In this Issues & Laws Section, Scott & Medling provide answers to preliminary questions that frequently arise in many criminal investigations including:

Police contact and search for narcotics, specifically marijuana.

Because of the unexpected nature of most investigations, this information may well prove to be invaluable in your defense. You may review the following Q & A to see if it presents any issues relevant to your situation. Do not delay seeking professional consultation because you see an answer you think is applicable to your personal circumstance. Call our office immediately and make certain you have an accurate understanding and receive professional guidance.

Question & Answer

Q: WHEN CONTACTED BY THE POLICE, WHAT ARE YOUR RIGHTS?
A: If you are ever the focus of a criminal investigation, be very wary of speaking to the police. This is the time - before an arrest or a search warrant has been obtained - to first assert your constitutional rights. Never be concerned about what the police think of you. Contrary to what your parents or teachers may have told you when you were a child, the police are not your friends. If they are conducting a criminal investigation they do not mean you well and cannot be trusted to tell you the truth. The law permits them to deceive you about what they know and allows them to trick you. How you handle your first contact with the police will be a factor in avoiding a potential criminal conviction and a prison sentence.

Q: WHAT IS “KNOCK & TALK?”
A: Police have been known to knock on your door in an attempt to engage you in what they refer to as a “consensual encounter.” This is often called “knock and talk.” When the police lack probable cause to make any arrest or obtain a search warrant of your premises, they may hope to trick you into waiving your constitutional rights. They want to search without warrant or for you to speak with them against your best interests. Recent appellate opinions have criticized this practice.
Tell the police that you do not wish to discuss anything with them without first consulting with a lawyer. Be very clear and assert both your right to remain silent and your right to an attorney. “I will not speak to you. I would like a lawyer first.”
If you voluntarily consent to speak with them about their suspicions, you may unknowingly waive your constitutional rights. Always consult a board certified criminal defense attorney before discussing a criminal matter with police.

Q: WHAT DO I DO IF THE POLICE ASK, “MAY I COME IN?”
A: Never let the police enter your home without a search warrant. Tell them they may not enter unless they have a warrant. Evidence obtained from the warrantless search may be used against you because you agreed to the entry. Insisting on a warrant protects you even when you have absolutely nothing to hide. If you consent to a warrantless search you invite them to ransack your dwelling without judicial supervision.

Q: WHAT DO I DO IF THE POLICE JUST WALK INSIDE MY HOME?
A: If the police barge into your home without invitation after you answer the door, immediately tell them, firmly but politely, “You may not come into my home unless you have a warrant. You do not have permission to enter. Leave now.” Do not allow them to intimidate you or put you on the defensive with any lies about “if you cooperate with us it will go much easier on you” or “if you have nothing to hide, why would you object to our looking around?”

Q: WHY IS IT SO IMPORTANT NOT TO SAY ANYTHING TO THE POLICE?
A: Great danger arises from speaking with a police officer (or anyone else not an attorney) about any matter that might be related to a criminal investigation. If you make this mistake then in almost every instance there will be a later problem. The police officer’s version of what you said will be different than what you remember saying. You will be misquoted and that misrepresentation will be unfavorable to you.
It is foolish to believe that the police will correctly represent the circumstances or their dialogue with you during these confrontations. They will not. That is why you must not engage in conversation with them. They have been known to misrepresent what you say and they may tell the Judge that you invited them into your house when you did not. Repeatedly ask them to leave, tell them that they do not have permission to enter without a warrant and that you wish to consult with an attorney.

Q: WHAT DO I DO IF THE POLICE STOP ME WHILE I’M IN AN AUTOMOBILE, TRUCK OR OTHER VEHICLE?
The individual’s right to privacy is not as secure in an automobile on the highway as it is in his own dwelling. The courts more readily find circumstances justifying warrantless search. There are, however, guidelines.
A. When you drive any vehicle, you are obligated to drive one that is fully equipped with all of the required equipment, and you must scrupulously obey the rules of the road or you risk being lawfully stopped by a law enforcement who has occasion to observe you. The following list includes some, but not all of the reasons police can use to pull you over:
1. Both headlights and taillights must be operational.
2. Turn signals must be operational.
3. The tag light must illuminate your license tag.
4. You must not drive a vehicle with window tint that has been applied after manufacture at a level darker than that permitted by law.
5. You must be careful not to drive with your high beams within the city limits or in the face of oncoming traffic or when you approach traffic from the rear.
6. Drive with your seat belt fastened.
7. Children of a young age must be secured in a child car seat.
8. Open containers of alcohol are prohibited.
9. Expired tag.
10. Obviously all moving traffic violations may give rise to a reasonable suspicion permitting a stop and issuance of a citation.

Q: IF I AM STOPPED FOR SPEEDING, WHAT CAN THE POLICE OFFICER DEMAND FROM ME?
A: Once you have been stopped for a traffic infraction, the police officer has the right to issue you a ticket for that infraction. This is a summons and it is not an arrest. Because it is not an arrest he does not automatically have the right to search you or your vehicle.
If you are receiving a ticket for a traffic infraction, the officer may ask for permission to search your vehicle. Do not give permission for such a search without a warrant. If you do so, you may be delayed for hours and your vehicle may be ripped apart in an aggressive search process. Furthermore, if any contraband is located you have waived your constitutional right and made it very difficult for your lawyer to help you.

Q: HOW WILL THE POLICE TRY TO SEARCH MY CAR?
A: After the ticket is written and before it is handed to you, the policeman (affecting a casual manner that is designed to get you off guard) may say: “ Oh by the way, you don’t happen to have any weapons, explosives, drugs, contraband or large amounts of cash in the vehicle, do you?” The driver then responds, “No, sir” at which time the officer quickly replies, “you don’t mind if I have a look, do you?”
BE VERY CAREFUL HOW YOU ANSWER THIS QUESTION! This question is designed to catch the unwary. If you say, “no” meaning that you don’t want him to search it will purposely be misconstrued by the officer who has carefully framed his question so that “no” to him is interpreted as “no, I don’t mind if you have a look.” The question is framed so that a “no” gives permission. Therefore, you are cautioned to state your position clearly and in complete sentences: “No you may not search. You do not have my permission. I do mind and will not consent to a search without a warrant.”
When you tell the officer this, he will have to drop back to Plan B and may not have probable cause to seek a warrant. Resist in engaging in any further conversation with him. Tell him that you do not like the tone and direction of this encounter and that you will not discuss these matters further with him without a lawyer. Ask him if you are under arrest. Tell him you would like your driver’s license and citation so that you may leave unless you are under arrest. Make note of the time because your lawyer will like to know how long you are further detained if the officer does not, in fact, allow you to leave at that point.