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In this Issues & Laws Section, Don Lykkebak provides answers to preliminary questions that frequently arise in many criminal investigations including:
Police contact and search for narcotics, specifically marijuana.
Corporate and business response to pending investigations into white collar crimes.
Because of the unexpected nature of most investigations, this information may well prove to be invaluable in your defense. You may review the following Q & A to see if it presents any issues relevant to your situation. Do not delay seeking professional consultation because you see an answer you think is applicable to your personal circumstance. Call our office immediately and make certain you have an accurate understanding and receive professional guidance.
Q & A
Police contact and search for narcotics, specifically marijuana.
Q: WHEN CONTACTED BY THE POLICE, WHAT ARE YOUR RIGHTS?
A: If you are ever the focus of a criminal investigation, be very wary of speaking to the police. This is the time - before an arrest or a search warrant has been obtained - to first assert your constitutional rights. Never be concerned about what the police think of you. Contrary to what your parents or teachers may have told you when you were a child, the police are not your friends. If they are conducting a criminal investigation they do not mean you well and cannot be trusted to tell you the truth. The law permits them to deceive you about what they know and allows them to trick you. How you handle your first contact with the police will be a factor in avoiding a potential criminal conviction and a prison sentence.
Q: WHAT IS “KNOCK & TALK?”
A: Police have been known to knock on your door in an attempt to engage you in what they refer to as a “consensual encounter.” This is often called “knock and talk.” When the police lack probable cause to make any arrest or obtain a search warrant of your premises, they may hope to trick you into waiving your constitutional rights. They want to search without warrant or for you to speak with them against your best interests. Recent appellate opinions have criticized this practice.
Tell the police that you do not wish to discuss anything with them without first consulting with a lawyer. Be very clear and assert both your right to remain silent and your right to an attorney. “I will not speak to you. I would like a lawyer first.”
If you voluntarily consent to speak with them about their suspicions, you may unknowingly waive your constitutional rights. Always consult a board certified criminal defense attorney before discussing a criminal matter with police.
Q: WHAT DO I DO IF THE POLICE ASK, “MAY I COME IN?”
A: Never let the police enter your home without a search warrant. Tell them they may not enter unless they have a warrant. Evidence obtained from the warrantless search may be used against you because you agreed to the entry. Insisting on a warrant protects you even when you have absolutely nothing to hide. If you consent to a warrantless search you invite them to ransack your dwelling without judicial supervision.
Q: WHAT DO I DO IF THE POLICE JUST WALK INSIDE MY HOME?
A: If the police barge into your home without invitation after you answer the door, immediately tell them, firmly but politely, “You may not come into my home unless you have a warrant. You do not have permission to enter. Leave now.” Do not allow them to intimidate you or put you on the defensive with any lies about “if you cooperate with us it will go much easier on you” or “if you have nothing to hide, why would you object to our looking around?”
Q: WHY IS IT SO IMPORTANT NOT TO SAY ANYTHING TO THE POLICE?
A: Great danger arises from speaking with a police officer (or anyone else not an attorney) about any matter that might be related to a criminal investigation. If you make this mistake then in almost every instance there will be a later problem. The police officer’s version of what you said will be different than what you remember saying. You will be misquoted and that misrepresentation will be unfavorable to you.
It is foolish to believe that the police will correctly represent the circumstances or their dialogue with you during these confrontations. They will not. That is why you must not engage in conversation with them. They have been known to misrepresent what you say and they may tell the Judge that you invited them into your house when you did not. Repeatedly ask them to leave, tell them that they do not have permission to enter without a warrant and that you wish to consult with an attorney.
Q: WHAT DO I DO IF THE POLICE STOP ME WHILE I’M IN AN AUTOMOBILE, TRUCK OR OTHER VEHICLE?
The individual’s right to privacy is not as secure in an automobile on the highway as it is in his own dwelling. The courts more readily find circumstances justifying warrantless search. There are, however, guidelines.
A. When you drive any vehicle, you are obligated to drive one that is fully equipped with all of the required equipment, and you must scrupulously obey the rules of the road or you risk being lawfully stopped by a law enforcement who has occasion to observe you. The following list includes some, but not all of the reasons police can use to pull you over:
1. Both headlights and taillights must be operational.
2. Turn signals must be operational.
3. The tag light must illuminate your license tag.
4. You must not drive a vehicle with window tint that has been applied after manufacture at a level darker than that permitted by law.
5. You must be careful not to drive with your high beams within the city limits or in the face of oncoming traffic or when you approach traffic from the rear.
