and it may work better for girls than for boys.1
Unfortunately, on the occasions it doesn’t work, you’ll have
sabotaged any hope of a legal defense, because what you’ve said
will certainly be used against you court. That’s what happened
to Kaitlin in the
Five Finger Discount. Not surprisingly, for those who take
this gamble, the odds always seem better than they really are.
Both cops and casinos win big, betting on the gambler’s
In addition to
getting you to make damaging remarks, security staff may also
persuade you to give a statement in writing or sign a statement
they’ve prepared for you (see
Merchant Confession Forms).
with professional security staff also have clear policies about
when and whom to arrest. For example, a store may have rules
such as: the security staff must not arrest a suspect unless the
agent has had an uninterrupted view of her; or juveniles and
first-time shoplifters are let go with a warning. But most
businesses that employ security staff have a policy of arresting
every valid suspect. And if the suspect runs or fights, or
doesn’t have i.d., the security staff is virtually certain to
arrest him. Security guards nearly always follow the store’s
policy in deciding whom to arrest—it’s just not worth it to the
guard to risk getting reprimanded or fired for taking pity on a
suspect. Besides, after a few weeks on the job, security staff
find that they’ve heard all the excuses over and over. So when
suspects talk to security staff, they only make things worse for
In a case
involving theft, it doesn’t matter whether or not the suspect
leaves the premises. Once you’ve picked up someone else’s
property and taken it to keep, without being entitled to it,
that’s larceny. Usually, store security staff wait for
shoplifters to leave before they grab them, so the suspects
can’t claim that they were intending to pay for the goods before
exiting. But security staff may also arrest shoplifting suspects
before they’ve left the store, since concealing the merchandise
indicates that there was no intent to pay.
1. One drawback to the
winsome approach is that occassionally a corrupt security
guard or cop will demand sexual services for letting you go,
which many people find distasteful.
Back to contents
What to Sign and What Not to Sign
DO Sign a Promise
been arrested, you’re likely to be given all sorts of forms to
sign. But there’s only one kind of document that you can be sure
is safe to sign: a “promise to appear”. (see
Sample Promises to Appear). Anything else is probably a
enforcement agents are asking you to sign something, the rule to
remember is: don’t sign anything other than a promise to appear,
without consulting your lawyer. But as further protection, you
might as well be familiar with the principal documents used to
These are each
discussed in detail below, and you’ll have no trouble
recognizing them, once you’ve taken a good look at the samples.
However, whether or not you can tell precisely what the officers
are trying to get you to sign, you know it can’t be any good for
you unless it’s a promise to appear. On the bright side, there’s
no need to make a decision in haste. If you’ve just been
arrested and the officers are pressuring you to sign something,
ask to telephone your lawyer to check whether you should sign.
Of course, the officers are likely to claim that they don’t
allow phone calls until they’ve finished all their booking
procedures—but don’t just give up. Many people, upon being
arrested, have persuaded the officers at the station to let them
telephone their lawyers in the middle of booking. Some just
politely asked to call their lawyer (“May I please telephone my
lawyer?”) and were allowed to do so. Some had to make the
request over and over. And some had to refuse to provide even
the most basic information—such as name and address—until the
officers let them use the telephone.1
If you don’t
have a lawyer yet, try the public defender’s office or a
criminal defense lawyer from the yellow pages. Keep your
question short and focused:
“Hi, I’ve just been arrested and the police are telling me
to sign a paper that says: ____________. Should I sign it?”
When you call a
lawyer while you’re in custody, the lawyer will doubtless remind
you to invoke your rights. She will appreciate hearing that
you’ve already told the police, I’m going to remain silent. I
would like to see a lawyer.
consulted with an attorney and carried out his or her advice
about what to sign and what information to provide, re-protect
yourself from questioning by saying the Magic Words again. After
that, make sure you don’t say anything else to the officers,
because if you break the silence, you will have waived your
A promise to
appear is a document you sign when you’re being released from
custody, guaranteeing that you’ll come to court. It normally
specifies the courthouse, date, and time at which you’re to
appear. The promise to appear may be issued by the police, if
you’re being released at the scene of the arrest or at the
police station. Or, if you were kept in custody, you may be
issued one at the courthouse or jail, as part of the process of
release on bail or release on your own recognizance. In some
places the promise to appear is called a “citation,” and when
you get one you’re “released on citation” or “cited out.” In
other places, it’s called a “summons” or a “ticket.” (For more
information on procedures for release, see Jail
and Bail). Promises to appear come in various shapes and
colors. Sometime they’re printed on full-size paper (81/2” x
11”); but they can also be smaller, like traffic tickets.2
jurisdictions, a promise to appear will clearly indicate that
it’s not an admission of guilt. For example, citations in
California have the following phrases above the signature line:
“Without admitting guilt, I promise to appear….” However, in
most locations, promises to appear don’t have such a useful
signal to let you know they’re safe to sign. So you have to read
carefully, to make sure that the document is nothing but a
promise to come to court.
Note that if
you fail to appear when you promised, the judge will likely
issue a warrant for your arrest (a “bench
1. Quite a few of my
clients have succeeded in calling me during booking, both in
state custody and in federal custody. One young man called
while being booked by the immigration authorities at the
border (he sat down and refused to move until they let him
use the phone). Another client, Rahula Janowski, got the
police to let her call from the hospital, where she had been
taken because of injuries sustained during her arrest. (The
police were trying to question her while she waited to be
treated for a broken collarbone. She made sure to invoke
her rights and call for legal advice before accepting pain
medication that would cloud her thinking.)
2. Actually a traffic ticket is a notice to appear, except
you may be given the option of paying a fine instead of
coming to court (unless you want to fight the ticket).
Back to contents
Don't Sign a
Waiver of Rights
rights means giving them up—nearly always a mistake. In an
encounter with law enforcement, the officers want you to waive
your Miranda rights: the right to remain silent and the right to
have a lawyer present to help you when you’re being questioned.
If you answer questions after law enforcement officers have
recited the Miranda warnings to you, you’ve implicitly waived
your rights. Even if you say the Magic Words, I’m going to
remain silent. I would like to see a lawyer, but then fail to
remain silent, you’ve waived your rights.
waive your rights simply by talking, you can always make matters
worse by signing a waiver of rights form. Prosecutors like it
when the police persuade suspects to waive their rights in
writing, because that makes it so hard for criminal defense
attorneys to argue successfully that their clients were tricked
or forced into making damaging statements. (The forms always say
that the suspect understands his rights and knowingly gives them
Sample Waivers of Rights.
To get you to
fall into this trap, most police departments present you with a
waiver form at arrest or during booking. The officer generally
pretends that it’s just a formality. The waiver may be a
separate document, or it may be included in a form for taking
your statement. See
Sample Statements. Here are some lies the officer
may tell, to get you to sign the waiver of rights:
Sign here. This confirms that we read you your rights.
This is just an acknowledgment that you understand your
We’re not legally allowed to write down your side of the
story unless you sign this first.
Look, this is just part of the booking process. Everybody
has to sign this form.
You’re not going anywhere until you do sign it. You wanna
sit here all night? That’s fine with me.
If an officer
gives you a waiver of rights form, don’t sign it. And don’t try
altering the form, by crossing words out or writing on it. Just
give it back to the officer and say: I’m going to remain silent.
