As a former prosecutor and now criminal defense attorney practicing in Florida, I offer some insights gained by experience for the patriotic reader.
According to the U.S. Bureau of Justice Statistics, 2,266,800 adults were incarcerated in U.S. federal and state prisons, and county jails at year-end 2010 – about 0.7% of adults in the U.S. resident population. Additionally, 4,933,667 adults at year-end 2009 were on probation or on parole. In total, 7,225,800 adults were under correctional supervision (probation, parole, jail or prison) in 2009 – about 3.1% of adults in the U.S. resident population. With the statist establishment criminalizing everything, and the prosecution machine grinding out prison inmates every day, a dedicated “prepper,” gun-owner or survivalist has much to be wary of when dealing with of law enforcement officers.
Obviously, the first bit of advice is to not violate the law. Unfortunately, there are so many laws on the books that almost everyone is a criminal. For more on this point, see Go Directly to Jail: The Criminalization of Almost Everything by Gene Healy and Three Felonies A Day: How the Feds Target the Innocent by Harvey Silverglate. With the new proposals to ban certain capacity magazines and firearms and to seek a universal gun registration system, many people have become concerned that the law abiding citizen will be labeled a criminal by the state.
We must also recognize that when lawful gun owners discuss the use of force (including lethal force) in defense of self and others, we are not talking about a hypothetical construct. In the event of TEOTWAWKI, this may be an everyday reality. How functional the police and law enforcement agencies are in such an event is unknowable, but planning for such an eventuality can only be smart. It is not hard to imagine a scenario where you defend your home against a home invader using your legally carried firearm, but are faced with the ugly possibility of life in prison. The taking of a human life is no small thing. In Florida, the illegal use of a firearm that results in death carries a minimum mandatory life in prison sentence. Would you plea to a reduced charge for less prison time or take your chances with a jury? Are you sure? The best thing to do is to give your defense attorney the best case you can by planning ahead and understanding how to react to police.
One is reminded of the dilemma faced by the survivors in JWR’s novel Patriots where the protagonists must decide what to do with the bodies and belongings of the armed marauders who have attacked their camp. I would suggest that having a flexible plan to deal with the aftermath of armed citizen conflict should be part of your considerations. Obviously, TEOTWAWKI can come in many varieties with varying levels of societal dysfunction and different responses to such a situation may be called for. This essay presupposes that the police are still actively functioning and that the current U.S. Constitution is still in force.
You must understand that police are state agents. While most of us perceive the police are our friends, neighbors and protectors, it is very easy for this relationship to flip wherein we are the targets of tyrannical state power. Note, for example, the demonization of certain “right wing fringe groups” that believe in such crazy ideas at the founding documents and the right to gun ownership! I am of the belief that the likelihood of Blackhawk helicopters, drones or military strikes against civilians is remote. On the other hand, when TSHTF, the behavior of the local police forces will be one of the critical components as to how things will unfold. All the preps in the world will be of no use if you are sitting in a jail or prison cell. Knowing how to stay out of jail and prison is a critical bit of knowledge for everyone to have. Because the local police forces are the entry point for our prison and jail populations, you should know how the police deal with you.
It is important to understand that there are three levels of police citizen encounters: 1) consensual encounter, 2) investigatory stop and 3) detainer and arrest. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).
The first level, “consensual encounter,” involves only minimal police contact, during which a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. A consensual encounter is not a seizure, so it may occur without repercussion, even when a police officer has no reason to suspect that criminal activity is afoot. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked. Therefore, anything you say in a consensual encounter will be admissible against you. Often, consensual encounters are the basis for many a search. The police officer will ask, “Do you mind if I search your car?” Because it is a question, you have a right to refuse the offer – and you should. An officer may ask you at a highway check point, “would you mind pulling over to the side of the road for a moment?” The response to this is a polite, “I would respectfully decline. I would like to be on my way. Are you ordering me to the side of the road?” If the answer is yes, then understand that you are now adversarial to the police, and are being targeted for arrest. If you are free to leave, then by all means leave.