6. Drive with your seat belt fastened.
7. Children of a young age must be secured in a child car seat.
8. Open containers of alcohol are prohibited.
9. Expired tag.
10. Obviously all moving traffic violations may give rise to a reasonable suspicion permitting a stop and issuance of a citation.
Q: IF I AM STOPPED FOR SPEEDING, WHAT CAN THE POLICE OFFICER DEMAND FROM ME?
A: Once you have been stopped for a traffic infraction, the police officer has the right to issue you a ticket for that infraction. This is a summons and it is not an arrest. Because it is not an arrest he does not automatically have the right to search you or your vehicle.
If you are receiving a ticket for a traffic infraction, the officer may ask for permission to search your vehicle. Do not give permission for such a search without a warrant. If you do so, you may be delayed for hours and your vehicle may be ripped apart in an aggressive search process. Furthermore, if any contraband is located you have waived your constitutional right and made it very difficult for your lawyer to help you.
Q: HOW WILL THE POLICE TRY TO SEARCH MY CAR?
A: After the ticket is written and before it is handed to you, the policeman (affecting a casual manner that is designed to get you off guard) may say: “ Oh by the way, you don’t happen to have any weapons, explosives, drugs, contraband or large amounts of cash in the vehicle, do you?” The driver then responds, “No, sir” at which time the officer quickly replies, “you don’t mind if I have a look, do you?”
BE VERY CAREFUL HOW YOU ANSWER THIS QUESTION! This question is designed to catch the unwary. If you say, “no” meaning that you don’t want him to search it will purposely be misconstrued by the officer who has carefully framed his question so that “no” to him is interpreted as “no, I don’t mind if you have a look.” The question is framed so that a “no” gives permission. Therefore, you are cautioned to state your position clearly and in complete sentences: “No you may not search. You do not have my permission. I do mind and will not consent to a search without a warrant.”
When you tell the officer this, he will have to drop back to Plan B and may not have probable cause to seek a warrant. Resist in engaging in any further conversation with him. Tell him that you do not like the tone and direction of this encounter and that you will not discuss these matters further with him without a lawyer. Ask him if you are under arrest. Tell him you would like your driver’s license and citation so that you may leave unless you are under arrest. Make note of the time because your lawyer will like to know how long you are further detained if the officer does not, in fact, allow you to leave at that point.
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Q: WHAT IF THE POLICE OFFICER WHO STOPPED YOU SAYS HE OR SHE SMELLS MARIJUANA?
A: If you were driving around while smoking marijuana or after having recently smoked marijuana with the odor still on your clothes or if you have made the mistake of having some marijuana in the vehicle with you, your circumstances are now quite different than the normal vehicle stop.
If the officer has reasonable suspicion to make a stop in the first place, approaches your vehicle and smells the odor of marijuana, he is authorized by law to search the vehicle without a warrant. This is a classic mistake which gives rise to many marijuana arrests. In that event, all occupants of the vehicle would be wise to remain silent, make no admissions and ask for an attorney. “I have nothing to say without a lawyer.”
Q: SHOULD I TELL THE POLICE OFFICER THAT THE MARIJUANA IS NOT MINE?
A: Do not say anything about the ownership, knowledge or possession of the contraband. Also, do not volunteer to the police that others in the car, “knew nothing about it.” Just because the police have found it does not mean you are obligated to make any explanations. Keep your mouth shut.
Q: WHAT MUST I SAY OR DO WHEN A POLICE OFFICER STOPS ME WHILE I’M DRIVING OR RIDING IN A CAR?
A: You can expect a certain amount of minor chit-chat in most any traffic stop. Questions may be, “Where are you going? Where are you coming from?” There is no harm in answering a couple of harmless questions as the officer is taking your driver’s license information. There is no requirement, however, to submit to detailed interrogation about your personal affairs. For example, what business you are transacting in Jacksonville, what luggage you are carrying in the trunk, the identity of and address of the people you visited in Jacksonville, what you did while visiting there, etc. The answers to these questions are none of the police officer’s business, and these questions are designed to develop a criminal investigation. Avoid engaging in a conversation, but do not lie. Tell him you do not wish to answer personal questions.
Q: CAN THE POLICE SEARCH MY VEHICLE IF I’M ARRESTED?
A: If you have been pulled over for a traffic infraction or an observed equipment violation and the officer discovers that you are driving under the influence and makes an arrest for DUI, there is a good chance that your vehicle is going to be towed, and it is going to be thoroughly searched. That search would be lawful and does not need a warrant.
