David S. Mejia's Louisville Criminal Defense Blog
More than 30 years’ experience in the criminal courts defending individuals charged with every category of felony and misdemeanor offenses has taught me something present in virtually every police-citizen encounter—whether the law enforcement officer is a federal agent or uniformed policeman—they wield an ever-present power to intimidate. Faced with police authority, people give up their rights. The mere presence of a law enforcement official in what is called the initial police-citizen encounter, intimidates virtually every person into almost mindlessly giving up their dual right to silence and to counsel. Law enforcement officials rely on people’s apparent ignorance of their rights to refuse consent to search, to decline to answer questions, or to reject the notion of supplying evidence against themselves. This, of course, is exactly what police officers so desperately need in order to arrest and successively prosecute. Almost all my new clients—with rare exception—(before talking to me) believe they didn’t have the right to refuse a police search request; or to answer questions, even if the search or statement would provide evidence of wrong doing. Why is this?
Virtually every citizen knows about the Miranda warning (which requires police to inform individuals under arrest of their right to silence and the right to an attorney, and that if they relinquish these rights, what is said can and will be used against them in a court of law), yet when confronted by police, people consent to searches of their persons, automobiles and homes when they do not have to or they respond to police questioning by incriminating themselves when they are not required to. This occurs, I believe, either because the officer confronting them employs subtle coercion, or outright lies. Police lie. They do it all the time, and the United States Supreme Court has ruled that police can lie to you in order to extract a confession. Frazier v. Cupp, 394 U.S. 731 (1969).
Most believe their refusal to answer questions or to give consent to search will “make it worse” or their invocation of the precious right to silence or to counsel will “make them [look] guilty”. The opposite is true. In the Supreme Court case of Doyle v. Ohio, 426 U.S. 610 (1976), it was ruled that a man’s post-arrest silence cannot be used against him at trial. Doyle was a drug trafficking case where the accused testified at trial in his own defense that he was framed--information he did not give the police during their investigation. Over the prosecutor’s attempt to use his silence against him as an inference of guilt, the Supreme Court, in protecting his Fifth Amendment Right to Silence stated that the Miranda decision compels the conclusion that the warnings mandated by Miranda v. Arizona, 384 U.S. 436 (1966), as a prophylactic means of safeguarding the right to silence (Michigan v. Tucker, 417 U.S. 433 (1974)),
- [R]equire that a person taken into custody must be advised immediately that he has the right to remain silent, that anything that he says may be used against him, and that he has the right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested….while it is true that the Miranda warnings contain no expressed assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. (Doyle v. Ohio, 426 U.S. 610, at 617-618 (1976)).
In a more recent (though unpublished) decision from the Supreme Court of Kentucky, the Court held that the Commonwealth may not use pre-arrest, pre-Miranda silence as proof of guilt in their case-in-chief:
- The officer [. . .] testified that when he arrived at the hospital and requested that Appellant submit to a portable breathalyzer test, she responded: "My father told me not to talk to the f____n' police, see my attorney." Although not an ideal statement, Appellant's chosen method of invoking her right to remain silent was effective, as the invocation of the right is afforded a liberal construction and does not require any specific combination of words to garner its protection. See Hoffman v. United States, 341 U.S. 479, 486 (1951); Quinn v. United States, 349 U.S. 155, 162 (1955). At the time she made the statement, Appellant was not in custody and had not been read her Miranda rights. The issue, however, does not concern whether Appellant invoked her right, but whether Appellant's pre-arrest, pre-Miranda invocation of her Fifth Amendment right to remain silent arising out of official compulsion may be used in the Commonwealth's case-in-chief. We hold that it may not. Baumia v. Commonwealth, No. 2011-SC-000279-MR (Ky. 2013).
“NO” MUST BE SAID CLEARLY
So long as an officer does not force a person to actually do something, courts almost routinely find that individuals act voluntarily in consenting to searches or answering questions before or after arrest even when a normal human being would feel intimidated and not know of their right to refuse an officer’s request to answer questions or to allow a police officer’s entry into a car or home to conduct a search. In Florida v. Bostick, 501 U.S. 429 (1991), the Supreme Court ruled that when a citizen, prior to arrest, does what a policeman tells him to do, such (even abject) compliance to otherwise illegal police authority is viewed as “voluntary” compliance with their “requests”.
Often times, uniformed traffic patrol officers know this and at a routine traffic stop will firmly say things like, “I’ll need to take a look in your trunk” or, when standing at the front door of a person’s home a plain clothed detective will insist on entering the premises giving no time for a response, let alone a refusal, by saying to the homeowner, “It will be better if we talk inside” then immediately walk forward, past the homeowner at the doorway, and into the house. This, in Kentucky, is commonly known as “knock and walk”. Under the law, since such police-citizen encounters typically precede any arrest and are done without a Search Warrant, there is no Miranda warning required, the home-occupier’s right of refusal is not discussed and his silence in the face of the officer’s entry is deemed “consent” despite the absence of an actual request to enter or an articulated-voiced approval of the officer’s entry. Thereafter, anything the officer sees within the home, such as contraband or criminal proceeds, are considered in “plain view” and therefore useable as evidence to justify a subsequent arrest and evidence that may be used in court to establish criminal guilt.
Unless and until the citizen actually says, “No” or “I do not want you to do that” or “you do not have my permission” to enter, to walk into my home, or to open my car door or trunk lid and search my car’s interior, the ambiguous silence in the face of otherwise illegal police entry is seen by the courts as granting to the police permission to do something that the Constitution simply does not allow.
HOW TO SAY “NO”:
- Do not raise your voice
- Make no sudden movements
- Speak calmly and as confidently as possible under the circumstances and ask the following questions:
- Am I under investigation?
- Am I under arrest?
- Can I go now?
- Are you asking for my consent to answer your questions or to search my property?
- You do not have my permission to enter my car
- You do not have my permission to enter my home
- Do not resist arrest
- Do not argue with the officer
- Do not touch the officer
- If in the face of your refusal to answer questions or give consent the officer threatens to get a warrant, or to still enter and search your vehicle or home—stand aside and calmly repeat “you do not have my permission to do this”
- Tell the officer you desire to talk to a lawyer
- Understand that the policeman is doing his job
- If a policeman recovers criminal evidence or once you admit to violating the law, any express or implied police promise that it will be “better” if you waive your rights, or that it will “help you” to give consent to search, will not alter or change anything. You will be arrested. You will be prosecuted. Your words will be used against you and the evidence obtained will likewise be used against you later in court.
As a practical matter, once a police officer, detective or agent uncovers evidence of a crime, either from an oral admission, confession or by an individual’s allowing him to search, observe and see contraband or other physical evidence establishing the commission of a crime, that officer has no real option but to arrest, and give the evidence to a prosecutor. Thus, the prevailing belief that cooperating with the police, answering questions or turning over evidence “will make it better” is simply false. Finally, when considering the relative position of police to suspects or targets (even one subject to a routine traffic stop) believing that a policeman is “on your side” or “will help you” is as likely as a New York Yankee batter going to the plate in a Boston Red Sox game will do what he can to help Boston win the baseball game. That, will never happen. So it is with police.