- Sep 26, 2005
- 1,736
- 0
- 0
Given the numerous police threads I thought it would be pretty cool to at least post this for those who might be curious to know what some of their rights are should they do something that might lead them to be detained by an officer of the law. This is copied from another source, but remember is no way intended to be given as legal advice. You are welcome to check the source of this information with an attorney from your area. This information is strictly for entertainment purposes only, and should not be relied on as legal advice. I have no real experience whatsoever with the criminal ?justice? system and have never worked in the area of criminal law.
What to do when you are arrested (or detained)
"This post was going to be a reply to part of another thread, but then I noticed that I wrote several pages, and I was going off-topic from the original post so I decided to put this in a new thread altogether. It?s a response to what I perceived to be some misperceptions about Texas Criminal Procedure (arrest law, what the cops can do, are required to do, etc).
OK guys, let?s review a bit of Texas Criminal Procedure.
You can be *detained* if the cops have a ?reasonable suspicion? that a person has committed an offense.
You can be arrested if the cops have ?probable cause? to believe that a person has committed an offense.
You can be ?under arrest? without being told that you are under arrest. For example, when the police slap hand-cuffs on you and take you in, this is an example of being legally ?under arrest? regardless of whether the police consider you being under arrest. The courts actually look at a multi-factor test to determine whether or not you are legally under arrest.
The reason that it is important to distinguish whether you are being ?detained for a reasonable period? versus ?under arrest? is that there are different legal rights and consequences that attach at each of these points.
That?s why it can be useful to always ask, ?Am I under arrest, officer?? If the officer says that you are not under arrest, but that you are nevertheless not free to go, then you are being detained. Theoretically, they can only detain you for a ?reasonable amount of time? (which varies under the circumstances ? yeah, I know, not a hard line that you can wrap your hands around). The effect of being in this situation (being detained but not arrested) is a clue that the officer believes that he has ?reasonable suspicion to detain? but not ?probably cause to arrest.? Don?t say anything at this point. Don?t answer any questions (except ID related questions). If he already had ?probably cause,? you would probably be under arrest already. If you do nothing at this point, then, it stands to reason that eventually, they will have to let you go if they don?t come up with anything else.
Now, when you are being detained for questioning (but not yet arrested), there is no requirement that they read you your rights. Anything you say at this point can be used against you.
Further, there is NO requirement that the police read you your rights even when you are arrested. The consequence of them not reading you your rights, however, is that they can not use anything you say against you later in court that was said (1) after you were arrested AND (2) before you were read your rights. It actually gets quite a bit more complicated than this, but this oversimplification will probably suffice for now (e.g. under some circumstances they can still use your words against you even though they didn?t read you your rights depending on the use for which the prosecution offers your words up for). So, usually they will read you your rights so that they have the advantage of using your after-arrest testimony against you. Often, when arresting someone, the police will take the suspect all the way back to the station, and then, at that point, read them their rights there. But, again, the police don?t HAVE to read the suspects their rights ? it?s just that they lose the admissibility of your after-arrest testimony if they don?t.
But, hey all these legal mumbo-jumbo doesn?t really matter. The lesson is absolutely clear. Once the police have stopped you, always be courteous and thank them for their professionalism. Then, politely explain that you don?t understand why you are being questioned/stopped, and (1) that you invoke your right to remain silent, and (2) your right to an attorney.
It?s important that you work in BOTH of those statements: (1) right to remain silent and (2) right to an attorney. The reason it?s important to invoke both is because different legal rights attach to each of those statements.
I often hear, ?The police have to stop questioning you when you invoke your right to an attorney.? That is, however, an oversimplification. They don?t HAVE to stop questioning you at that point ? it?s just that anything you say after invoking that right cannot be used against you for certain purposes. That being said, even after invoking your right to remain silent and your right to an attorney, your testimony can still be used against you for other purposes, such as impeachment (i.e. to show that you are or were lying ? attacking your credibility). Also, that being said, your invocation of your right to an attorney can ?wear off? (e.g. you get put into a holding cell for a few hours, then you bang on the bars, yelling ?I want to confess to everything? ? courts have some legal mumbo jumbo for this sort of situation that makes it not sound so ridiculous).
The police may say all kinds of things at this point after you have invoked your rights, ?Why don?t you want to answer our questions?? ?You don?t have a right to an attorney now.? ?What are you trying to hide??
Nevertheless, your goal is always the same: Limit information. No matter what the question, just simply repeat over and over, ?I invoke my right to remain silent. I invoke my right to an attorney.? If they ask you, ?how many licks does it take to get to the center of a Tootsie Roll Pop?? you simply reply, ?I invoke my right to remain silent, and I invoke my right to an attorney.? Just repeat that over and over and over and over and over. Remember, IF YOU ARE EXPLAINING, YOU ARE LOSING.