The same is true if you have been driving while your driver’s license is suspended. Driving while license suspended is a criminal violation that will result in your immediate arrest. Again, the vehicle will be searched. Arrest after any other criminal traffic violation will lead to search of the vehicle. Examples of criminal traffic violations are reckless driving, leaving the scene of an accident, or fleeing and eluding. These criminal traffic violations will lead to an arrest.
Q: WHAT IS THE DIFFERENCE IF I AM STOPPED FOR SPEEDING?
A: The above offenses differ from moving traffic infractions such as speeding, failure to yield or running a stop sign. Those are civil infractions and do not result in an arrest. Infractions do not provoke a search of your car without other circumstances such as your consent or the odor of marijuana.
Q: WHAT IS THE RANGE OF PENALTIES FOR MARIJUANA CONVICTIONS IN FLORIDA?
A: A detailed break down of mandatory sentencing guidelines in Florida can be found on the NORML website.
In conclusion:
Remember that the criminal justice system does no favors for the defendant against whom it has a lock-solid case. It does not show leniency to the accused who has given a full confession and has waived his right against search without a warrant.
When the prosecutor holds all the cards he is most inclined to demand a full “pound of flesh.” On the other hand, if you have handled yourself wisely and kept your mouth shut and if you have refused to waive warrantless search and seizure of your property, your lawyer may be able to exploit any evidentiary problems and obtain either an acquittal or a much more satisfactory resolution of your problem for you.
Do not make your lawyer fight your battle with one arm behind his back.
The following section provides guidelines for executives, businesses owners and CEOs who become involved in a criminal investigation because of allegations against them or their employees.
WHITE COLLAR CRIMES: Q & A
Corporate and business response to pending investigations into white collar crimes.
Q: WHAT SHOULD I DO IF I, OR ONE OF MY EMPLOYEES, RECEIVES A GRAND JURY OR STATE ATTORNEY SUBPOENA?
A: You may already be aware of the investigation into the operation of your company. If not, this subpoena has put you on notice of the prosecutor’s interest in your business. If you have not already consulted with a Board Certified Criminal Trial Lawyer you must do so now. You should also take responsibility to see that your employee has representation. Your employee is probably quite frightened and does not know what might be expected of him or her. He or she should have independent counsel. Speak to your lawyer about the wisdom of getting an independent lawyer to answer your employee’s questions.
Q. WHAT SHOULD I DO IF I RECEIVE A SUBPOENA FOR BUSINESS RECORDS?
A: A subpoena for business records usually signals the first stage in a criminal investigation of your business. This is the time to seek representation of a Board Certified Criminal Trial Lawyer and obtain guidance in how to properly respond to the subpoena. A subpoena seeking records of a corporation may well obligate the company to produce everything requested. It may also be overbroad and burdensome to the point that your lawyer can file a legal objection to its scope. Do not destroy records in an effort to conceal them from inquiry.
Q. WHAT SHOULD I DO IF AGENTS APPEAR WITH A SEARCH WARRANT AUTHORIZING SEARCH OF MY BUSINESS PREMISES AND SEIZURE OF PROPERTY OR RECORDS?
A: Immediately contact legal counsel if you already have a lawyer and request that he recommend or identify a Board Certified Criminal Trial Lawyer. Provide limited cooperation with the officers and do not interfere with the execution of the warrant. Obstruction would be a separate crime and would have consequences. If possible, your lawyer may find it advisable to come to your business while the agents are still there. His presence may facilitate the process. The agents may desire to remove your computer hard drive as part of the search. You may find it to your advantage to work with them to obtain copies so that minimum stress is caused to your business.
Q: HOW MUCH SHOULD I BE INVOLVED WITH THE AGENTS DURING THE SEARCH?
A: A warrant for search of your business is not an order compelling statements or admissions from you. Keep your mouth shut and do not answer any questions about the operation of the business or any aspects within the focus of the investigation. At first, you may not clearly understand the basis of their investigation. Make no assumptions. Do not explain company protocol, policy or chain of command. Because the agents are executing a warrant on your business premises, and you are not under arrest, they will not feel any compulsion to advise you of your constitutional right to remain silent or to have counsel. Despite the lack of admonition from them, you do still retain these rights and should assert them.
Q: WHAT CAN I EXPECT IN THE EARLY STAGES OF THE INVESTIGATION?
A: Consult with your lawyer regarding the timetable; he can advise you based on the complexity of your case and his previous experience with these same prosecutors. You should focus your energy to carefully select your defense attorney and see that he has all the resources necessary to prepare your defense. White collar cases are normally document intense. The government regularly spends many months preparing the indictment. The trials are often long and tedious. Answering this challenge will become your number one priority. Find a lawyer that will be willing to make your problem his priority also. |