I would like to see a lawyer.
Back to contents
Don't Sign a
agents start by trying to trick you into making an oral
statement, that is, talking about what happened. If you do make
the mistake of speaking to the police, the officer will then
want to get your statement in writing.1 Typically the officer
will write down the statement and try to get you to sign it,
although sometimes the officer will ask you to write it
yourself. If you sign a written statement, regardless of who
wrote it, you’ll have produced potential evidence that’s likely
to be extremely damaging.
departments have a specific form for statements, that’s part of
the complete police report. Many statement forms include a
waiver of rights section (giving the Miranda warnings), but
The officer may
ask for a written statement at the scene of the arrest, or at
the police station, or both. Just say no. Don’t write anything
at all on the form. And don’t sign it.
Back to contents
Don't Sign a
arrested or searched, you’re normally given a property receipt
listing the items taken away from you. See
Sample Property Receipts. The reason you shouldn’t sign a
property receipt is that it’s an admission that you knowingly
possess whatever’s on that list—and there may be things on the
list that can be used against you in court. For example:
amounts of cash (indicative of illegal business dealings)
tools (such as a screwdriver)
equipment (spray paint or even just a marker)
book or other documents with the names of people who may
be involved in criminal activities
documents (such as mail addressed to you) that prove
you have ties to a place where criminal activity occurred
electronic storage media (containing files
with incriminating statements or contact information)
Even if you
believe that your pockets, bags, backpack and car don’t contain
anything damaging, you still shouldn’t sign a property receipt.
Just as it’s hard to predict how your words might be used
against you, it’s equally hard to predict how your possessions
might be used to prove guilt. Also, you may have something in
your property that you’ve forgotten about (like the end of a
joint in the very bottom of your backpack). And finally, someone
else may have put an incriminating item in your bag or
car—another suspect (trying to get rid of it) or a corrupt
officer (trying to frame you).1
trying to get you to sign the property receipt may tell the
If you don’t sign it, you won’t ever get your stuff back.
If you don’t sign it, you won’t be released.
Don’t worry, it’s just part of the procedures
here—it doesn’t mean anything.
don’t need your signature to keep track of the items taken from
you—they’ll all be labeled with your name and the police report
number.2 And your lawyer can always file a “motion for return
of property” to get your things back—that’s part of a lawyer’s
job—you just have to ask. Bear in mind that some items may not
be released until the case is concluded, because the prosecutor
will claim he needs them for evidence. And some of your property
may never be returned anyway. Your belongings can be confiscated
if they’re used during a crime (like burglary tools) or if
they’re contraband (like illegal drugs or weapons).3 Similarly,
your money can be seized if the prosecutor claims it was
illegally obtained (like drug money). The main thing is to talk
to your lawyer, before signing anything that has to do with
1. A client of mine was
arrested one afternoon and taken to the station. Following
the arrest, police officers picked up two abandoned guns
that were near the scene of the incident, but not in my
client's possession. Many hours later, in the middle of the
night, my client was being released from jail. The police
told him to sign a variety of forms, including a property
receipt. At the bottom of the list of items were the two
guns. My client said, "These aren't my guns." The officer
replied, "Oh don't worry, it doesn't mean anything. We just
had to list them somewhere. Besides you have to sign this if
you ever want to get your stuff back. And anyhow, you won't
get released tonight if you don't complete all the
paperwork." Now, my client had been wearing some very nice
gold jewelry that he didn't want to lose. And he was
extremely tired. So he signed the property receipt.
Needless to say, it became a real problem in defending the
case. There was very little chance of finding the officer
who'd lied to him (we didn't know his name or badge
number). And even if we could find the officer, it would be
hard to prove in court that he told those lies, since we had
no witnesses to the conversation.
2. The police don't keep track of your property as a favor
to you. They do it in case the prosecutor wants to use it
as evidence against you.
3. Also, some property gets lost in the system, through
incompetence or greed on the part of law enforcement and
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Don't Sign a
Merchant Confession Form
In stores with
well-organized security, the staff normally tries to get
shoplifters to sign confession forms.1 These forms vary in style
and, of course, you won’t see the word “confession” anywhere on
the document. Often, the really deadly part is in the fine
Sample Merchant Confessions Forms.
may try to persuade you to sign the confession form by
pretending that it’s harmless, saying things like:
• Oh, this? It’s just the standard paperwork. We have to
do this for every incident. It’s no big deal. Sign here.
• This document will help you later on, because it shows
that you co-operated and didn’t try to run away or struggle.
• If you sign this, it will make you look better in court,
because it’ll prove to the judge that you took
responsibility for your actions.
• Don’t worry, you’re not going to jail or anything. You’ll
just get probation and have to stay out of the store from
now on. Of course, it’s your choice. You can refuse to sign
and see what happens….
confession forms are used in two ways:
store security staff gives the confession form to the
police, who will pass it along to the local
prosecutor, to use
as evidence against you in a criminal case.
store security staff gives the confession form to the
store’s lawyers, to use as evidence against you in
case (usually a lawsuit to make you pay the store
nearly always give their confession forms to the police, for use
in criminal prosecution. They can file civil suits instead of or
in addition to this, but they rarely do so, because it’s not
worth the money they’d have to pay an attorney to do the legal
work. However, merchants sometimes send threatening letters to
shoplifters, saying that if the person doesn’t pay some large
sum of money, the store will sue him. This is likely to be an
empty threat. Don’t respond to a demand letter from a merchant
without first consulting a lawyer. (On the other hand, if you
receive a letter from the prosecutor’s office or from the court,
that’s serious. You should immediately contact a criminal
Once you say the Magic Words: I’m going to remain silent. I
would like to see a lawyer, the police must stop asking you
questions. However, they sometimes try to provoke you into
breaking your silence, by talking to each other about all the
horrible, terrible things that could happen to you in jail.
That’s what the officers did to Phillip in
Pocketful of Felony. When the police are playing this game,
they’ll make scary predictions about how you’ll be beaten up
and/or raped by large, vicious prisoners of a different race.2
(Some officers lead a rich fantasy life.) Just remain silent.
If you’ve been
arrested and realize that you accidentally said something to an
officer, don’t panic. As soon as you remember that you’re
supposed to be remaining silent, repeat the Magic Words: I’m
going to remain silent. I would like to see a lawyer. Just
because you’ve answered some questions doesn’t mean that all is
lost. You may not have said anything that bad yet. But if you go
on talking, you’re bound to say damaging things eventually.
Besides, the officers are likely to start tape recording you or
trying to get you to sign a statement. Stopping can’t hurt, and
it may help. Don’t fall for the old “the cat’s out of the bag,
so you might as well tell us everything” routine.
1. Of course, even if you
don't sign a merchant confession form, you'll still be in
trouble if you talk to the store's security staff. The
security agent will write down whatever you say (accurately
or not) in his report, and that will definitely be used
against you in court.
2. Although this does happen, it's rather unlikely. See
Going to Jail for the First Time.
Back to contents
for the police to beat you into confessing;1 however, it’s
perfectly legal for them to sucker you into it. That’s why
interrogation doesn’t usually involve bright lights and rubber
hoses—more often than not, the officer sounds sympathetic or at
least business-like. And that can leave you even more vulnerable
to manipulation, because when you feel relieved that the officer
isn’t being really scary, you tend to let your guard down.
