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What Should I Do If I'm Being Investigated?

WHAT SHOULD I DO IF I AM BEING INVESTIGATED BY THE POLICE -- KNOW AND EXERCISE YOUR RIGHTS

We often deal with clients who have done themselves nothing but harm before arriving in our office. In most cases, these clients either did not know or did not exercise the rights given to them under American law.

As an initial matter, the following advice is not intended to promote having people commit crimes and then avoid punishment. Our real hope, and our most important advice, is that persons should follow the law. Crime really does not pay, so don't get involved in criminal conduct. If you are engaging in criminal activity, stop. If you have addiction problems in your life, seek help. Addictive behaviors often involve criminal conduct or lead to criminal conduct.

That being said, we do not live in a perfect world. Whether or not you have actually committed a crime, if you are being investigated by a government agent, you should know and exercise your rights. Also, if you are innocent and find yourself being interrogated or investigated by law enforcement, then you should not assume that everything is okay and you have no reason to worry. In fact, in that situation it still important that you know -- and use -- your rights.

The most important rights to a person who is the subject of a law enforcement investigation are:

(1) the right to privacy; (2) the right to leave; (3) the right to counsel; and (4) the right to remain silent. We will briefly explain these rights and our views about how you should use these rights.

A. Use Your Right To Privacy By Refusing To Give Permission To Search

The Fourth Amendment to the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The founders' inclusion of this provision in the Bill of Rights is based upon a recognition that persons have a general right to privacy. This right of privacy is greatest where your live.

Search and seizure law is very complicated, and it cannot be covered here in any meaningful way. However, the general principles are fairly basic. Of most importance, there are really two rules that you need to know:

  1. If the police have a search or arrest warrant, you need to comply with the warrant;
  2. If the police do not have a warrant, do not voluntarily give permission to any law officer to complete a search of yourself, your property, your car or your house without first consulting with legal counsel.

The clearest way that the Fourth Amendment allows the government to search a particular place is by getting a warrant. However, to obtain a warrant, an officer of the law must first to a judge and present evidence of "probable cause." The question, for purposes of the issuance of a search warrant is "whether there is 'probable cause' to believe that contraband or evidence is located in a particular place." Illinois v. Gates, 462 U.S. 213, 230 (U.S.). Probable cause exists when "the facts presented in the affidavit would warrant a man of reasonable caution to believe that evidence of a crime will be found at the place to be searched." United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1330 (10th Cir. 2003) (internal quotations omitted). "Probable cause undoubtedly requires a nexus between [the contraband to be seized,] suspected criminal activity and the place to be searched." United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir.1990).

Probable cause to search a person's residence does not arise based upon probable cause that the person has committed a crime. See, e.g., United States v. Edwards, 242 F.3d 928, (10th Cir. 2001) Instead, there must be additional evidence linking the place to be searched to the criminal activity. See United States v. Hendricks, 743 F.2d 653, 655 (9th Cir. 1984). Stated differently, "residential searches [are] upheld only where some information links the criminal activity to the defendant's residence." See also United States v. Lalor, 996 F.2d 1578, 1582-83 (4th Cir.1993).

Likewise, general suggestions that a person has a criminal background or reputation does not give rise to probable cause to search. For example, in Spinelli v. United States, 393 U.S. 410 (1969)(abrogated on other grounds by Illinois v. Gates, 462 U.S. 213 (1983)), one of the allegations made in the affidavit for a search warrant stated that "William Spinelli is known to this affiant and to the federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers." Id., 393 U.S. at 414. The Court disposed of that allegation as "a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate's decision." Id.

Information provided to a judge who issues a warrant also cannot be too old or it is considered to be "stale." Instead, "the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." Sgro v. U.S. 287 U.S. 206, 210-211 (1932). Probable cause for a search warrant "cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched." United States v. Snow, 919 F.2d 1458, 1459 (10th Cir.1990). Knowledge that a particular person has been involved in criminal conduct in the past, standing alone, does not even create reasonable suspicion of criminal conduct. United States v. West, 219 F.3d 1171, 1179 (10th Cir. 2000); see also Sherlock v. State, 632 S.W.2d 604 (Tex. Crim. App. 1982)(an affidavit for a search warrant failed to state when acts occurred which formed the basis for a finding of probable cause, thereby rendering the search warrant illegal and the introduction of the fruits of the illegal search reversible error).

If a law officer comes to you and actually has a search warrant or an arrest warrant, then you should honor the warrant. You do not have the right to say "no" to a valid warrant. However, as these rules demonstrate, it is a fairly complicated matter for an officer of the law to obtain a warrant, particularly a search warrant.

In our experience, most of the searches that lead to persons being charged with crimes are not completed due to a warrant. In many instances, law officers ask for, and are given, permission to search. The law has long recognized that an exception to the requirement for a search warrant is when a person grants consent for a search. Katz v. United States, 389 U.S. 347, 358, 88 S.Ct. at 515; Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972; Davis v. United States, 328 U.S. 593-594, 66 S.Ct. 1256, 1261-1262; Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280. However, the government bears the burden of proving, through clear and positive testimony, that consent for the search was given freely and voluntarily. Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. The Bumper Court, for example, held that a government agent cannot obtain "consent" by falsely telling the occupant of a residence that the officer has a warrant. When a government agent claims a legal right to search, the consent becomes a mere "acquiescence to a claim of lawful authority." Bumper, 391 U.S. at 548-49, 88 S.Ct. at 1791-92.

