When Dealing with the Police, Part 1

How should one act when dealing with the police?

Most of us go through life and, other than a speeding ticket or maybe fender bender, never have any real direct contact with the police. Some have minor interaction for a variety of reasons; a few have a real relationship with the police.

Whether for minor traffic infractions or something more major, there are some simple rules to follow when dealing with the police that help make the experience less stressful. Over the coming weeks I’ll post some comments on this topic. However, to have this discussion, one first needs to be familiar with what the police are; from where the police derive their power and what one’s rights are when dealing with the police.

What are the police?

The Constitution of the United States established 3 branches of government; the legislative, those who make the law; the executive, those who enforce the law; the judicial, those who interpret the law. So, on the federal level, it is the executive branch’s responsibility to enforce the laws made by the Congress and interpreted by the Supreme Court. The FBI is part of the Department of Justice, headed by the Attorney General who answers directly to the President of the United States. More locally, while it differs from state to state, in general, each state has a state police department headed by a chief or commandant who answers to the governor. The local police department is under the direction of a Chief of Police, who in turn answers to the Mayor. The police are the enforcement arm of the government and thus belong to the executive branch at each level.

From where do the police derive the power?

The answer is simple, from the people. The people elect the president, governor and mayor. By doing so, we directly influence the police agencies each of these oversees. I was a police officer in the Salt Lake City Police Department when Deedee Corradini was the mayor of Salt Lake City. I worked for the Chief of Police that she had selected. He had a particular way he wanted police work done and a particular way in which he wanted the police officers to act. When Rocky Anderson was elected mayor he appointed a new Chief of Police. The new chief radically changed the direction, mission and operation of the police department. By electing Rocky mayor of Salt Lake City, the people had significantly changed the way police work in the city was done.

What are your rights?

So what are your rights when dealing with the police? For the answers we should look to Constitution, particularly the 4th, 5th, 6th and 14th Amendments. Let’s start with the 5th and 6th. The 5th Amendment includes language about indictments, grand juries, capital crimes; but what is most significant for any contact with the police is “No person…shall be compelled in any criminal case to be a witness against himself …” The 6th states “…the accused shall enjoy the right… to have the assistance of counsel for his defense.”

What does this mean? In the case of Miranda v. Arizona, the Supreme Court interpreted what the founding fathers meant when they drafted the language used in the these amendments. In plain language what the Supreme Court said was that interrogations by police cannot be coercive. You cannot be made to answer questions that may implicate you in a crime. The Court further recognized that coercion can be mental as well as physical. The police cannot “beat” a confession out of you. Neither can they apply such mental or emotional pressure that you are forced to confess.

Miranda

We have all seen on television someone being read their rights by the police when they are arrested. These are commonly known as Miranda Rights or the Miranda Warning. The right to remain silent, the knowledge that anything you do say will be used against you, the right to an attorney and if you can’t afford one the knowledge that one will be appointed to represent you. This warning is meant to assurethat the person being questioned understands the rights given them under the 5th and 6th Amendments.

What most people don’t know about the Miranda Warning is that the police don’t have to read it to you except when all parts of a three prong test are met. 1 You are in custody. In other words if you want to walk away, you cannot. 2 The custody is by the state, e.g. the police or the district attorney. 3 The police are asking you questions, or interrogating you. So, if an officer detains, and you are not free to walk away, and he or she wants to ask you questions, they must first advise you of your rights. Once detained, this applies to every police officer and any time during that detention. Conversely, if a police officer arrests you but doesn’t ask you any questions, he or she need not advise you of your rights.*

What do you do?

So how does one act when initially contacted by the police? Have a conversation with him or her.

When I was an officer, from time to time I would stop and talk to people in the area I was working. Not to ask them about what criminal deeds they had perhaps committed, most people haven’t done anything illegal. Rather, I would ask what concerns they had about their neighborhood or something similar. However, the instant you believe the questions have to do with a criminal matter and the officer may think you are involved in any way, ask him or her. If the answer is yes or even if you feel they are asking you questions to elicit self-incriminating statements from you, stop talking! You may be completely innocent and feel the need to explain. Don’t! What comes out of your mouth and what goes in the officer’s ear may be two entirely different things. If an officer reads the Miranda Warning to you, you should simply, politely say that you want to talk to an attorney, nothing more. Then call our criminal team. We have the experience and expertise

to assist you in navigating the criminal courts system.

*The Miranda warning does not apply to identifying questions the police may ask such as your name, date of birth, where you live etc.

For further reading see Miranda v. Arizona 384 U.S. 436.