Besides, it’s truly difficult to overcome the natural urge to
talk one’s way out of trouble. That’s why it makes so much sense
to train yourself to say I’m going to remain silent. I would
like to see a lawyer, under any circumstances. It’s got to
become a reflex you can rely on, the same way you know that
you’d automatically start swimming if you fell into deep water,
even if you were scared and disoriented.
You’re not a suspect. We’re simply investigating here.
Just help us understand what happened and then you can go.
If you answer
questions, you’re likely to become a suspect, if you aren’t
really one already.
What are you afraid of? If you haven’t done anything wrong,
then you shouldn’t have any problem answering my questions.2
What you should
be afraid of is being lured into answering questions. You don’t
have anything to prove. Remember, in court you’re “innocent
until proven guilty”—and the thing most likely to prove guilt is
an unplanned statement made when you’re arrested. If the police
are thinking of arresting you, answering their questions will
make them more determined to do it, not less so.
Look, if you don’t answer my questions, I won’t have any
choice but to take you to jail. This is your chance to tell
your side of the story.
This is the
commonest trick of all! The police consistently pretend that
they’re considering letting you go, when they’ve already made up
their minds to take you to jail. Remember, the time to tell your
side of the story is when you’re in court and have your lawyer
helping you—not when you’re alone with a cop who’s busy building
a case against you. See how a real police inspector uses this
technique during an actual interrogation, in
Use a Pie, Go to Jail.
Your friends have all cooperated and we let them go home.
You’re the only one left. Do you want to stay in jail?
The police can
lie about where your friends are and what they’ve said. Take a
Rat Jacket. Don’t trust information given to you by the
cops. Make sure to verify your facts through a lawyer or your
friends and family.
I’m tired of screwing around. If you don’t answer my
questions, you’re going to be charged with obstruction.
Well, you know
this is garbage, because the Constitution guarantees you the
right to remain silent—so refusing to answer questions can’t be
against the law. But some cops will still threaten you with
“resisting an officer” or “obstruction of justice,” just to see
whether you’ll fall for it.
Come on, I’m not asking you to sign anything. We’re just
talking. And you can stop any time you want to.
anything you say can be used against you in a court of law. You
don’t have to sign anything to make it a real confession—the
police will just quote you (and they may be taping you, too).
The time to stop is before you ever begin—even a little time
spent answering questions can completely screw up your case.
Look, we’ve got all the evidence we need to convict you,
so you might as well confess.
Yeah, right. If
the police really had all the evidence they needed, they
wouldn’t waste time talking to you. The only reason they’re
questioning you is because they don’t have enough proof, and
they’re hoping you’ll be kind enough to give it to them.
Basically, the case against you is really strong. It’s not a
question of whether you’re going to jail—it’s a question of
what you’re to jail for. This is your last chance to get the
right information to the DA before he decides on the
This is not the
time to give more information to the DA (the prosecutor). You
can do that later, once you’ve got a lawyer helping you. After
all, the DA can change the charges any time up to trial, and
usually does—reducing or dismissing them as part of a plea
bargain. But your lawyer can get you a better deal if you don’t
give away all your bargaining power by confessing to the
You know, there’s only one person who can help you right
now, and that’s you. I can listen, but you’ve got to do the
talking. This thing is going to eat at you; it’s going to
weigh you down for the rest of your life, if you don’t get
it off your conscience. Things look pretty bad right now,
and they are. But this is where you have to start from.
You’ve got to get this stuff out now, so you can move
forward. If you could talk to the victim right now, what
would you want to say to him?
be good for the soul, but not when it’s to the police. Talk
about your feelings with a spiritual advisor such as a minister,
priest, rabbi or imam, or with a licensed counselor such as a
psychiatrist, psychologist, or social worker (but not a
probation officer). They have the professional training to help
you, and more important, they’re prohibited by law from
testifying about what you confide to them. Cops, on the other
hand, will gladly testify about what you’ve “gotten off your
You got a choice here. Either you answer my questions, or
you’re going to jail. And I’d hate to see a nice white boy
like you get punked by a bunch of nigs.
– or –
You can talk to me now, or you can go to jail. And let me
tell you something, there’s women in that jail who haven’t
been outside in months, women who haven’t been with a man
for a real long time. How’d you like to be raped by a bunch
Cops use this
kind of race-baiting and queer-bashing pretty frequently to
scare white people who haven’t been to jail before. And the cops
aren’t particularly subtle about it. Don’t let some bigot with a
badge put his trash into your head.
TV and movies
make rape-in-jail scenarios look more frequent than they really
are. Most people in jail are there for drug or property crimes,
not crimes of violence (much less sexual violence). If you
behave reasonably, other prisoners really aren’t likely to give
you a hard time. See
Going to Jail for the First Time.
1. The 5th Amendment to
the U.S. Constitution says that no one "shall be compelled
in any criminal case to be a witness against himself."
2. This is not the time to launch into a political
discussion of how the legal system is malfunctioning and
can't be trusted to protect the innocent. Don't let
yourself be drawn into any kind of conversation at all.
Besides, this "what're you afraid of" business is like a
12-year-old's dare ("If you're so tough, why don't you try
getting across the tracks before the train comes?" or "You
don't even know the first thing about how to drive - let's
see you take your Mom's car around the block.").
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You know the police are really trying to manipulate you when
they offer a legal defense or moral justification for what
you’re accused of doing, or imply that what happened was due to
an accident or to circumstances beyond your control.1
In applying this tactic, the interrogator frequently offers the
suspect two choices, for example: a believable explanation or an
unbelievable one; an honorable excuse or a dishonorable one. Of
course, both choices are still damaging admissions—it’s just
that one sounds better
than the other. Imagine the following lines said by a
sympathetic, understanding police officer in a warm, reassuring
tone of voice:
I understand what you’re saying…he threatened you, and
essentially you were acting in self-defense.
• Okay, we’ve got you for
possession of marijuana. But what isn’t clear to me is: were
you just out to get stoned, or were you maybe using it for
• What I’m wondering is whether
you needed that money so you could take care of your kids
and get them decent food and clothes and all—or did you just
do it because you wanted drugs or new Nikes or whatever?
• Well, that’s a perfectly
normal reaction. When a man finds out that his wife is
sleeping with another guy, he’s going to want to go out and
do something about it.
Circumstances Beyond Control
• Now, I wasn’t there, so I
don’t know. Only you know what really happened. But I’m
thinking that when two people get into it, when there’s an
argument, stuff can happen that nobody ever intended. I
mean, you could’ve just been shoving each other around, and
he could’ve fallen and hit his head by accident—just plain
• Obviously there’s a
difference between being an active participant and being a
bystander. It’s one thing to be actually involved in selling
the drugs, and it’s another thing to just be in the house
when some other guys are doing a deal there. But the way
things look, you could be either one. And the only way we’re
going to be able to figure out what your real role was, is
if you talk to us.
Another common aspect of Reid interrogation is
contrasting the worst case scenario with the best possible
• You know,
there’s a lot of different ways this case
could be charged.
