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What To Do If You Are ArrestedCriminal Law - Jacobowitz and Gubits

As a Hudson Valley criminal defense attorney, people often ask me exactly what they should do if they are questioned by the police or are arrested.  People also often have questions about friends’ encounters with the police.  They are often surprised when I tell them that based on the circumstances they described in their story, it sounds like the officer did not need to read cousin Johnny his rights before Johnny made certain statements, or to obtain a warrant to search his car.

Often in life, the rules are often less important than the exceptions. This is certainly the case in the area of criminal law. The police officer’s right to approach you, ask you certain questions, stop you, search you or arrest you varies in different circumstances and locations.  For example, the rules vary based on whether you are in your home, your car, or on the street.  The rules also vary depending upon the information the police officer may have at hand prior to and then during the encounter.

The average citizen is not going to know all of these rules during a police encounter and should therefore never attempt to debate the police officer or refuse to cooperate.  Reacting with belligerence, disobedience, or running away will often justify an escalation of the situation from a mere inquiry to a full blown arrest.  That is why the best protocol for the average citizen to apply in any encounter with the police is to be polite, calm and, aside from invoking the following basic rights, silent.

Initially, it is advisable to produce identification and tell the officer your name if you are asked.  In a traffic stop, this is required, as you must produce your license.  On the street, this is not strictly required in the Hudson Valley as New York has no law requiring people to carry identification.  Be that as it may, it is a silly reason to make the encounter with the officer unnecessarily adversarial at its inception, and, if the officer can articulate some suspicion regarding your presence in the area, you can be detained until properly identified.  It is unlawful to provide a false identity.

Beyond that, the best way to proceed in a police encounter is to politely decline to answer any questions.  Not all questioning must be preceded by “Miranda” warnings under the law.  For example, at a traffic stop, Miranda is not required before the officer asks you where you were going, coming from, or whether you have been drinking.  Any answer you give to such questioning is admissible against you in a later court proceeding.  Regardless of where the police encounter takes place, until the officer actually tells you that you are under arrest, the best course of action after identifying yourself is to politely say “I’d prefer not to answer any questions, am I free to leave?”  Do not think you will talk your way out of being arrested; if the officer already has probable cause to arrest you, you will be arrested regardless of what you say.  If he does not, your silence cannot be the reason you are arrested. Talking can only provide the probable cause that the officer may not have otherwise had.

If you have been told you are under arrest, continue to invoke your right to silence, but now, post-arrest, you must also invoke your right to counsel.  The police are allowed to try to get information out of you so long as they are not threatening or coercing you to speak. When they attempt to question you, you must say only “I need to speak to an attorney before I can decide whether to speak with you.”  In addition to the right to an attorney, you have the right to call a friend to notify them within a reasonable time of your arrest. If it is 3:00 a.m., you may be unable to reach an attorney or a friend.  In that scenario, unfortunately, you’re just going to have to wait and continue to invoke your rights to silence and counsel.  Do not ever think you will talk your way into being released; all you will do by answering questions is provide the police more evidence against you.

It is also true that you should not debate the police when it comes to searches.  Usually, the police need a search warrant, but not always.  The legal principles that permit warrantless searches can be quite complicated and the average person is not going to figure them out during the police encounter.  If you are arrested, you and the immediate area around you can be searched without a warrant, for example.  Regardless, when the police begin any search, simply always politely say “I do not consent to this search.” Do not, however, interfere with the search.  It may well be lawful regardless of your lack of consent.  However, if you politely say you do not consent, it will protect your rights later on in the case if the search in fact was improper.

The bottom line is that you should not attempt to debate the law with, or outsmart, the police. Do not take it upon yourself to try to end the encounter. Rather, invoke your right to silence at all times and politely indicate that you do not consent to any searches.  If you are arrested, also invoke your right to counsel.  While the encounter may be much longer than you wish, taking these measures will give your qualified Hudson Valley criminal defense attorney the best chance to successfully resolve your case.


Christopher J. Cardinale is an associate attorney with the firm and practices Family, Matrimonial and Criminal Law.

He can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.[/column] Facebooktwittergoogle_pluslinkedinmail

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