Over at Popehat, Ken White has another of his posts explaining that the most important thing you can do when talking with cops is to stop:
One of the most consistent messages I offer here is about interactions with law enforcement, and can be expressed in two words — shut up — although “oh you dumb son of a bitch will you for the love of God shut up” might capture the flavor better.
Ken writes about this a lot, as do several other criminal defense bloggers. I’m pretty sure that one of the bylaws of the practical blawgosphere is that every criminal defense lawyer must eventually write a post about not talking to cops.
It seems like pretty good advice. As Mark Bennett says on his brilliant “Million Dollar Legal Advice” page:
If everyone followed this advice:
Many fewer people would be charged with crimes. They would, collectively, be saved millions of dollars in attorneys fees (not to mention lower taxes from needing fewer prosecutors and judges).
Of those charged with crimes, many fewer would be convicted. They would, collectively, be saved countless years in prison.
Of those who avoided prosecution or conviction, many would also avoid the death penalty. Their lives would be saved.
I’ve always had a small problem with this advice, however, because it seems a bit unrealistic. Unless you live the life of a mafia gangster, never talking to cops isn’t really something you can do. And in a routine encounter, refusing to talk seems like a good way to make the police take a lot more interest in you.
Ken responds to that problem:
People ask commonly ask if this advice might lead police to suspect them of wrongdoing, or if it might even lead to their detention or arrest. Yes, it might. Life carries difficult choices and risk assessments. One of those risk assessments is whether, in an interaction with police, it is more dangerous to talk, or more dangerous to shut up. My point, in advocating shutting up, is to suggest that people’s risk assessment is often misguided: distorted by the cultural message that cops are the thin blue line of heroes we should trust, colored by our misplaced faith in our ability to talk our way out of situations, and incorrectly premised on the belief that cops asking questions will react fairly or in good faith to the answers. People substantially underestimate the negative risks of interactions with law enforcement, and substantially overestimate the upside of such interactions.
That sounds reasonable, but I think Ken and the other lawyers are also suffering from some mis-estimations of their own, due to selection bias. Their clients may have gotten themselves arrested by talking to cops, but people who talk to cops and don’t get arrested are not people they meet as clients. Their clients are a biased sample of all the people who talked to cops. From the lawyers’ point of view, nobody ever talks themselves out of trouble by talking to the cops, but the reality is that we do it all the time.
Many years ago, when I was in college, a cop pulled me over at night and came up and asked me if I owned the car I was driving. I explained that it was registered to my father. He asked me a few routine questions, which I answered. It turned out that another cop had seen someone steal a car and radioed a description to the cop who stopped me, but when they realized I wasn’t the guy, they let me go.
A few years later, I was leaving my girlfriend’s apartment at around 1am, and a patrol car pulled up and the officer started asking me who I was and what I was doing out at night. I explained about my girlfriend. He then asked me why I had so many keys on my belt, explaining that some of them looked like special keys that thieves used. (They were actually Medeco high-security keys, but I had the presence of mind not to demonstrate my knowledge of keys and locks to a cop who suspected me of being a thief.) I explained that I worked at a college maintaining equipment and I had to have access to a lot of rooms. I showed him my work ID, and he let me go.
A few years ago, I was walking in a nearby park with my camera and a cop pulled up to question me. He said somebody has claimed I was taking pictures of children. I could have refused to talk to him — taking pictures of other people’s children isn’t even a crime — but instead I answered a few questions and let him look at the pictures on my camera. I quickly got the sense that he was just going through the motions — he didn’t even ask for my name — and after a few more minutes he let me go.
I’ve had a few more routine encounters with the police — traffic stops, reporting crimes, as a witness to a hit-and-run — and they all ended well. Not a scratch on me. Not a night in jail. Maybe clamming up and not talking wouldn’t have done any harm either, but it feels like something that would have drawn more attention to me in what were otherwise routine encounters for the officers.