Anywhere from first-degree murder—that gets you life without
parole—all the way down to involuntary manslaughter, for
which people typically get probation. What we’re doing right
now is trying to understand what really happened, so we can
make a decision which way to go…
Often the police will even say, “Look, I’m not making any
promises…” and then imply that confessing will result in a
better outcome in court: lesser charges, a more favorable
sentence, etc. This is a lie. The police are not authorized to
offer leniency in exchange for a confession. Only the prosecutor
or judge can make a plea bargain.2
All law enforcement officers are trained to question
suspects. Very few civilians have any practice in spotting or
withstanding the interrogation techniques police use against
them. It’s pretty stupid to play such lousy odds when your
liberty’s at stake.
surprising that the
Good Cop Bad Cop routine works so well, since it’s
generally so obvious. You’ve seen it in hundreds of TV shows and
movies, and most people consider it a cliché. Yet law
enforcement officers use it in every city, every day…because it
works nearly every time. And a big reason it works so well is
that when you’ve just been arrested, you’re extremely
vulnerable. You’re thinking of all the horrible things that are
likely to happen: going to jail, disappointing your loved ones,
being publicly disgraced, losing your job, failing school, etc.
On top of that, if you’ve been in custody all day or all night,
you’ll be suffering from fatigue and hunger, and perhaps other
physical stresses. So, psychologically, you’re a sitting duck.
And even though you know, intellectually, that the good cop is
just trying to manipulate you, you cannot help having hope and
trust in the one person in this awful situation who seems to be
on your side. It’s a tough problem, but there is a solution. The
answer is to train your mind, so that you say
I’m going to remain silent. I would
like to see a lawyer, no matter how upset you’re
feeling or how kind the officer seems. “Don’t just practice
until you can get it right, practice until you can’t get it
Of course, sometimes the cops aren’t pretending. The bad cop
may, in fact, have lost his temper and be yelling at you for
real. Or the good cop may truly want to help you, and may think
that your answering questions will somehow benefit you. But
whether or not the cops are sincere,
your strategy remains the same. You should still say:
I’m going to remain silent. I would
like to see a lawyer. Because if the bad cop really
does want to make trouble for you, your giving a statement will
make it easy for him. And the good cop, in urging you to answer
questions, is giving you bad advice. Some officers honestly
think that if a suspect makes a statement, it will be helpful.
But it doesn’t work that way in court. Prosecutors can almost
always find something in
suspects’ statements that can be used against them. That’s why,
when you do tell your side of the story, you should do it with
the help of your defense attorney—so that your words can’t be
twisted or misquoted.
If you’re arrested with friends, make an agreement that no
one will make statements to the police until everyone’s been
able to talk to a lawyer and decide calmly what to do. Be aware
of the paranoia that tends to set in after people have been
Warning: Do not have a strategy discussion in the backseat of
a police car!
If you’ve been arrested with someone else, and the cops lock
the two of you in their car and walk away, you can bet dollars
to donuts that they’re recording your conversation. So if you’re
in this situation, just remind the other person that the smart
thing to do is to say: I’m going to remain silent. I would
like to see a lawyer. And leave any further discussion until
When you’re in
jail, don’t talk to your cell-mates about what happened to you
or who was with you—because you really don’t want them
testifying at your trial or sentencing hearing. Don’t even talk
about mutual acquaintances. Stick to safe topics such as movies,
music, sports, etc. You’ll make it a lot harder for anyone to
snitch on you, if you don’t snitch on yourself.
Cop, Bad Cop"
1. John Reid
codified these tactics, referring to them as the "Nine Steps
of Interrogation." Reid and his partner Fred Inbau spent
decades writing about and teaching interrogation techniques,
and business is still booming at
http://reid.com/. In U.S. police acadamies, their books have been the most
popular texts on this subject. Their work is full of sample
scripts, generally involving a hapless suspect named Joe:
"Joe, if this whole thing was your idea, that tells me that
you have a criminal mind. But if you were just talked into
doing this against your better judgment, that would be
important to include in my report. You were just talked into
it, weren't you?" For examples of how such techniques get
innocent people to confess to crimes, take a look at the
work of Richard Ofshe, at
2. There's a difference between confessing and snitching. A
law enforcement officer can't offer you a deal in return for
a confession, but he can make a snitch deal. See
Probation, Parole and Supervised Release
Back to contents
Narc in the Park
There is no
reliable way to identify undercover agents or informants. The
good ones act entirely in keeping with their roles. An
experienced undercover officer is not going to seem unduly
nervous, wear inappropriate clothing, or fumble with the drugs
officers are legally allowed to lie when you inquire whether
they’re law enforcement personnel. It does no good to ask, “Are
you a cop?” Undercover cops can just reply, “Of course not.”
After all, if they couldn’t lie, it would be a waste of effort
for law enforcement agencies to train and disguise all those
officers for undercover roles—they’d be exposed early on, every
time they tried to pass.1
legal for undercover officers and informants to engage in
criminal activity to protect their cover. Narcs are allowed to
buy, sell and do drugs of every kind. Forget any urban myths
you may have heard to the contrary: narcs are entitled to
smoke/snort/swallow/inject controlled substances. Similarly,
vice officers investigating prostitution are allowed to get
naked and receive “massage.” (It’s good to know that your tax
dollars are being well-spent.)2
undercover officers and informants come equipped with
transmitting or recording devices, this type of electronic
equipment is miniaturized. A police agent who’s “wearing a
wire” is unlikely to be uncovered by mere patting. The
equipment can easily be hidden in hard articles of clothing,
such as belt buckles, boots, etc. Of course, undercover
officers and informants don’t have to be wired for sound, they
can just report from memory (accurately or not) about whatever
they’ve seen and heard.
1. Undercover officers find it a particularly useful tactic to
mention that they're worried about the police, occassionally
asking the suspect whether he's a cop—the ol' switcheroo.
2. Most people are surprised to learn that law enforcement
agents can, as part of their job, lie and engage in criminal
activity. It seems unfair that the police don't have to live up
to the same standards that they're enforcing. However, a great
deal of police investigation operates on the basis that the end
justifies the means—a flawed rationale, particularly in the
context of maintaining a just legal system. Crooked tools build
a crooked structure.
Back to contents
enforcement agencies often use informants. Some informants work
for money, but most are people who’ve been caught engaging in
criminal activity. The vast majority of snitch deals are made by
the police, who refrain from charging a suspect they’ve caught,
in return for information or undercover work (typically, buying
or selling drugs). A much smaller number of snitch deals are
made by the police and the prosecutor together, when the suspect
has criminal charges pending or is serving time. In these
situations, the prosecutor lowers the charges or seeks to reduce
the sentence, in return for information or undercover work.
It’s not worth it to law enforcement agencies to
use snitches in investigating misdemeanors—they want information
leading to felony convictions. In choosing a snitch, law
enforcement agents look for someone who has significant criminal
experience (a long rap sheet), because such a person is likely
to have good connections and also seem relaxed and natural while
participating in undercover work. Occasionally, officers will
use a less-experienced snitch, if that person has a really good
connection to the particular target of their investigation. A
very productive snitch will be protected by law enforcement, to
maintain him as a source of future information. An inept snitch
may not be so lucky.