The second level of police-citizen encounter is an investigatory stop. At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. An investigatory stop requires a factual basis to support it. Unfortunately, this test is subjective and can be falsely created after the fact by an officer. In an investigatory stop police have a right to search for weapons in what is called a Terry search (after Terry v. Ohio, 392 U.S. 1 (1968) if they suspect a person has a weapon. Thus, if you are detained and a police officer asks you if you have “anything on you that he should know about” the correct response is “I have a permit to carry a concealed weapon which is located in my right front pocket.” Note how you say you have a permit first, which reduced the alarm for you being armed. Do not grab for the weapon. Let the officer retrieve the weapon, if he chooses.
The third level of police-citizen encounter is an arrest supported by probable cause that a crime has been or is being committed. A person is arrested or detained. It is only at this point that your ‘right to remain silent’ and ‘right to an attorney’ protections apply. Invoke them immediately. Further, always be polite. There is no reason to get indignant, angry or out of control – those things can only make your life worse when dealing with a police officer.
Back to our earlier example wherein an intruder is justifiably shot, what is it you should say to police? The answer is quite simple: Do not talk to the police. Instead, immediately invoke your right to remain silent and ask for an attorney. There is nothing you can say that will dissuade them from arresting you if that is their intent. There is nothing you can say that cannot also be told to them through your attorney. Having your attorney speak for you allows you to tell your side without the problem of implicating yourself in a crime. Exercise your right and then keep quiet. In many jurisdictions, police are given a 48 hour cooling off period before they are questioned about any police involved shootings. If the police have a waiting period to talk about justifiable shootings, then why not you? Help those who want to help you – and we are not talking about the police! The police are there to put you in jail. Otherwise, why do they want to talk to you? There is no information that you can give them that will persuade them to let you go that cannot also be provided through your defense attorney. If you are under arrest, you are not their “friend.”
I have seen people hang themselves with a statement to police on life felonies for the price of a cop-bought basket of chicken. Thus, do not talk with the police. Sadly, I have also seen many cases where an accused citizen’s comments were misunderstood by the police (either intentionally or accidentally) and used against them. If you find yourself being questioned by the police, politely decline to answer, and tell them you would be happy to answer any questions directed to your attorney. If you are read your Miranda rights, immediately and unequivocally invoke your right to remain silent and ask for an attorney. Then, do not talk about your case! That means, do not talk about it with the friend they bring into the room with you (your conversations are being recorded). Don’t talk about it on the jail phone (also recorded). Don’t talk about it in code (doesn’t work.) Don’t talk about it with fellow inmates (they will turn snitch.) Police love to place you in situations with other people (other than your attorney) that tempt you to talk about your case. The only person you talk to about the case is your attorney.
Another point: don’t be discouraged that an attorney does not magically appear in front of you when you request one. Your attorney only has to be provided to you at arraignment, which can be many days off. Often the police will use this delay to wear out the person being held. People become impatient with the system when after they invoke their right to an attorney they are abandoned in the questioning room for several hours as the police prepare the paperwork to transport them to jail. Time after time, citizens give up their rights and talk to the police to their detriment because the arrestee thinks they can talk their way out of jail. All they end up doing is talking their way into prison!
It is also vital to understand the police use of force continuum. Many police agencies rely on a use of force continuum (also called the use of force matrix) when dealing with citizens. Generally, law enforcement can utilize an amount of force one level above what is presently being exerted against them. Here is an example of the matrix. As you can see from the matrix, if you are only verbally opposing arrest, the police officer may use physical force against you. It is vitally important for the responsible gun owner to know about this matrix. Many people get into big, big trouble when they think they are being wrongfully arrested and argue with the police. The police then respond with an allowable use of physical force, which is then physically resisted by the suspect. In Florida, while it is true that one can resist an illegal arrest without violence, a person cannot in any circumstance resist arrest (even an illegal arrest) with violence. A citizen’s righteous indignation may have been originally justified. But by trying to resolve the dispute with the police on the side of the road, they turn an encounter with the police into a felony charge that lands them in prison. If you are being detained and “think” you know the law and decide to oppose your arrest understand this: whether an arrest is illegal or not will not be determined on the side of the road. Instead, it will be in a courtroom by a judge and prosecutor who are agents of the state. When the police are writing up their report, guess whose side it will take. The worst mistake you can make is to become indignant and physically oppose an arrest. Note that under the matrix, active physical resistance by a person can be met by police with deadly force.
