How to Protect Myself When Interacting with Law Enforcement

August 12, 2020 Don Pumphrey, Jr. Criminal Defense Social Share

Protect Your Rights When Dealing with Law Enforcement

Most Florida residents will go their entire life without being accused of any criminal activity. Very few can go an entire lifetime without having non-consensual contact with the police. Often this takes the form of a traffic stop, but can also be contact on the street, search warrants, arrest warrants, or a whole host of other ways police may try and contact you. Probably the most important part of a police officer’s job is to investigate crime and secure convictions, not to simply serve and protect. It is crucial that anyone contacted by police invoke all legal rights to avoid legitimate (but unnecessary) or illegitimate criminal charges being levied.

What to do when contacted by the Police?

First and foremost, all U.S. citizens have a Fifth Amendment right against self-incrimination. This is normally referred to as a right to remain silent under the 5^th Amendment. In Florida you must a) offer your name and identify yourself, and b) out loud state you are invoking your right to remain silent. The Florida Constitution takes this right even further and prevents the admission of your silence as evidence of guilty.[i]

[1] There are some narrow exceptions when silence is admissible at trial. These tend to center around impeachment testimony. Fortunately, silence in-and-of-itself does not impeach a Defendant from later making exculpatory statements, courts have concluded that under the Florida Constitution silence is not the “opposite” of any other statements. What the State may do is ask a Defendant who chooses to testify about the silence or refusal to answer questions and then impeach with extrinsic evidence if the Defendant “denies or fail[s] to sufficiently admit his silence.” Howard v. State, 288 So.3d 1239, 1247 (Fla. 2020).

Functionally, remaining silent does not prevent an arrest, or search. It does help your chances later at court and prevents any possible incriminating statements from being accidentally made. Police may ask you to search your vehicle or your person. There are ways police may search you without your consent, but it is highly advised to state “I do not consent to any searches.” This is contradictory to remaining silent, but this is an important exception. If the police are asking for search consent and you reject it, the evidence may be thrown out later if they search regardless. As body worn cameras become more and more prevalent it is going to be easier and easier to show when an individual stands up against police and affirms their rights.

The protection against searches arises from the 4^th amendment. It is far too complicated to espouse the hundreds of years of 4^th amendment jurisprudence, but to put it simply, the police need a reason to search you unless you consent to it. There are a myriad of reasons that have been carved out to allow police to search you against your will. Practically however, most searches are performed and most contraband found, because they simply asked nicely. A police officer asking to search is not your friend, they’re not trying to “eliminate you as a suspect,” “clear you to leave,” or “let you prove you have nothing to hide.” They want you to give up your rights willingly, don’t. Tell them politely that you do not consent to any searches, that you do not wish to answer any questions and ask if you have a right to leave. If they tell you not to leave, calmly ask if you are being detained. At all points during a police contact you are either free to leave, detained, or arrested. The police very well may not let you leave without reasonable suspicion to detain you, but it can help later on to have them on the record telling you that you cannot leave, but also that you are not being detained. No matter how bad the stop is, do not run, do not lie, and do not be rude. Even when all of this advice is followed, you still may be arrested. Keep your cool, do not resist and remember to assert the rights available to you.

Difference between Arrested and Detained

If you are arrested or detained, reaffirm your wish to remain silent, and add a request for an attorney immediately. The police are very skilled at getting people to talk. They may say “I just want to get your side of the story,” “if you don’t explain what happened, I have to assume the other person is telling the truth,” or “if you don’t tell me what really happened I have to arrest you, but I might not have to if you do.”

These are tactics to get you to waive your constitutional rights. Do not fall for them. The constitution is your shield from unfair treatment by police, but just like a shield, you must actually hold it up to stop the assault from getting to you.

If the police have probable cause to arrest you, they’ve already decided to arrest you. If they don’t have probable cause to arrest you, there’s nothing you can say that will get you out of it. Speaking to the police while you are suspected of accusing a crime is like trying to climb out of a hole with a shovel, it might work every once and a while, but most people are going to end up with a much larger hole.

Probably the most important step to take if arrested or detained is to document everything. As soon as you have the ability, write notes about what happened, try to memorize officer names, remember what they said, internalize as much as you can. Officers could lie about an encounter, but it is far more common for their memory to fade and make mistakes in their report. It is crucial to remember exactly what happened so that you can fight for your rights and prevent unjust criminal charges from continuing. If possible, record the incident.

Recording the Police

In the age of smartphones, anyone can fight against police injustice just by pulling out their video app and hitting record. In many states (Florida included) it is important that you are clearly recording the recipient. Courts are split on whether in-person recording of a third party is allowed, but if you announce or show through action that you are recording, you are in the clear. The police may tell you it is unlawful to record them, or that you are obstructing police business, but this is false. All they made to is remove you from the zone of danger. If you are the contacted individual, it is highly recommended to hit the record button, tell the officer you have done so and slip the phone in your pocket so that you can get a full audio account of what is happening. This can prevent dishonest cops from lying about what was said (consenting to a search, statements made), and forgetful officers from accidentally shifting the narrative of what occurs.

Tallahassee Criminal Defense Attorney

Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience representing individuals accused of crimes in Tallahassee and throughout the state of Florida. It is the unfortunate reality that police often get it wrong, not just about who did it, but by illegally investigating a person. Don Pumphrey and the legal team at Pumphrey Law are ready to fight for the rights of those who have been wrongfully accused and/or have had their constitutional rights ignored. The team at Pumphrey Law are dedicated to defending the rights of clients in any circumstance and will fight for the best possible result. Call a Tallahassee criminal defense attorney today at (850) 681-7777 or send an online message today to discuss your rights during an open and free consultation with our legal team.

[1] There are some narrow exceptions when silence is admissible at trial. These tend to center around impeachment testimony. Fortunately, silence in-and-of-itself does not impeach a Defendant from later making exculpatory statements, courts have concluded that under the Florida Constitution silence is not the “opposite” of any other statements. What the State may do is ask a Defendant who chooses to testify about the silence or refusal to answer questions and then impeach with extrinsic evidence if the Defendant “denies or fail[s] to sufficiently admit his silence.” Howard v. State, 288 So.3d 1239, 1247 (Fla. 2020).

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