Informants can be very deceptive since they’re
usually quite at home with the activities and communities
they’re working on. In fact, an informant can be an old
friend or acquaintance who only just recently happened to fall
under police control.* Even though you know that
someone’s been quietly selling drugs for many years, there’s no
guarantee that he hasn’t just as quietly become an informant in
the past month. Some informants are prisoners (or cops
pretending to be prisoners), put into the same cell as an
incarcerated suspect. Just as with undercover officers,
informants do not admit that they’re really law enforcement
agents in disguise.
added by SWOP-LV
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Infiltrators are undercover officers or
informants who become members of political organizations. Some
infiltrators just report on the other members of the
organization (who they are, what they’re doing). Other
infiltrators actively undermine the political organization, by
causing dissension among the members or by promoting risky,
harmful activities. An infiltrator who pushes other activists to
engage in behavior that’s contrary to the organization’s goals
or ethical standards is an “agent provocateur.” Just a few of
the organizations that have suffered from government
infiltration are: the AFL-CIO, the Black Panthers, the Committee
in Solidarity with the People of El Salvador (CISPES), and Earth
First! A huge and particularly well-documented infiltration and
disruption program was COINTELPRO, a long-term FBI operation.
Some activists, at the beginning of meetings,
mistakenly announce: “Will all law enforcement agents please
identify themselves?” Needless to say, no one comes forward.
Aside from being futile, this ritual gives participants a false
sense of security, as they may imagine that their meeting is
therefore entirely free from surveillance.
Back to contents
officer can legally initiate crime. That is, the narc can be the
person pushing the drugs, or actively seeking a source for
buying them. (“Hey man, you know where I can get some good weed?
Can you hook me up?”)
imagine that when an undercover law enforcement officer
instigates a crime, that’s entrapment. Unfortunately,
“entrapment” is one of those words that has a much narrower
definition in a court of law than in common speech. To argue at
trial that a criminal defendant was entrapped into committing a
crime, the defense attorney has to get permission from the judge
in advance. She has to show that the defendant (1) had no
inclination or tendency to commit the crime, and (2) that the
law enforcement agent(s) exerted considerable psychological
pressure to get the defendant to break the law. Unfortunately,
when the defendant has prior convictions or even arrests, the
prosecutor often successfully argues that the defendant has
demonstrated criminal tendencies. Moreover, it’s hard to show
that the defendant was urged so intensely that he eventually
caved in and agreed to commit the crime. For example, in the
Narc in the Park, Jamal wouldn’t be successful in arguing
that the undercover officer overwhelmed him into buying the
marijuana. By contrast, consider the following two cases which
show how much evidence is required to prove entrapment.
Example 1: Postal inspectors, pretending to be a variety of
different sellers of pornography, spent over two years
persuading a man to send away for obscene photos. The court
ruled that this was entrapment.
Example 2: An informant in a drug treatment program, after much
pleading and insistence that he was truly suffering because the
treatment wasn’t working for him, eventually convinced a fellow
patient to get drugs for him. The court ruled that this was
1. In every city, undercover law enforcement agents are
spending their time encouraging and assisting people to engage
in criminal activity, to see who's going to fall from grace.
Instead of helping to maintain a healthy society, they're
picking at scabs on the body politic.
Back to contents
Please see story:
Search and Destroy
Search warrants allow law enforcement agents to search a
particular place (or vehicle or person) and seize items that
might have evidentiary value. To obtain a search warrant, an
officer must show a judge that there’s probable cause that a
crime has been or is being committed. The officer’s “affidavit,”
or statement of probable cause, is usually submitted to the
court in writing, but sometimes an officer gives her affidavit
orally, usually when calling from a crime scene to request a
warrant. (For an example of probable cause, see
general rule is that the police are required to “knock and
announce” when serving a search warrant, as in: [knock, knock]
“Ma’am, this is the police. We have a search warrant for these
premises.” If you then refuse to let the officers in, they have
the right to force the door open.
police are allowed to skip the knock and announce part when they
reasonably believe that officers would be endangered or evidence
destroyed, should the occupants have any warning.1
Even when they do knock and announce, they may only wait a few
seconds before bursting in.
police knock on your door and state that they have a search
warrant, step outside and close the door behind you, then ask
them to give you the warrant so you can read it. (If you stand
inside with the door open, the police may just push past you
before you can react.) Make sure you actually get your hands on
the warrant so you can read it properly. Don’t let the officer
just wave it in front of you.
You’re looking for three things, to be sure it’s
a valid warrant:
the judge’s signature
Address: checking that the warrant really does have your address on it is
the most important thing. Police frequently search the wrong
house or apartment, and claim it was just a mistake. Note
that a warrant can’t be for a whole apartment building or
floor—it has to be for a specific apartment.
Date: the date should not generally be older than two weeks. There isn’t
a precise number of days that warrants are good for. They
can be served as long as a reasonable officer would expect
to find the items listed in the warrant. Some judges have
held that a particular warrant was valid even after a month
or two, but these were rare cases. For simplicity’s sake,
most police departments just make a rule for themselves
about how many days the officers can wait before serving a
search warrant—usually it’s seven or ten days.
it’s pretty unusual for a warrant to lack a judge’s or
magistrate’s signature2, but it could happen.
Warrants come in a wide variety of formats. Take a look at the
sample search warrants, and see how quickly
you can spot the address, date, and signature. (While you’re
looking for these items, imagine that you’re standing in front
of your door, with police officers breathing down your neck.)
The address is hardest, because it’s often in the middle of a
paragraph. The date and signature will be at the end.
you do find a flaw in the warrant, show it to the police and
tell them that you don’t consent to their coming in. For
example, you might say:
This warrant is for a different address: it’s for
1965 Montgomery St., and my house is 1966 Montgomery. I
don’t consent to your coming in.
This house has apartments in it. Your warrant doesn’t
say whether it’s for Unit A or Unit B, so it’s no good. I
don’t consent to your coming in.
This warrant is four months old. It’s not valid anymore. I
don’t consent to your coming in.
This warrant doesn’t have a judge’s signature, so it’s not
valid. I don’t consent to your coming in.
This is a laundry receipt, not a search warrant. I don’t
consent to your coming in.
Now, just because you point out a mistake in the warrant and
withhold consent, that doesn’t mean the officers won’t come in
and search. The police may decide to ignore your statements; or
the warrant may, in fact, be valid. Your job is simply to create
ammunition for your lawyer to defend you with later on, by
showing that the police didn’t “make an honest mistake” in
relying on that warrant. Memorize what the police say in
response to your showing them the error in the
warrant—especially if it’s something like, “I don’t give a shit
what your address is.”
There are other parts to a search warrant that may be relevant
during the course of defending a criminal case, but they’re not
as useful while the police are right at your door. For example,
search warrants must specify what is being looked for and which
parts of your home, vehicle, etc. can be searched. However, as
you can see in the samples, search warrants usually have a whole
long list of things to look for and places to look in. This
gives the police plenty of room to maneuver. Nonetheless, you
should make notes (written notes if possible, otherwise mental
notes) about where the officers search and what they move.
Normally, search warrants must be executed during daylight
hours, unless the warrant includes specific permission for the
officers to serve it at night.
