Legal Questions and Answers

Questions & Answers

Check out flexyourrights.org for more information:

Q: What if the officer says he’ll go easy on me if I cooperate?

A: Unfortunately, many people get fooled by some version of this commonly used police officer’s line: “Everything will be easier if you cooperate.” That might be true sometimes, but when it comes to consenting to searches and answering incriminating questions, it couldn’t be further from the truth.

Q: Aren’t police required to read me my rights?

A: No. The courts have made clear that police officers do not have to tell people that they can refuse to consent to a warrantless search. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid.

Many people believe that an officer must automatically read a person his or her Miranda rights as part of performing an arrest, either immediately before or immediately after an arrest is made. This is also myth.  The truth is that the only time an officer must read a person his or her Miranda rights is when: (1) the person has been taken into custody, and (2) the officer is about to question the person about a crime.

Police officers are often pretty tricky about trying to get someone’s consent to a search. They know that most people feel intimidated by police officers and are predisposed to comply with any request by a police officer. For example, the average motorist stopped by a police officer who asks them, “Would you mind opening the trunk, please?” will probably consent to the officer’s search without realizing that they have every right to deny the officer’s request.

Q: Are police allowed to lie?

A: Yes. Police are generally permitted to lie if it helps them make arrests. The best example of this is when undercover officers claim not to be police. The rules regarding entrapment usually tip in favor of law-enforcement, so police won’t hesitate to trick you into incriminating yourself or others. This is particularly common during interrogations in which officers might tell you that “your friend already gave you up, so you might as well come clean.”

The best defense against these manipulative tactics is to avoid saying anything to police without first speaking with an attorney.

Q: You recommend never lying to police, but what if they ask if I have illegal items and I do? Should I admit to having illegal items? Should I lie?

A: This is a tricky situation. Of course you should never admit to having illegal items, but you should also make every effort to avoid lying to police. You’re always free to remain silent, and police may not hold your silence against you as evidence of wrong-doing.

Nonetheless, this is a rare situation where some experts secretly recommend lying. The main reason to avoid lying is because police are good at detecting it, but in this case that doesn’t matter as much because you’re already a suspect if they ask about contraband.

The most important thing is to be prepared for the inevitable next question: “Do you mind if I search you/your space?”

Always refuse the search, and remember that you can’t get in trouble for asserting your rights.

Q. What should I do if I am the victim of police misconduct?

A: If you feel that your rights have been violated by police, do not panic. There are several steps to the process of combating police misconduct, and you must approach them in a calm and organized manner.

Step 1: Write everything down

This step is extremely important and must be completed as soon as possible following the incident. It’s easy to forget small details over time, and there’s no way to know which facts will make a difference later on.

In your own words describe everything that took place from the very beginning of the police encounter to the end. When quoting yourself or the officer try to use exact words. Be specific about the location, time of day, etc.

Also include witness’s names and contact information and the officers’ names, physical descriptions, and badge numbers. If necessary, be prepared to return to the scene of the incident in search of possible witnesses. Doing so may also help jog your memory about other important details.

Step 2: Consult with an attorney

This step is essential if you were arrested following the incident. It is optional, but recommended, if you were not arrested.

Victims of police misconduct are often vigorously prosecuted in order to gain leverage in case the victim files a lawsuit. If you’re caught in a situation like this, you need a good police misconduct attorney immediately. Police misconduct cases are challenging, and lawyers meet a lot of difficult people, so separate yourself from the pack by being calm and well-organized. The materials you prepared in Step 1 will help demonstrate that you are a competent defendant whose case is worth taking.

If you were not charged with a crime following the incident, you may still wish to pursue a civil suit against the police department. An attorney will help you determine whether you have a strong enough case. Proving police misconduct is extremely difficult, so your attorney will choose whether to proceed based on the strength of the evidence, rather than the severity of the misconduct. Do not become upset if you can’t find an attorney to take your case, simply proceed to Step 3.

Step 3: File a Police Misconduct Report

This step cannot begin until all criminal charges and civil actions have been resolved. Filing a police misconduct report prematurely will hurt your chances in court by revealing too much information to the police. Of course, if you weren’t charged with a crime and you’re not suing, the complaint should be filed right away.

The materials you prepared in Step 1 will form the body of your complaint. You’ll be glad you wrote it down back then, because you might be filing your complaint weeks or months after the incident. Where to file your complaint depends on your jurisdiction, but there’s usually a citizen review board or an office within the police department that accepts them. Entering “police complaint” + “(name of your town or city)” into Google will usually direct you to the correct office. If your town has a civilian review board and an office within the police department that both accept complaints, you should send your report to both offices.

Also take note of whether there’s an official form that you’re required to use. If so, you may have to transfer the information you wrote down in Step 1 onto the correct form. Failing to do so could result in your complaint being rejected arbitrarily. In some areas you might have to call or visit a police office in order to obtain the proper form. When doing so, refrain from discussing the nature of your complaint with any police officer. Police might try to intimidate you by claiming that your particular complaint has no merit. Worse, they may warn the officers involved, which could lead to a cover-up.

Finally, before sending your complaint, be sure to make copies and place them in a secure location. Send your complaint by certified mail so the police cannot deny having received it. You should also send copies to your local ACLU and NAACP chapters.  Don’t forget to call SWOP!

Finally, keep in mind that filing a complaint does not ensure a prompt response from the police department or civilian monitoring agency. Police departments receive many complaints, so your concerns won’t necessarily receive the individual attention they may deserve. Remember that your complaint creates documentation of an incident and could be used in conjunction with other complaints to illustrate a pattern of misconduct. This information is useful to community activists who work to prevent systemic police abuse in your community. Similarly, your complaint could become relevant in the future if the same officer is accused of additional misconduct. In short, your complaint is important even if you don’t get a response.

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