The Top 5 Dumb Things Our Clients Do Before They Call Us
(1) Talk to the police (Part 1)
You have rights. Why are you waiving them???? People died for those!!
I don’t care how quickly the police rattle off the instruction: “You have the right to remain silent anything yousay can be used against you…,” DO NOT waive these rights!
When the police tell you that anything you say or do can be used against you, they mean it. Read these words carefully:
(1) You have the right to remain silent and not make any statement at all and that any statement you make may be used against you at your trial;
(2) Any statement you make may be used as evidence against you in court;
(3) You have the right to have a lawyer present to advise you prior to and during any questioning;
(4) If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning; and
(5) You have the right to terminate the interview at any time.
The above translates into: You have a right to stay silent. You have the right to a lawyer. If you make one peep, we can use that peep to lock you in a cage. And you are knowingly, intelligently, and voluntarily waiving all of those protections because……….I really can’t think of a good reason you would ever do that.
When a police officer reads you these instructions, the best response is always these magic words:
“I want to remain silent. I want to talk to a lawyer.”
Police are trained to repeat themselves to get different answers out of people when they don’t necessarily like the first one. Train yourself to repeat the above phrase. “I want to remain silent. I want to talk to a lawyer.”
The police officer may imply that talking to them will make your life easier. He or she is lying to you. Police are allowed to lie to you. We watch videos all the time of police acting friendly toward a client of ours that they are about to screw over. Our clients do not help themselves by being open and talkative with police. What helps our clients is to keep their mouth firmly shut.
(2) Talk to the police (Part 2)
Often someone will come into our office and say, “But they never read me any Miranda warning!?”
Did the officer have to read you Miranda warnings? Maybe not.
Miranda warnings come from the famous Supreme Court case of Miranda v. Arizona. The Court stated that, in order to use a confession (or statement) that resulted from custodial interrogation as evidence in trial, the police must first read the individual Miranda warnings and obtain a voluntary waiver of the person’s rights.
The key phrase here is custodial (in custody) interrogation (questioning by police).
Did the police call you and ask you to come down to the police station and make a statement? You were not in custody. You went voluntarily. No Miranda warnings are required for the statement to be used against you at trial. (And you don’t have to go down to the police station, and you should not go down to the police station, and you should immediately call a criminal defense lawyer.)
Did the police knock on your door and ask if they could talk to you? You were not in custody. No Miranda warnings required.
Did the police call you and ask you questions? You were not in custody. No Miranda warnings required.
Did you initiate conversation with the police officer after he’d cut off the conversation? You were not interrogated. No Miranda warnings required.
The police don’t have to read you your Miranda warning on lots of occasions. The best idea is to not talk to the police regardless of Miranda warnings.
(3) Consent to a search (of ones’ home, person, purse, vehicle, etc.)
Again, what are you thinking??? I don’t care if the officer says:
- “Well, I can call a drug dog.”
- “Why don’t you let me search and I can get you on your way?”
- “Is there anything in there that I should know about?”
- “Is there anything illegal in the vehicle?”
- “Mind if I take a look?”
The answer is always, “I don’t consent to searches.”
Is it worth giving up your rights to save a few minutes? Call the drug dog! Get a search warrant! Make the police officer go through the steps to legally get into your car or home. You never know what’s in your car or left in your car by someone else. Do you have a valid prescription, but one time you dropped a pill on the floorboard?
There is no good reason to let a cop into your car or home. If you have nothing on you, why are you consenting? If you have something illegal on you, why are you consenting?
The SAPD, Bexar County Sheriff’s Office, DPS, and every other law enforcement agency in this state needs to get through their collective heads that a broken taillight is not cart blanche to perform a vehicle search. They get away with it because we collectively let them.
It’s okay if you don’t know the law. It’s okay if the police officer claims he has probable cause to search. This is something your attorney will deal with later. The point is, don’t hand it all to them by saying, “Yea, you can search my car.” Or “Yes, you can come inside.”
(4) Admitting to carrying illegal drugs or paraphernalia
The cop is not going to go easy on you because you said, “I only have a pipe.”
A pipe to smoke marijuana is NOT legal. You are telling the police officer, “You have probable cause to search my entire vehicle.” You are not telling the police officer, “Hey, I’m a good guy. I just have this pipe. If I admit this, will you please let me go?”
There are occasions when police officers allow people to leave with a warning when all they have is a pipe or a small amount of marijuana, but why are you risking this? Why not let them find it? Why give it up? Telling police that you have ___________ [enter illegal substance here] in your vehicle—no matter how tiny the amount—is equivalent to consenting to the search of your entire vehicle.
Ever heard about the argument that regular people are committing three felonies a day? That we can’t possibly know all of the laws that exist on the books? Well, don’t hand over your vehicle or home to a police officer just to be surprised by what they find.
Don’t do it. Go back to #1 to remember why the police are not your friend.
(5) Hiring a cheap defense attorney
These are the calls we get after the fact. After the plea deal, after the lost trial, after the lost appeal.
Now, we can do appellate work and post-conviction work, but the law is much more in your favor when you’re attacking the allegations against you early. The earlier you can hire competent legal counsel, the better.
We have had people come through the door that were dealing with an investigation for a year or more before ever calling a defense lawyer. Why? What could we have done at the same time to head off the investigation? What may that person have said that incriminated them in their dealings with law enforcement?
The other common refrain we hear is, “My lawyer advised me to take the plea.”
Do you feel comfortable taking a plea deal? Do you want another lawyer to take a look at the case? Do you feel like your lawyer did any real work?
When you plead guilty, most of the time you’re giving up your right to appeal at all.
If you did go to trial and you want to appeal, your trial attorney had to preserve the appellate issue(s). If you hired a cheap lawyer, can you trust they’ll know how to preserve error at trial?
When you file a post-conviction writ of habeas corpus, you are taking long odds that there is an issue that fits within one of the narrow sets of issues that the Court of Criminal Appeals takes up on habeas.
In the end, people trying to take the easy way out find themselves on a much longer and more expensive road to finally freeing themselves.