While executing the search warrant, the officers are allowed to
detain anyone who happens to be present. The police can pat down
the people they’re detaining,3 but cannot search any
of them more intrusively, unless the warrant specifies that
particular person by name. (The second of the
sample search warrants includes a person to
be searched, as well as a place.) However, it’s not unusual for
police who are searching pursuant to a warrant, to discover
things that give them probable cause to arrest some or all of
the people present—and once a suspect’s been arrested, the
officers can search her clothing, body, etc.
Some search warrants include permission for the officers to
answer your telephone while they’re on the premises searching.
The police pretend to be you, or someone who’s a part of your
household, business, etc. They try to get the caller to say
things that can be used against you (or against the caller) in
Most searches are very destructive. Your property is likely to
be thrown about and damaged. So after the police have gone, take
three or four dozen photographs of the place, before doing any
clean-up. These may be useful in defending against criminal
charges and/or in suing the police. Make sure you’ve got good
enough lighting that the photos will come out well.
1. If the police kick the door in and point guns at you,
screaming, "Police! Down on the floor, nobody move," you can
skip attempting to read the warrant, and instead just keep
your hands in view and hold very still.
2. A magistrate is a subspecies of judge.
3. During a detention (as opposed to an arrest), the police
are allowed to pat down the suspect, in order to protect
themselves from hidden weapons. This search is limited to
feeling the surface of clothing, and does not include
emptying the suspect's pockets or undressing the
Back to contents
Law enforcement officers can search without a
warrant under a wide variety of circumstances. Among these,
there’s only one situation in which you have any chance of
preventing the intrusion—and that’s by saying “I don’t consent”
when the police ask whether they can search. This is a powerful
tool for using your civil rights, as important as remaining
silent and asking to see a lawyer.
The right that upholds your privacy is the Fourth
Amendment to the U.S. Constitution, which protects your body,
home, papers and possessions from unreasonable searches and
seizures. Law enforcement agents are forbidden to violate your
privacy unless they have a specific legal justification, such as
executing a valid warrant or following a fleeing suspect in hot
pursuit. If officers are asking your permission to search, that
means that they don’t honestly believe they have one of these
lawful excuses—so they’re hoping that you’ll foolishly give up
your rights and consent to the search.
An officer’s request to search often sounds like
an informal order, as in:
you show me what you’ve got in that bag?
been a report of an incident near here. I want to come in
and take a look around.
The officer won’t point out that you have the
option to refuse. So it’s up to you not to open or unpack
anything, until you’ve verified that the police are giving you
an actual order. You can say, “Are you just asking me, or are
you ordering me?” Either the cop will give up, or he’ll
specifically order you to comply with the search.
Obviously, if the officer just leaves you alone,
you’re in good shape. And even if the officer insists on
searching over your objection and finds something incriminating,
you’ll have prevented the prosecutor from arguing that you
consented to the search—which gives your lawyer a better chance
of getting the evidence suppressed, on the grounds that it may
have been seized illegally.
When the police imply that you’re hiding
something, remember that you don’t have anything to prove. If
the police are asking permission to search, that means you’re in
the position of power. To use it, all you have to do is say, “I
Saying “I don’t consent” may seem a little
formal, but it helps keep the police from claiming that they
thought you gave them permission. Many cases have been lost
because the defendant was too polite or intimidated to refuse
consent clearly. For example, if you said, “I’d rather you
didn’t come in,” it could be argued that you were permitting the
officers to enter your home, while just expressing a little
discomfort about it.
Law enforcement agents may try to invite
themselves into your house, even though they don’t have a valid
legal reason for entering. However, the right to privacy in your
own home is very strong,1 provided that you stay
alert and say “I don’t consent” when the police ask to come in.2
It’s even easier to do this if you keep the door closed while
you refuse to give them permission:
The police will often tell you they don’t need a
warrant to come into your house, because they have a legal
rationale such as probable cause. That may or may not be true.
But it’s always safest to reply: “I don’t consent to your coming
in.” This statement cannot harm you, and it will be helpful in
court if the police are wrong or lying.
If the police insist on coming in after you’ve
refused consent, stand back and let them through the door—but
remind them, even as you’re stepping aside, that you still don’t
consent to their entering. Do not physically resist the police
when refusing consent, because you’re likely to get hurt and
charged with obstructing or assaulting an officer.
Sometimes, the police will threaten you or
bargain with you, to get you to consent to a search of your
home. For example, the officer may say, “Look, if I have to go
back downtown and get a warrant, I am not going to be happy. And
if that happens, by the time I get through searching, this place
is going to look like a hurricane hit it.” This isn’t
meaningful, because the police normally trash your house anyway
when they search. You can expect your home to be “tore up from
the floor up,” so you might as well refuse consent and see
whether the officer can actually obtain a warrant.
What’s really scary is when the police threaten
to take your kids or pets away, if you don’t consent to a
search. The less-subtle threats sound like this:
You want to do this the easy way, and just
let us in? Or you want to do it the hard way—we go get a
warrant and while we’re at it, we call Child Protective
That’s a nice little dog you got there. Why
don’t we come in and do a walk-through, to make
sure everything’s okay? Or, we can go get a
warrant. Then we’ll come back, bust you, and send
your dog to the pound. You might get out of jail
before they put him to sleep, or then again you
Whatever the threat is, you shouldn’t consent to
let them in. If the police don’t come back, then they couldn’t
really get a warrant and you’ll have called their bluff. If the
police do come back, you’ll at least have had time to call
friends or family to come get your children or pets. And you’ll
have been able to call a lawyer for advice or help during the
It’s critical that all the people who live in
your home, including temporary houseguests, understand that they
must not consent to let the police enter or search. (Your door
chain is only as strong as its weakest link.) The police can
rely on consent from anyone who appears to be a resident or
lawful user of the property. So you have a real problem if the
person who answers the door is just a friend who came to dinner,
who doesn’t know to say, “I don’t consent.” One way to prevent
accidents is to post instructions inside, on or near the door,
Officers can even receive consent to enter your home from
school-age children, so it’s important to teach the kids, too,
about their Fourth Amendment rights and the policy of your
If you’re a tenant, your landlord is not entitled
to let the police enter your home without a warrant, unless
there’s a provision in your lease authorizing the landlord to do
so. So, if you rent, check your lease. Look for a sentence or
two that says something like:
Landlord reserves the right to allow entry of law
enforcement officials, upon request.
Landlord may admit law enforcement personnel onto
premises, as needed, to further investigation or prevention
of illegal activities.
Such clauses allow your landlord to consent to
officers’ entering your home, whether you agree or not.
1. The Bill of Rights was written after the American
Revolution, by people who personally remembered abuses of
power by the British government, particularly the searches
conducted by revenue officers. These officers were issued a
kind of all-purpose serach warrant, called a "writ of
assistance," that allowed them to search wherever and
whenever they wanted to. The 4th Amendment was designed to
prevent this from happening again—but it's not much good if
you forget and give consent to search.
2. You'll have noticed that vampires can't cross your
threshold either, unless you invite them.
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Types of Warrantless Searches
The following are some of the situations in which
law enforcement agents can search without a warrant. But never
just agree to a search because it appears that one of these
reasons applies: make sure that the officer gives you a direct
order, so it can’t be argued that you consented to the search.
typical condition of court supervision (probation, parole,
supervised release) is that law enforcement agents are allowed
to search your person, vehicle, home, and/or workplace without
probable cause (see
Searches While Under Supervision).
