To Speak to Police—Or Not—That is the Question
We are very happy to present this guest article, written for you by our friends over at Colorado Lawyer Team.
Very important information from a very reliable source.
With the growing unrest with the election, race relations, and the COVID-19 pandemic in America, it’s no wonder that serious criminal activity continues to be investigated thoroughly. Many politicians have ran campaigns promoting “law and order” and “tough on crime” platforms. What’s left out of these types of rhetoric, though, is the lasting effect that even going through a criminal investigation can have on individuals and families. Specifically, even if you’re never charged, you’re shaken. Your family may no longer trust law enforcement. You may have even suffered disastrous consequences like losing your job or your home. That’s why we are proud to offer DIY packages to family members or those under investigation themselves so they can get some information about what rights they actually have. Hint: actually remaining silent is HARD.
Cops Often Lack Communication Skills
Everybody has a bad day now and then, and law enforcement officers are no exception. But there are some officers—just like there are some people—who are particularly difficult and confrontational. Dealing with these types of people when they wear a badge can be challenging, especially if you’re stressed and worried already about being confronted by law enforcement, as most people are.
Fortunately, with patience and emotional restraint, you can effectively defuse these situations. Cops are often trained in “verbal judo” but your average patrol deputy isn’t very good at effective cross-examination. Put simply, cops aren’t lawyers. Cops can lie to you. They can actively deceive you. They can initiate pretext calls or social media contact with you or your loved ones trying to trip you up. That’s why it’s best whenever possible to stay offline, stop texting, and eliminate all contact with an aggrieved party if you’re under investigation. Even in later civil proceedings, social media posts, emails, texts, and voicemails can be damning. And yes, even messages about the case from family members can affect the outcome.
Also, don’t assume that your messages will be read with your intent in mind. We all know how hard it is to get our point across in a text or email to a colleague. Wires get crossed, after all. If there is an “alternate” way of reading your message that could cast you in a bad light, just don’t send it.
Likewise, be aware that everything you say to a cop is likely to be recorded on badge camera, dash camera, or other microphones. With the advent of recording technology, even a simple cell phone recording made by someone whom you presume to be a friend can be damning. Colorado is a one-party-consent state for wiretapping laws, so there is no problem with someone recording your conversations with them in person or on the phone. AND they don’t have to tell you that they’re recording the conversation. So, the best bet is to simply not say anything at all…
Say as Little as Possible & Don’t Admit Anything
Remember how in Law & Order when the police arrest someone and they say to that person: “anything you say can and will be used against you”? Well, that’s a real thing! And it really gets people in trouble—all the time. Help your defense attorney help you by remembering that the best approach when talking to an officer is to say as little as possible, and don’t blab about these things to friends or family, either. Of course, it’s not uncommon for a confrontational cop to try to pressure you into talking or admitting to something you didn’t do. Just keep your cool, and keep your conversation short.
And remember: it’s within your rights to refuse to answer questions without an attorney present. Convey your understanding of your rights to the officer in an even tone and calm manner—repeatedly, if you have to. And, a special tip to remember, just don’t talk about the facts or “what happened” with a badge EVER, and tell your family not to, as well.
Exhibit Non-Aggressive Behavior & Speech
Few things will escalate a situation faster than matching or exceeding the degree of aggression an officer is exhibiting. If the officer yells at you, DO NOT yell back. Speak at a normal, respectful volume. If an officer is staring aggressively, DO NOT stare back. Lower your gaze and break eye contact. If an officer is positioned uncomfortably close to you, remain still and unimposing. Do everything you can to keep calm and stay in control.
Now, we generally don’t post references from Facebook, but with this video from Brooks Gibbs, we couldn’t resist. This video is geared towards helping pre-teens and teens deal with bullies, but enough adults also encounter this type of behavior that it can be applied across the board. Check it out for additional tips and strategies for controlling what you say and how you say it to deescalate any situation.
Demonstrate Respect
It’s easy to quickly lose respect for someone when they are disrespectful or aggressive. Nevertheless, when dealing with a confrontational police officer, consistently demonstrating that you respect him or her—in both your words and actions—can defuse even the tensest of situations. Say things like “yes officer,” “I understand, officer,” and “thank you.” Convey respect in your voice by being polite and kind. Repeat what you understand the officer to be saying, to show that you are listening, and it can come back in positive ways if the case does end up in court. Specifically, the court always likes to hear that those under investigation are “cooperative.” Now, toeing the line of how to be cooperative and not aggressive without giving them any information is difficult. The easiest way to do that is to rely on your rights and calmly assert them.
