What do you do when you are contacted by the police? Are they here to help you? Are they here to investigate you? They can bring you in to chat with you or speak with you on the front porch of your house. But the outcome if you’re under investigation is usually never good. If you’re contacted by police, there is a fine line between being cooperative and giving away all of your defenses or—worse—locking you into a defense that is untenable at trial.
In this Legal DIY Area, we’ll cover the following things and more:
- Fifth Amendment and Miranda Warnings,
- The Right to an Attorney and When to Call One
- Confidentiality and Privacy When Dealing with Police.
Fifth Amendment and Miranda Warnings
5th Amendment & Miranda Warnings – When Miranda Is Required
A lot of people understand Miranda warnings from television shows. Miranda is actually a Supreme court case, People v. Miranda, where the Supreme court said cops have to advise you of your rights when they arrest you. It’s only when they arrest you and before they interrogate you that you’re entitled to this warning, and that part confuses people.
In order for Miranda to apply, you typically have to be physically restrained. It means you have to be under arrest. Cops can come and talk with you under what’s called a “consensual encounter” without having any obligation to Mirandize you. The second issue is that cops don’t have to Mirandize someone if they’re not the ones doing the questioning. So, spontaneous statements by you – not in response to any interrogation by the police – are always admissible, even if you’re not Mirandized. It’s when cops don’t Mirandize you, then question you about what happens when you’re in cuffs that they’re in trouble.
Scope of Miranda
Your fifth amendment privileges are limited. Specifically, you have to be unequivocal in requesting an attorney before one is going to be provided for you. You have to be clear and explicit with the cops that you will say nothing further until an attorney is given to you. You also need to say explicitly, I am asserting my rights such as my right to remain silent. Saying something like I plead the fifth may in some cases be okay, depending on the circumstances. But the key phrase to remember is, “I’m asserting my rights.” It’s very rare that we can get cases thrown out for failure to Mirandize, although that is probably the biggest request that we get.
A few things about the right to remain silent that are critical here is that people should be very careful posting on social media because those things can be recorded and preserved for posterity or evidence against you in court. Also, people should be very concerned and careful about speaking about any active investigation or case with friends or family members. Even people you trust can be considered witnesses against you and the prosecution can eventually subpoena them. You do not have the right of confidentiality with friends or family, unless those people are attorneys and representing you in the case, and Miranda doesn’t apply to them.
The Right to an Attorney and When to Call One
Your right to an attorney can sometimes be considered by cops as obstruction of law enforcement. Merely asserting your right to an attorney generally does not get you in trouble. However, when the cops tell you that you don’t have the right to an attorney and then being adamant or demanding one can jump start legal problems. The common way we see this happening is with our DUI Cases. Cops in Colorado will tell you that you have to take a blood or breath test if you are driving and they suspect you to be under the influence. This is an accurate statement of the law. Unfortunately, people often assume they have the right to consult an attorney about this choice. They do not. It makes it very difficult for us to argue that any sort of DUI refusal was not really a refusal under these circumstances. There is a fine line between asserting your rights and being obstructive.
Obstructing law enforcement is a separate offense. Obstructing law enforcement is defined as if a person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official duties. Obstruction can really impact what happens with your case. Specifically, if you’re not the one that’s actually under investigation and someone else is, and the cops are trying to question you to figure out what’s going on. They may charge you with obstruction for interfering in their investigation of someone else. Trying to assert someone else’s rights to an attorney or a right to remain silent is not usually effective. The right to your attorney usually only applies after you are the one in custody and even then only if the government is interrogating you. In addition to that, your right to an attorney in court only kicks in after you are arrested. You do not have the right to an attorney in a DUI investigation or any on the scene questioning by police in order to ascertain what happened. You also don’t have the right to an attorney if the cops show up at your house and serve you with a search warrant. But that’s not to say that you shouldn’t call an attorney immediately under these circumstances!
There are a lot of things we can tell you to do (or not to do) that are unique to your situation. The Colorado Lawyer Team fields all calls 24 hours a day in order to get an attorney to get back to you as soon as possible in these types of urgent situations.
Confidentiality and Privacy When Dealing with Police
When dealing with the police it’s best to assume that they are recording you. With the passage of badge camera laws, what you tell the cops is very likely going to be the story that we’ll have to tell the jury. In many cases not only do we have badge cameras, but also dash cameras and sometimes even cell phone video or ring doorbell footage. None of these people—police included—have to tell you that they’re recording you.
The monitoring and recording doesn’t stop there, though. If you are under investigation, they can execute search warrants for your house, your car, your, your business, and not even give you an opportunity to respond before executing those warrants. Law enforcement can also get search warrants to do wiretaps on your phones, as well. In recent years, we’ve seen a greater likelihood of being able to get search warrants for cell phone records, social media records, and even Snapchat records in certain cases.
Another major area of concern are jail calls, which can be especially troublesome in cases like violations of protection orders, or other types of restrictions on contact. When in jail, ALL of your communication is being watched. You should act accordingly, as should any visitors or family/friends that you are in contact with. Bond conditions can be violated by contacting someone you’re not supposed to while you’re in custody and jails are very good at decoding encrypted or coded messages. This is even true for three-way calling.
Get Help from an Attorney Today
If you are ever contacted by police, for any reason, you can call the attorneys at Colorado Lawyer Team for help. It is always our advice that you should not talk to the police until after you have talked to an attorney.