And, hey, you?ll never have a problem with your stories ?not matching? if you don?t give a story in the first place.
BTW, I would go ahead and answer any ID related question if the answer can be found on your driver?s license (name, address, id info, DOB, etc). It is an offense to not identify yourself if you are both (1) under arrest and (2) asked to ID yourself by a police officer. See Texas Penal Code 38.02 (http://www.capitol.state.tx.us/statutes/pe.toc.htm). Never give an officer a false name as this act is also an offense. Interestingly, it does not appear to be an offense to refuse to answer the police ID question if you are not under arrest. Determining whether you are ?under arrest,? however, isn?t always obvious thus necessitating that you continually ask, ?Am I under arrest, officer??
Summary: Never give any information besides the stuff on your driver?s license when stopped by the police (I?m not talking about traffic stops for speeding and running the stop sign here guys ? use your own judgment in those situations). Always invoke both your right to remain silent and your right to an attorney. Get a good lawyer if you get in a sticky situation.
Some people say to me, ?That?s not good advice because there are bad cops out there, and if you do all this stuff, invoking your rights, etc., they?ll just lie and make stuff up to get you.? Well, hello! They can do that regardless of whether you help them make their case or not. If they?re gonna lie, they?re gonna lie. Period. There?s no use in helping the cops do there job though.
And yes, I realize that the above standard for ?reasonable suspicion,? is super easy under Texas law for a cop to manufacture (e.g. suspect was sweating, and making furtive eye-movements). That being said, it doesn?t change the result that the best advice to always limit information.
Be careful and be safe out there. Hopefully, all this crap will remain a mere theoretical, academic discussion for most of you, and hopefully, you won?t be in a situation where you will have to consider any of this stuff.
Like the disclaimer posted herein all this meandering is for entertainment purposes only, and should not be relied on as legal advice. I have no real experience whatsoever with the criminal ?justice? system and have never worked in the area of criminal law. Everything here is a gross oversimplification of some aspects of Texas Criminal Procedure. Hey, I just hit a few highlights. I?ve left stuff out, because I can?t cover all the ins-and-outs and everything. And, hey, get a lawyer if you want legal advice. In the end, of course, you have to decide for yourself how to conduct yourself with the police. I simply am offering one perspective on encounters with the guys in blue.
And BTW, it would probably be interesting to hear people?s actual stories with details of getting picked up and taken in (what the police asked, how they acted, etc), so that others could be more prepared as to what to expect if they ever find themselves in such a situation."
What to do when you are arrested (or detained)
"This post was going to be a reply to part of another thread, but then I noticed that I wrote several pages, and I was going off-topic from the original post so I decided to put this in a new thread altogether. It?s a response to what I perceived to be some misperceptions about Texas Criminal Procedure (arrest law, what the cops can do, are required to do, etc).
OK guys, let?s review a bit of Texas Criminal Procedure.
You can be *detained* if the cops have a ?reasonable suspicion? that a person has committed an offense.
You can be arrested if the cops have ?probable cause? to believe that a person has committed an offense.
You can be ?under arrest? without being told that you are under arrest. For example, when the police slap hand-cuffs on you and take you in, this is an example of being legally ?under arrest? regardless of whether the police consider you being under arrest. The courts actually look at a multi-factor test to determine whether or not you are legally under arrest.
The reason that it is important to distinguish whether you are being ?detained for a reasonable period? versus ?under arrest? is that there are different legal rights and consequences that attach at each of these points.
That?s why it can be useful to always ask, ?Am I under arrest, officer?? If the officer says that you are not under arrest, but that you are nevertheless not free to go, then you are being detained. Theoretically, they can only detain you for a ?reasonable amount of time? (which varies under the circumstances ? yeah, I know, not a hard line that you can wrap your hands around). The effect of being in this situation (being detained but not arrested) is a clue that the officer believes that he has ?reasonable suspicion to detain? but not ?probably cause to arrest.? Don?t say anything at this point. Don?t answer any questions (except ID related questions). If he already had ?probably cause,? you would probably be under arrest already. If you do nothing at this point, then, it stands to reason that eventually, they will have to let you go if they don?t come up with anything else.
Now, when you are being detained for questioning (but not yet arrested), there is no requirement that they read you your rights. Anything you say at this point can be used against you.