Search Following Arrest
When you’re arrested, the officers can search your body and the
belongings you have with you. If you’re indoors, the officers
can search the area under your immediate control (the distance
to which you can lunge). Officers can have blood samples or
fingernail scrapings taken, to preserve potential evidence that
would otherwise disappear.
you’re arrested in a car, the officers can search the passenger
compartment, because that’s the area under your immediate
control. Whether or not anyone’s been arrested, if law
enforcement agents have probable cause1 to believe
that your vehicle contains proof of a crime, they can search it
without a warrant—and open any container in the car that might
hold the items they’re seeking. If your car is impounded for any
reason, even for just being in a tow-away zone, the officers can
search the whole vehicle, including the trunk.
“Exigent,” in this context, means urgent, a circumstance that
demands immediate attention. Law enforcement agents can enter
when there’s a fire or other danger, to deal with it or to
rescue people, and they can investigate the cause of a fire for
a limited time. In addition, officers can enter in hot pursuit
of a serious criminal, or to capture one who’s about to escape.
Judges usually find that if the police had less than half an
hour in which to act, then proceeding without a warrant is
When officers hear a cry for help, they can enter a building in
response. If law enforcement agents believe that a child is
being abused or is in other immediate danger, they can enter the
premises to rescue her.
Students at Public Schools
school grounds, school officials can search a student and the
belongings she’s carrying, if they have “reasonable suspicion”
that the student has violated the law or a school rule.
Reasonable suspicion is a lower standard than probable cause.2
The U.S. Supreme Court hasn’t yet analyzed whether a student has
a right to privacy in her locker or desk. Various lower courts
have produced conflicting opinions. Under the circumstances, a
sensible student would not want to keep her most private
possessions at school.
The courts sometimes find drug testing constitutional. High
school students can be required to submit to random drug testing
in order to engage in sports, band, chorus, or academic
competitions. Employees in certain high-risk jobs can be
required to drug test (such as railroad workers who’ve been in
an accident or broken safety rules; or applicants for U.S.
Customs jobs that relate to drug-smuggling or that involve
carrying a gun).
Passengers on airlines can be required to go through metal
detectors and submit to searches of their bodies and their
possessions, before boarding the plane. Of course, a passenger
may change her mind and decide not to take the flight after all,
in which case she can’t be searched. However, once the passenger
has cooperated with even part of the search process—by handing
over her luggage or going through the metal detector—she cannot
stop the process until the authorities are completely done
1. and 2. Probable cause is the amount of proof required to
get a search warrant or arrest someone. Reasonable
suspicion is the amount of proof required to detain
U.S. citizens do not have to carry identification with them.1
Occasionally, cities or counties try to pass
“anti-vagrancy” laws requiring everyone to carry identification,
but such provisions have always been held unconstitutional when
appealed to higher courts.
However, in order to drive most vehicles, you are
required to have a license and to produce it on demand. Failure
to have your driver’s license with you while driving your car
can result in a ticket or even arrest. When you’re simply
traveling, you may drive through other states relying on the
license issued in your home state. But if you move to a
different state, you’ll have a limited amount of time (for
example, 30 days) to get a driver’s license for your new home
state. If your license is suspended in a particular state, you
can’t drive in that state at all, no matter which other states’
licenses you possess—it’s your privilege to drive that’s been
cancelled, not just the piece of paper the state issued you.
have been more frequent attempts lately, to pass laws that
would issue each U.S. citizens a "national identification
card" and/or require everyone to carry identification with
them at all time. No such legislation is in effect,
however, at the time of this printing (Novemberr, 2004).
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The following explanation applies to situations in which you’re
approached by law enforcement agents who ask for your name. It
does not apply when you’re asked for identification while
seeking to pass through a security checkpoint—in that case you
have the option of maintaining your privacy by staying away.
The law is murky about security checkpoints at buildings and
events. In the current political climate, judges are likely to
support maintaining security at the expense of individuals’
So, assuming that a law enforcement officer comes to you and
asks for your name, whether you’re required to answer depends
(1) whether you’re in custody and
(2) which state you’re in.
you’re not in custody, then you never have to give your
name. This applies in every state. However, sometimes it’s a
little hard to tell whether or not you’re in custody (which is
defined as “not free to go”). Obviously, you’re in custody if
the police have handcuffed you or ordered you to stay put. But
sometimes an officer walks up and stands in front of you, or
just starts talking to you…and you may not be able to tell
whether it’s okay to leave. So you must ask, “Am I free to go?”
If the officer doesn’t respond by clearly ordering you to stay,
then you should calmly walk away without saying anything
you are in custody, you may be required by law to give
your name, depending on which state you’re in, and whether
you’re merely being detained or have actually been arrested.
Some states have a law that you must give your name when you’re
detained. Some states have a law that you must give your name
after you’re arrested. Some states have both laws. And some
states have neither. For example, the State of Nevada has a
stop-and-identify law that requires you to give your name when
you’re detained; 2 by contrast, the State of New
York has a stop-and-identify law that merely allows an officer
who detains you to ask your name, but doesn’t require you to
answer. Given these variations, you should consult a local
criminal defense attorney to make sure you know the requirements
for your particular state. First, find out whether there’s a
state law that requires you to give your name during detention
or after arrest; and then ask how the Hiibel case affects
the way your state’s courts interpret these laws.
a practical matter, if you’re detained or arrested, you’ll
usually have to give to your name to have any chance of being
released promptly. Even if you’re only being detained, the
police will generally hold you until they determine who you are
and whether there are any warrants for your arrest. And if
you’ve been arrested, you won’t be considered for release unless
you provide your name and address. Nonetheless, you may choose
to withhold your name on principal, which is legal in many
states. Of course, you may have to remain in custody while
making your point, but you’re not necessarily breaking the law
by refusing to give your name.
The important thing to remember, whether or not you give your
name and address, is that you should not answer any other
questions at all.
1. Detention is a temporary period of custody during which
the officers are deciding whether there’s a valid reason to
arrest you. It often blends into arrest. (See
Arrest) Under both detention and
arrest, you can be handcuffed or placed in a squad car—and
the police don’t necessarily announce “You’re being
detained” or “You’re under arrest.” So it may be hard to
tell which type of custody you’re in, without asking.
2. The U.S. Supreme Court decided that Nevada’s particular
law is constitutional in June, 2004, in Hiibel v. Sixth
Judicial Dist. Court, 124 S.Ct. 2451 (2004).
3. For an example of how to analyze the scope of a state’s
stop-and-identify law, see
When Do You Have to Give Your Name at the RNC Protests?
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Government surveillance can take many forms, some of which
require a warrant or other court order, and some of which
require no authorization whatsoever.1
If you’re in a place open to public view, you can be watched,
photographed or videoed without notice or permission. This means
that your picture can be taken while you’re walking around town,
driving through an intersection or sitting in a stadium. In
fact, you don’t necessarily have to be in a public place. If
you’re visible through a window, your image can be recorded even
though you’re inside your own house.
Law enforcement agents can also fly over your property in a
plane or helicopter—even as low as 400 feet—looking for illegal
activity such as marijuana cultivation. Naturally, they can take
photos while they’re at it.