When a law officer asks for your permission to search your body, your clothes, your vehicle or your house, it means that: (1) he or she does not have a warrant; (2) he or she probably does not have evidence to get a warrant; (3) you have the right to say "no"; and (4) you should exercise that right.

Every day, people are charged with crimes because, for no good reason, they gave a law officer consent to conduct a search that led to evidence of criminal conduct. Some clients have granted consent precisely because they were totally innocent and did not know that incriminating evidence was present. We are also aware of instances in which persons grant consent and then an unscrupulous law officer planted evidence to frame a person of a crime.

The simple rule to follow is this -- do not grant consent to a search. If you are engaged in criminal conduct, or even if you do not know why a law officer wants to search, then you should exercise your right to privacy. If you are not engaged in crime, then no harm is done. If you are engaged in crime, then you have not helped get yourself convicted.

B. If You Are Not Actually Under Arrest, Then Exercise Your Right To Leave.

A law enforcement officer can, based upon mere reasonable suspicion, briefly stop and interrogate a person and possibly even "pat down" the person or parts of his vehicle to make sure that the person is unarmed. In the law, that type of a brief encounter is called a "Terry stop," and is named after a famous Supreme Court case that established the rules for such a stop. Evidence found in a reasonable "Terry stop" can be used in court.

However, a law officer can only lawfully arrest a person if there is probable cause that the person committed a crime. Once a person is "under arrest," then he or she can be held for a longer period of time and is not free to leave.

Law enforcement officers do not necessarily make it clear whether a person is under arrest. For example, a law enforcement officer may know that there is no probable cause, but he may still want to talk to a suspect. He or she may ask a suspect to stay and talk without making it clear that the person can leave.

If you find yourself in a situation where you think you are a potential suspect and you are encouraged to stay with a law officer, or if you simply feel like you are in custody, do not assume that you are under arrest. Instead, ask, "Am I under arrest?" If you are told that you are not under arrest, then leave and contact an attorney.

C. Whether Or Not You Are Under Arrest, Exercise Your Right To Counsel And The Right To Remain Silent

If you are being questioned by the police on the basis that you are a suspect or a potential suspect, you need to immediately invoke your rights to silence and counsel. Here is what you need to say:

  1. "I want an attorney, right now"; and
  2. "I want to invoke my right to remain silent."

At that point, the officer should leave you alone and get you an attorney. If that does not happen, then repeat your requests until you have a chance to talk to an attorney.

Also, the right to privacy and the right not to incriminate yourself extend to physical evidence. The U.S. Constitution gives you the right to refuse to voluntarily submit to tests, such as by giving breath, blood or DNA samples. Once again, the government must first obtain a warrant to coerce you to cooperate with those sorts of tests.

As an aside, we would add that, refusal to cooperate with a breath or blood test when you are suspected of driving under the influence of alcohol or drugs will result in the revocation of your driver's license. However, conviction for DUI also results in the revocation of your driver's license.

Probably the biggest mistake made by persons who are charged with crimes is a failure to exercise these rights by talking to the police without an attorney and giving evidence to law enforcement under circumstances where they had the right to just say "No."

Even if you are totally innocent, talking to the police by yourself could be a horrible idea. Maybe the best course really is to talk to law enforcement. However, you need to make that decision with the advice of your legal counsel.

Do not worry that invoking these rights makes you "look guilty." If you are under arrest, they already think you are guilty -- that is why you are under arrest. If you are really innocent, then your attorney will be able to demonstrate your innocence once he or she sorts out the facts. However, if you are innocent and do not know what is going on, talking to the police could create problems that would not otherwise exist.

And, of course, if you have actually committed a crime, then talking to the police is the worst step you can take. If you tell the truth, you help to convict yourself. Under the law, you have a right not to help convict yourself. If you lie to the police to avoid punishment, then that actually could be committing a crime. We cannot stress this enough -- if you have committed a crime and are being interrogated by the police, it is always in your best interests to remain silent and ask for an attorney.

What you say to law enforcement officers really "can and will be used against you in a court of law." However, the fact that you "remain silent" cannot be used against you in court.

Also, you need to understand that the police can and do engage in trickery and deceit when questioning persons who are in custody who do not have counsel. The safest course is to assume that everything the police tell you is a lie. Just because the police say that they have incriminating evidence or that somebody else has accused you of committing a crime or confessed to committing a crime with you does not mean that it is true. If the police claim that they are trying to help you, that may also be untrue.

Finally, once you invoke your right to remain silent, you need to keep remaining silent. Don't talk to anybody other than your attorney about your case or the charges that have been or may be filed against you. Do not talk to other persons in the jail about your case.

That is true whether you are guilty or whether you are innocent. If you are guilty, then telling other people about your situation creates evidence against you. Also, some of the people who are in jail with you are willing to lie about other inmates to get cooperation from the prosecution on their own cases. Even if you are completely innocent, if you tell one of those persons the nature of the allegations against you, you could give them enough information for them to make up a story that you confessed your guilt. However, if this sort of lying person does not know the nature of the allegations in your case, it becomes more difficult for another inmate to make up such a story. Also, do not talk about your case or the related facts or allegations to anyone on the jail phones -- all calls are recorded.

We hope that this information has been helpful. Once again, these are merely our general opinions. You are not our client merely because you are reading this.

However, if you are a subject of a police investigation, you need an attorney to fight for your rights. Please call our office and ask to speak with an attorney.

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Tulsa, OK 74119
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