However, Ken goes on to raise a very interesting point:
My advice to shut up is colored, in part, by privilege. I was reminded of this yesterday when Los Angeles County Sheriff’s Deputies searched Justin Bieber’s house. I praised Bieber for shutting up and declining to talk to the cops, and joked that criminal defense attorneys could shame clients into better practices by asking why they aren’t smarter than Justin Bieber.But Justin Bieber and I — and many of my clients — share a crucial quality: we’re affluent and fortunate. This privilege makes us better able to endure the potential downside risks of shutting up. If we get arrested on a petty or bogus charge by a pissed-off cop, we can make bail. We won’t spend weeks or months in custody on that bogus charge because we can’t scrape together a few thousand dollars. Maybe we’ll spend the weekend in jail, because cops love to arrest you Friday afternoon, but we’ll get out in a few days at most, and in the meantime we won’t lose our jobs. Because we have families and support systems, if we do get thrown in jail on a bogus job by an angry cop, the Department of Child and Family Services won’t take away our children, plunging us into another broken system we have neither the money nor the knowledge to navigate. If the cops tow or impound our car, we can afford to pay the few hundred to few thousand dollars to get it out, and we won’t lose our jobs for lack of transportation. Even if we do lose our jobs because of a bogus and retaliatory arrest, we have savings, and families with savings, and we won’t swiftly lose our homes. If the police choose to retaliate against our silence with petty tickets and infractions and fines rather than arrest, we can fight them or absorb them.
That’s a privilege. Poor people don’t have it. Poor people live on the razor’s edge, and a bogus retaliatory arrest can destroy them. Retaliatory and capricious enforcement of petty crimes and infractions can destroy them financially. Police wield disproportionate power over them, and the criminal justice system and its agendas (like the War on Drugs) disproportionately impacts them. Police are more likely to use force against poor people and for the most part can do so without any significant risk of discipline.
[…]
I maintain my advice to shut up. But I acknowledge it’s easier and safer for me — and for most of the people reading this blog — than it is for the people who most frequently encounter the police.
Scott Greenfield’s thoughts on Ken’s post are thought-provoking as well:
The irony of Ken’s caution is that the folks most in need of this advice are the people most likely to be in the position of being the target of police scrutiny. Thus, those with the least privilege in society are the most likely to be subject to police questioning and the risk of suffering arrest, or at least harassment, for their refusal to answer questions.
(I’m not sure if irony is the right word here. That sounds more like cause-and effect. But I digress.)
While the affluent are miserable at remaining silent, largely because they perceive no threat from the police by virtue of privilege, the poor, the black, the powerless, can’t remain silent because they are the subject of questions so often that the last thing they want is to force the hand of police to arrest them rather than push them around a bit before cutting them loose.
I’m somewhat privileged too. Not as much as Justin Bieber, but enough to realize that poor people, especially minorities, have a lot more police encounters than I do. And yet, as with me, the vast majority of those encounters end without an arrest. We all have a lot more encounters with police than our encounters with criminal defense lawyers would indicate.
Scott has said on numerous occasions that “Don’t talk to cops” is legally insufficient, but I’ve often thought that in its absolutism it’s not very practical either. It’s a bit like telling your children “Never talk to strangers.” That may seem like a rule that will keep your children safe, but then the next time you take them out with you to the mall or the movies or the zoo, what happens? You spend the whole day talking to strangers — clerks, guides, bus drivers, waiters, people you ask for directions. And then one day you drop your children off at day care or preschool where they’re surrounded by strangers, and then when you see them again you ask if they made any new friends. Whatever safety rules you’re trying to teach your children, “Never talk to strangers” isn’t really the rule you expect them to follow, because sometimes talking to strangers is what you have to do, and often it’s a good thing to do.
I think it’s almost as unrealistic to expect people to “Never talk to cops,” because many people can’t afford to pay the price of being uncooperative. (Heck, I’ve read accounts by criminal defense lawyers who answered questions from suspicious law enforcement officers when they didn’t have to — one because a delay would cause him to miss his plane, the other because he had his dog with him in the car and he was worried what would happen to the dog if he was arrested.) And then sometimes the duties of good citizenship demand cooperation with the police, such as when reporting crimes or providing information that assists an investigation.
Maybe we need a better rule.
Ken is right. There are a very few exceptions to the wise advice to not talk to cops, however. One exception is to assert your right to remain silent, otherwise your right to silence can sometimes be used against you if you don’t talk just enough to assert the right to silence. Another exception is to say, “I don’t consent to any search.” Failure to object to a search might be deemed by a court to be consent to the search.