A Note About Miranda Warnings
Most of us have some idea of what a Miranda Warning is, but few actually know when it’s required. If you’re a fan of cop shows, you may even be able to recite it from memory! Basically, a Miranda Warning notifies criminal suspects in police custody of their rights. It goes like this:
“You have the right to remain silent. Anything you say can and will 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.”
However, they don’t have to read you those rights if you’re not in custody or haven’t been formally arrested prior to questioning you. Even after arrest, police interrogation (any words or questions the officer reasonably knows will illicit an incriminating response) is required. That doesn’t mean they can’t ask you mundane questions, but they cannot interrogate you while in custody without the warnings. And even if law enforcement did forget to read you those rights in custody, it most likely won’t result in your case being dismissed.
So When Is A Miranda Warning Required?
Police must read your Miranda rights if you are in custody, are asking you questions, and are using your answers as evidence in trial. Being in custody means that you are deprived of your freedom of action in a significant way, and can occur in jail or outside of jail. Generally, if you are arrested they have to read you your rights. However, if you are not in custody, officers do not have to read you your rights and your statements can still be used as evidence. In fact, police officers can avoid arresting you until you’ve said something incriminating for that exact reason. They are entitled to detain and ask you what actually happened to determine if they have probable cause for an arrest at all times. You’re not obligated to answer them, though.
If you haven’t been arrested but police are questioning you, it is still advisable to remain silent except when asked for identification. If you have been arrested and are being questioned, the near-universal advice among defense attorneys is to not respond to any questions until after consulting an attorney. Take advantage of your rights and avoid incriminating yourself! State in unequivocal terms, “I understand my rights and I want an attorney.”
Voluntary Statements
If you did answer questions on the scene but not while handcuffed, those statements are generally admissible in court. This is because the encounter was considered consensual, and the statements given were considered voluntary. To determine if a statement was actually voluntary, your attorney might consider:
Whether or not you were in custody
If you requested to confer with counsel
If the officer made or implied any threats
Your mental and physical condition while answering
If the statement was volunteered
How long you were questioned
Where the questioning took place
All of these factors might indicate whether or not your Miranda rights should have been read. The most important thing to remember is that you always have the right to remain silent, even if that right was not read to you.
So What Happens if You Weren’t Mirandized?
If law enforcement did not read your Miranda rights while you were interrogated in custody, your statements generally cannot be used as evidence in trial. Contrary to many TV shows, your charges are not immediately dropped! The failure to read your rights might still benefit you by allowing for the suppression of certain evidence. However, there is usually enough other evidence to continue with the case.
As always, there are exceptions to using your statements if you weren’t Mirandized. There are some statements that can be used in court regardless if your Miranda rights were read or not. These include:
Matters involving public safety
If tangible evidence was found
If a witness was named, police can still use that witnesses statement at trial
“Inevitable discovery” or things the police officers would have eventually found out about anyway
The other complicating factor to remember---if you’re later arrested and the statements of your friends and family are used against you, you don’t have standing to challenge the admissibility of their statements. So, the cops can coerce your loved ones into giving damning evidence against you—even going so far as to violate their rights—and the evidence is still admissible against you. So, again, it’s best to just say nothing at all.
If you Must Get Mad, Do it Later!
Your priority during an exchange with a confrontational cop should be to exit the situation safely and as quickly as possible. When you are away from the situation and in a safe space, only then should you take the time to reflect on and react to the situation. At that point, you can get mad, kick the sofa, crush a soda can, yell at the coffee machine—whatever makes you feel better. Just don’t lose your cool during the confrontation. It won’t end well, trust us.
Next Steps: Contact a Criminal Defense Attorney
Successfully navigating a confrontation with an aggressive police officer is most certainly a win! Sadly, though, it doesn’t always mean you successfully avoided a penalty. Whether the encounter arose from a probation violation, suspected DUI, alleged assault, or other matter, your best bet for protecting your rights is to contact an experienced, local criminal law attorney.
Nicol Gersch Petterson, PC (more commonly known as the Colorado Lawyer Team) is a 7 person law firm serving clients virtually through a third of the state of Colorado. We offer full representation in Criminal Defense and Family Law matters. Our Legal DIY packages help people who need advice like whether they should talk to the police state-wide at a fraction of the price, though, and you can easily schedule a call with one of our attorneys about whether you, your family, or your friends should speak with the police any time! Our phones are answered 24 hours a day, and we’ll get you squared away so you know what your options are and what your next steps look like ASAP.