Increasingly, I am asked what I should do if and when I am arrested. This is a complicated issue, but let me explain the primary concepts; regardless of whether you are white or a person of color. This article is more detailed than most of my others, so take your time and read it thoroughly. Your freedom might depend on it! In short, KNOW YOUR RIGHTS.

Initial Actions

When stopped by a police officer, keep your hands in plain site; preferably on the steering wheel. Take a deep breath as the cop arrives at the window and be as courteous as you can be. Cops are trained to be friendly on these stops and most are, so provide that respect back. Do not be sarcastic or mean when asked why you were stopped.[1]  If you have a gun or hunting knife in your vehicle, announce clearly when the cop arrives at the window that you have the weapon and in the case of a gun, a valid CCW Permit[2]. Hopefully this is true.

Plan ahead for this and have your ID, proof of insurance, and car registration readily accessible.  If you go to the glove compartment to retrieve these items, move slowly and narrate your actions to the cop as you go so there are no surprises. If you lack of one these documents, explain to the officer why.  If you license is under suspension, hopefully you will have a good reason why you are on the road, e.g., going to hospital due to a family emergency, etc.

The 4^th Amendment

If the officer asks you to exit the vehicle, exit the vehicle. Need be you can attack the constitutionality of this request later. For now, do what is being asked. Case law is clear that government representatives generally have wide ranging rights to inspect or search your vehicle since vehicles can be driven away and hidden. Any part of the vehicle that is not considered a separate and locked compartment can be easily searched.  If you have a separate, locked safe or compartment in the vehicle, the cop must impound the vehicle and get a search warrant based on probable cause to access the locked compartment. You can ALWAYS challenge the constitutionality of the search under the 4^th Amendment of the Constitution, administered to Ohio via the 14^th Amendment. DO NOT try to argue this matter while at your vehicle. It will not end well and chances are the police officer will not be equipped to deal with the legality at that moment anyway, even though they are trained in this area at the Academy (we hope).

Search and Seizure and Terry Stops

If evidence is seized from the vehicle, it is important whether you are arrested or not.  Search and seizure incident to an arrest is easier for the State to defend than an “expedition mission” without an arrest.

As for your person, cops are always allowed to do a Terry Stop[3]. The search must be “reasonable” as legally defined, and limited to safeguarding the police officer/s. Excessive searches can lead to suppression of any weapons or other evidence searched and seized in a latter hearing.

Miranda Warnings

As for questioning, you can be arrested without being “Mirandized”.[4]  However, once you are “in custody”, you must be read your rights BEFORE being questioned.  If not, whatever you say can and should be suppressed and thrown out. Furthermore, any evidence found or produced after an illegal, custodial interrogation (be it at the car, in their car, or at their station)[5] can be challenged as “fruit from the poisonous tree”[6] and suppressed as well.

It is never a bad idea to provide NO answers as to the evidence or alleged offenses while you formally and audibly, yet respectfully, request a lawyer. This is your legal right and does not indicate that you are guilty of anything. An elderly family member once told me “…if I have nothing to hide, why should I not just answer questions right away”. Though innocence is presumed, not all cops are honest and they can openly lie to you to gain insight into a case. Sadly, as a defense attorney, I tell my clients to assume that the cops are not your friends in these specific instances and to SHUT UP until we get involved. Plus, though our Constitution is under attack right now, we must know and defend the Bill of Rights and our protections under the law.

This is but a thumb nail sketch of your rights and our suggestions on your expected behavior.  Be courteous, know your rights, and protect those rights so that your lawyer can provide the most effective representation to you down the road. We will add more detail in future articles. Feel free to contact me directly or chat with my staff on-line at www.bambergerlaw.com.

_{[1] Realize that a cop can stop you for pretty much any reason they choose; speeding, driving erratically, broken light, etc.  Your chances of getting charges thrown out merely on the probable cause for a stop is unlikely.}

_{[2] In Ohio, you can transport a gun in your vehicle without a CCW, but in that case the ammo and gun must be kept in separate parts of the vehicle and not in easy access to the driver.}

_{[3] This right is based on the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), which allows government representatives to search your person reasonably to protect themselves against potential ambush or attack. This is in contrast to such programs as New York City’s Stop and Frisk, which was deemed discriminatory based on racial bias.}

_{[4] Miranda v. Arizona, 384 U.S. 436 (1966) mandated the reading or your rights to remain silent and to legal counsel prior to formal custodian questioning.}

_{[5] The concept of being “in custody” is a complex one, but as a very general rule, if a reasonable person would not feel the ability to simply walk away from the government agent/s, that person should consider him or herself “in custody” and therefore due related constitutional rights under the 5^th and 14^th Amendments. Custody in this context is synonymous with restraint of liberty and does not necessarily mean actual physical imprisonment.}

_{[6] There is an extension of the exclusionary rule established in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). This doctrine holds that evidence gathered with the assistance of illegally obtained information must be excluded from trial. Thus, if an illegal interrogation leads to the discovery of physical evidence, both the interrogation and the physical evidence may be excluded, the interrogation because of the exclusionary rule, and the physical evidence because it is the “fruit” of the illegal interrogation. This doctrine is subject to three of important exceptions. The evidence will not be excluded (1) if it was discovered from a source independent of the illegal activity; (2) its discovery was inevitable; or (3) if there is attenuation between the illegal activity and the discovery of the evidence. Wong Sun v. United States, 371 U.S. 471 (1963) is the seminal case that allowed “poisonous fruit” evidence to be suppressed.}