Conversely, there can be private spots in public places. In a
public toilet, you can’t legally be watched or photographed
while you’re inside a stall with the door closed, because then
you’re not in the public view. Generally, when you’re in a place
where passersby can’t see you—where you have a “reasonable
expectation of privacy”2—the government is not
entitled to observe you covertly.
Remember, though, that if you’re given notice of potential
surveillance, you lose your reasonable expectation of privacy.
Examples of such notices are: “dressing rooms are monitored to
deter shoplifting” or “these premises are protected by a closed
circuit security system.”
photograph surveillance is used now to detect and record
criminal activity. It will also be used in searching for
particular individuals, as facial recognition technology becomes
1. As with
most areas of the law, the rules concerning surveillance
vary to some degree from state to state. This section
discusses federal law, which in the context of surveillance
constitutes the minimum standard of privacy protection (such
as it is.) For detailed, up-to-date information on state
and federal government surveillance, among other topics, see
the Electronic Frontier Foundation's website:
2. "Reasonable expectation of privacy" is a phrase that
comes up a lot in legal arguments involving searches and
seizures. It relates to the rights provided by the 4th
Amendment to the U.S. Constitution. See
Searches Based on Consent.
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When you’re speaking on the telephone, you have a
reasonable expectation of privacy—unless there’s someone
standing near enough to overhear. To listen to your phone
conversations secretly, law enforcement agents need a wiretap
warrant. Wiretap warrants have rather strict requirements. The
1. must show probable cause that a
specific crime has been or is being committed;
2. must list names of specific person(s)
to be overheard;
3. must give detailed descriptions of
subjects to be overheard;
4. must stop listening within 30 days (or
seek a 30-day extension);
5. must include provisions for
terminating the wiretap; and
6. must report to the judge concerning
Wiretap warrants are more trouble for the police
to obtain and report on than regular search warrants, so they’re
less commonly used. By contrast, law enforcement agents
frequently employ a “pen register” and/or “trap and trace
device.” A pen register is a list of the telephone numbers of
outgoing calls from a particular phone line. A trap and
trace device collects the phone numbers of incoming calls
to a particular line. Both types of surveillance collect the
time and length of the calls, as well. To utilize a pen register
or trap and trace device, the police just need a court order,
which they get by showing that the information derived would be
relevant to an ongoing criminal investigation.
For an important case, the officers will still
want a wiretap, since it reveals the actual conversations, while
a pen register or trap and trace device just provides a list of
Note that law enforcement agents can obtain voice
mail with a regular search warrant—they don’t need a wiretap
warrant. Many people prefer to use an answering machine, rather
than a voice mail service, because it provides more control over
the privacy of stored messages.
There are two situations in which investigating
officers can legally listen to and record your phone
conversations without getting a wiretap warrant
calls from a prisoner in a jail, prison or
immigration detention facility (including calls from a
prisoner to a lawyer)
calls to or from an undercover officer or an
Sometimes, while on the phone, people speculate
or make jokes about the line being tapped. This is a poor idea,
since acknowledging that someone may be listening means that you
don’t have a reasonable expectation of privacy. If you’re on the
phone and someone does make a stupid comment about the line
being tapped, say: “That’s a silly joke. I believe that I have a
reasonable expectation of privacy in this phone conversation.”
There are certainly instances in which law
enforcement agents listen to phone conversations illegally. Such
unlawful activities may not come to light if the officers are
clever in laundering the information they’ve obtained, for
example, attributing it to a confidential informant. It’s easier
for law enforcement to listen illegally to a cordless phone or a
cell phone, than to a corded phone (the kind that has a curly
cord running from the receiver to the phone itself).1
1. Although many telephones are advertised as being
particularly secure against eavesdropping, surveillance
technology is improving all the time. The system that
ensures privacy today may not do so tomorrow. In the end,
the most private conversations are those that are conducted
while walking around outdoors - assuming the person you're
talking to isn't an undercover officer or an informant.
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Mail cannot be opened without probable cause, but
no authorization is needed for mail to be sniffed by law
enforcement dogs trained to seek drugs or other contraband.
Mail sent or received across the national border
can be opened and searched, if there is “reasonable cause” to
suspect that it contains contraband, however, the officers are
not supposed to read any accompanying correspondence.
Mail sent to or from a prisoner in a jail, prison
or immigration detention center, can be opened and read by the
authorities. Letters to or from a prisoner’s lawyer can be
opened and shaken out, but not read. However, it’s important to
verify with the particular facility exactly how to label the
envelope, to make sure it will be treated as confidential legal
mail. For example, one institution may want you to write
“attorney/client correspondence,” while another may tell you to
put “legal mail—privileged and confidential.”
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Once you put your trash out to be
picked up, on the curb or in a dumpster, you’re considered to
have abandoned any claim to it. So, since it’s no longer your
property, it’s not protected by the Fourth Amendment. You might
consider using more thorough methods of disposal, such as
incineration, when privacy is particularly important.
Back to contents
Surveillance of Internet Activity
The Internet is an efficient, but not
particularly private, method of communication.
To begin with, whatever you say in a chat room or
IRC channel is necessarily a public statement—you don’t have a
reasonable expectation of privacy in this context. Using a
nickname or handle doesn’t guarantee that you’re anonymous—such
identifiers can generally be traced to their owners.
In addition, your Internet Service Provider (ISP)
may have already put you on notice in their “Terms of Service”
that, under certain circumstances, they’ll voluntarily disclose
“content”—not just illegal content, but also material that may
only be “vulgar” or “otherwise objectionable.” And with a simple
subpoena, the government can obtain the content of users’
communications as well as information about users, including
addresses and financial data (such as credit card or bank
There has been an increasing amount of litigation
and legislation concerning Internet privacy. For example, the
USA PATRIOT Act1 allows law enforcement agencies to
monitor Internet usage and communications to a high degree.
The USA PATRIOT Act extends the idea of pen
registers and trap and trace devices to email. With an easily
obtained court order, law enforcement can gather the addresses
and routing information that are part of every email message.
Yet there’s a big difference between phone calls and email. It’s
easy to track phone numbers without listening to the content of
phone conversations; but it’s hard to separate addresses and
routing from the content of the email messages, because the
information is packaged and transmitted together.
With somewhat more effort, the government can
also get a wire-tap warrant for your email, which lays bare all
aspects of your electronic communications.
The USA PATRIOT Act allows law enforcement agents
to monitor “non-content” 2 web surfing, as long as
they get a court order (for which they only need to state that
the information is relevant to an ongoing criminal
investigation). And the USA PATRIOT Act permits ISPs to give the
government all “non-content” information about your online
keep the content of your electronic communications private,
encrypt them with PGP Mail. PGP stands for Pretty Good Privacy,
and it’s been proven strong enough to deter government attempts
to penetrate your email. To get the latest version of PGP Mail
(either the complete version3 or the freeware
version), go to
http://www.philzimmermann.com/. (Note that
Zimmermann ends with two n’s.).
1. The USA PATRIOT Act (Uniting and Strengthening Americans
by Providing Tools Required to Intercept and Obstruct
Terrorism Act of 2001) was made law on 10/26/01.
2. The USA PATRIOT Act refers to "non-content" material,
but this term has not yet been defined.
3. The complete version comes with PGP Disk, an application
that encrypts data on your computer and your storage media -
an excellent idea!
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