Further, there is NO requirement that the police read you your rights even when you are arrested. The consequence of them not reading you your rights, however, is that they can not use anything you say against you later in court that was said (1) after you were arrested AND (2) before you were read your rights. It actually gets quite a bit more complicated than this, but this oversimplification will probably suffice for now (e.g. under some circumstances they can still use your words against you even though they didn?t read you your rights depending on the use for which the prosecution offers your words up for). So, usually they will read you your rights so that they have the advantage of using your after-arrest testimony against you. Often, when arresting someone, the police will take the suspect all the way back to the station, and then, at that point, read them their rights there. But, again, the police don?t HAVE to read the suspects their rights ? it?s just that they lose the admissibility of your after-arrest testimony if they don?t.
But, hey all these legal mumbo-jumbo doesn?t really matter. The lesson is absolutely clear. Once the police have stopped you, always be courteous and thank them for their professionalism. Then, politely explain that you don?t understand why you are being questioned/stopped, and (1) that you invoke your right to remain silent, and (2) your right to an attorney.
It?s important that you work in BOTH of those statements: (1) right to remain silent and (2) right to an attorney. The reason it?s important to invoke both is because different legal rights attach to each of those statements.
I often hear, ?The police have to stop questioning you when you invoke your right to an attorney.? That is, however, an oversimplification. They don?t HAVE to stop questioning you at that point ? it?s just that anything you say after invoking that right cannot be used against you for certain purposes. That being said, even after invoking your right to remain silent and your right to an attorney, your testimony can still be used against you for other purposes, such as impeachment (i.e. to show that you are or were lying ? attacking your credibility). Also, that being said, your invocation of your right to an attorney can ?wear off? (e.g. you get put into a holding cell for a few hours, then you bang on the bars, yelling ?I want to confess to everything? ? courts have some legal mumbo jumbo for this sort of situation that makes it not sound so ridiculous).
The police may say all kinds of things at this point after you have invoked your rights, ?Why don?t you want to answer our questions?? ?You don?t have a right to an attorney now.? ?What are you trying to hide??
Nevertheless, your goal is always the same: Limit information. No matter what the question, just simply repeat over and over, ?I invoke my right to remain silent. I invoke my right to an attorney.? If they ask you, ?how many licks does it take to get to the center of a Tootsie Roll Pop?? you simply reply, ?I invoke my right to remain silent, and I invoke my right to an attorney.? Just repeat that over and over and over and over and over. Remember, IF YOU ARE EXPLAINING, YOU ARE LOSING.
And, hey, you?ll never have a problem with your stories ?not matching? if you don?t give a story in the first place.
BTW, I would go ahead and answer any ID related question if the answer can be found on your driver?s license (name, address, id info, DOB, etc). It is an offense to not identify yourself if you are both (1) under arrest and (2) asked to ID yourself by a police officer. See Texas Penal Code 38.02 (http://www.capitol.state.tx.us/statutes/pe.toc.htm). Never give an officer a false name as this act is also an offense. Interestingly, it does not appear to be an offense to refuse to answer the police ID question if you are not under arrest. Determining whether you are ?under arrest,? however, isn?t always obvious thus necessitating that you continually ask, ?Am I under arrest, officer??
Summary: Never give any information besides the stuff on your driver?s license when stopped by the police (I?m not talking about traffic stops for speeding and running the stop sign here guys ? use your own judgment in those situations). Always invoke both your right to remain silent and your right to an attorney. Get a good lawyer if you get in a sticky situation.
Some people say to me, ?That?s not good advice because there are bad cops out there, and if you do all this stuff, invoking your rights, etc., they?ll just lie and make stuff up to get you.? Well, hello! They can do that regardless of whether you help them make their case or not. If they?re gonna lie, they?re gonna lie. Period. There?s no use in helping the cops do there job though.
And yes, I realize that the above standard for ?reasonable suspicion,? is super easy under Texas law for a cop to manufacture (e.g. suspect was sweating, and making furtive eye-movements). That being said, it doesn?t change the result that the best advice to always limit information.
Be careful and be safe out there. Hopefully, all this crap will remain a mere theoretical, academic discussion for most of you, and hopefully, you won?t be in a situation where you will have to consider any of this stuff.
Like the disclaimer posted herein all this meandering is for entertainment purposes only, and should not be relied on as legal advice. I have no real experience whatsoever with the criminal ?justice? system and have never worked in the area of criminal law. Everything here is a gross oversimplification of some aspects of Texas Criminal Procedure. Hey, I just hit a few highlights. I?ve left stuff out, because I can?t cover all the ins-and-outs and everything. And, hey, get a lawyer if you want legal advice. In the end, of course, you have to decide for yourself how to conduct yourself with the police. I simply am offering one perspective on encounters with the guys in blue.
And BTW, it would probably be interesting to hear people?s actual stories with details of getting picked up and taken in (what the police asked, how they acted, etc), so that others could be more prepared as to what to expect if they ever find themselves in such a situation."