Unless you know for certain that you aren’t a suspect (yes, suspects are often innocent), don’t say a word to the cops except to assert your constitutional rights. The problem is that you might unknowingly be a suspect because you did nothing illegal (or didn’t know you did something illegal) such as being in the wrong place at the wrong time, and you didn’t know your evil-twin just robbed the liquor store that you just happened to be nearby when the robbery occurred. (I have personal experience with having an evil twin, well in this case he wasn’t evil, who could have implicated me if he had actually been a bad guy.)
Another time you might *opt* to talk to the cops, although sometimes a danger to your liberty or bodily integrity, is when, in a particular situation such as at a suspicionless checkpoint where you want to object to checkpoints as violating the Fourth Amendment. I do it a lot, even though I know it is risky. I deliberately go through the checkpoints to complain of how unconstitutional they are (note, the Supreme Court disagrees with me).
It takes courage to not talk to the cops because they effectively bamboozle most of us into thinking that “things will go worse for you if you don’t cooperate.”
I for one refuse to not exercise my rights because the cops will punish me for noncooperation. I do, however, quite often take more chances than most because I despise most police officers because they are the enforcement arm of a corrupt criminal justice system.
Daniel, I don’t generally make a habit of poking sticks at beehives, so deliberately getting stopped at checkpoints is not something that appeals to me, although I can understand the point. And come to think of it, maybe asserting your rights in a relatively low-risk controlled situation like that is good practice for the time when they pull you over in a lonely industrial park at night and you’ve got three kilos of coke and an AK-47 in your trunk…
The feature of simple rules is that they’re simple rules. The flaw of simple rules is that they’re simple rules.
Yup. As I’ve said elsewhere, a rule that is careful, precise, and comprehensive doesn’t do you any good at all if you can’t remember it.
It’s an often pragmatic rule, and can be a valuable rule. But it also depends on a distrust of law enforcement, and a criminal lawyer’s perspective that one’s objective is never to accept responsibility if you can get off.
In contrast, the son of a friend was pulled over while racing, and there was pot smoke in the car (from a passenger). He admitted to the officer what he had done, and the officer didn’t charge him for the racing, thanking him for being forthright. He was able to get the pot matter dropped, and avoided a huge fine. If he had played it adversarially from the start, I have little question that he would have been worse off. (Of course, it didn’t necessarily have to go that way either.)
Hi Jack,
As a former cop, I know that it doesn’t normally go the way it went for your friend. If someone has been caught red handed, then it ordinarily does the person no good to not talk, but it rarely helps and usually makes it worse. Your friend was lucky, and it turns out he was right, but he went way against the odds. (If you know a particular cop is decent, your chances of being given a break are a little better, but even then the decent cop might be with a hardliner cop and doesn’t want to look like a wimpy cop.)
Not talking is more important when the cops won’t find anything (such as the marijuana in your friend’s car) because they have no proof or when they have no authority to search unless you consent to the search, than when the cops have caught you red handed. If the police don’t ask you questions, its usually because they have all the proof they need. If the police don’t ask for your consent to search, they usually don’t need your consent.
Drag racing is considered a rather serious crime. Your friend was lucky.
Cops have figured out the ploy that if you admit to a minor crime, they won’t arrest you for a more serious crime. Drunk drivers often think, “If I admit to only “two beers” (and for some reason it is almost always “a couple” of beers or “two or three” beers), the cop will let them off “for being honest” or because they are too drunk to know that cops can usually tell when the driver had too much to drink and drive. What really happens is that the driver has just given evidence against himself or herself, and gets arrested anyway.
I am concerned more about those who value their constitutional rights and don’t intentionally commit crimes, than I am of the criminal who I hope talks themselves into jail. If you are a criminal that commits non-victimless crimes, I will still tell you you should remain silent (because waiving constitutional rights encourages the police to violate the constitutional rights of innocent people, and it rarely helps them to talk), but you are certainly free to talk and get what is coming to you.
See the book “Three Felonies a Day,” if you think you know you don’t commit any crimes.
Daniel, Thanks for stopping by and sharing your experience.
It’s interesting that you make a distinction between “intentional” crimes and the kind of thing Three Felonies a Day talks about, because the latter is always the sort of thing I imagine for myself — not committing a crime and trying to get away with it, but doing something inadvertently that turns out to get me in trouble.
That reflects my personal experiences. Almost every single traffic ticket and parking violation I ever received was for something I did by accident or that I didn’t even know I was doing.