Finally and sadly, you must be aware of the reality and existence of police corruption. While it is true that defense attorneys perceive higher rates of wrongful conviction in the jurisdictions than do judges, prosecutors, and police, the differing opinion of the defense attorneys could be explained by their closer relationship to the defendants. See Ramsey and Frank “Wrongful Conviction” 2007. Judges, prosecutors, and police rarely have contact with a defendant at his most candid, whereas the defense attorney often gains substantial insight into a case through the defendant’s perspective. Often, there are factual disagreements between a defendant’s version of events versus that of a police officer. While it is a defense attorney’s obligation to advocate for their client, defense attorneys also recognize that the other groups almost always side with law enforcement when matters of credibility are at issue. Most defense attorneys understand that the current legal regime provides no protection against unreasonable illegal searches by corrupt police officers and law enforcement officials. This is rarely accounted for by the other three groups, who often work closely together as part of a law enforcement regime.
While actual framing and planting of evidence by law enforcement is possible, most of the corruption does not involve such blatant frame ups. Rather, it takes the form of self-justification, i.e. since we know the defendant is guilty, lying about the circumstances of an arrest is justified since “they are guilty anyway.” Such lying, when accepted and institutionalized as a regular part of the process, effectively eviscerates the individual protections of the Constitution. The individual Rights enshrined in the Constitution only exist if the procedures afforded individual defendants are respected.
Police procedure is where the rubber meets the road in Constitutional law. Fabricated justifications by police destroy Constitutional protections. For example, “Stop and search” has become an increasingly common tactic for normal law enforcement. “NYPD “Stop and Frisks” Hit All-Time High – City police officers stopped and questioned 684,330 people on the street last year.” Feb. 14, 2012 Can it be said that all of these stops were supported by probable cause? What exactly is going on here?
Many laymen would be surprised to learn that since 1996, there is no longer any such thing as a pre-textual stop. The Supreme Court case Whren v. United States, 517 U.S. 806 (1996) effectively removed any defense attorney check on corrupt police officers. The Court ruled, “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren; See also United States v. Holloman, 113 F.3d 192, 194 (11th Cir.1997) (stating that Whren “squarely rejected the pre-textual stop analysis” and that an officer’s “ulterior motives” for a stop are not relevant so long as it is justified by probable cause). This ruling effectively disarmed the defense check on police corruption, thus placing the entire burden for rooting out impermissible behavior on law enforcement themselves and the prosecutors who often serve as a rubberstamping branch of their local law enforcement agencies.
Two common scenarios are commonly subject to this type of corruption: 1) justifying probable cause to stop a vehicle and 2) justifying probable cause to search a vehicle or person. When justifying probable cause to stop a vehicle, there are many un-falsifiable strategies an officer can use to justify a stop, placing his word against that of the defendant. This places the prosecutor and the court in a position of having to doubt the word of a law enforcement agent over that of an accused defendant. Most courts, almost as a rule, side with law enforcement in this circumstance. It is not my intent to argue that anything like a majority of cases are in fact falsified. Rather, it is to explain that there is no external check on police falsifications available to defense attorneys. Therefore, it is currently incumbent on prosecutors, judges and other law enforcement officials to self enforce. Understanding some all too common techniques of petty police corruption (in the Appendix below) should shed some insight into the indices of falsification.
As someone who could be on the receiving end of this, you, the reader, should know that the best way to deal with police officer (whether or not they are operating in a legal manner) is not to argue with them, but to remain silent and ask for an attorney.
Appendix
How petty police corruption often undermines the current constitutional search and seizure framework.
The following are ways a corrupt officer can justify stopping a vehicle based on probable cause. Because the current state of the law does not have a defense check on police power, a police officer who is willing to lie can stop any vehicle based on an after the fact, made up, unverifiable reason. Some examples of the many excuses that can be used to justify stopping a vehicle in Florida are outlined below:
I. “You rolled a stop sign.”
A. (The officer testified unequivocally that defendant failed to stop at the stop sign, while defendant testified unequivocally that he made a full and complete stop. The officer’s testimony was more credible in those areas where it conflicted with defendant’s testimony. As a matter of fact, defendant committed a traffic infraction in violation of Florida law by failing to come to a complete stop at the stop sign. Therefore, the officer’s stop of the vehicle did not violate the Fourth Amendment). United States v. Maddox, 2005 U.S. Dist. LEXIS 34838 (M.D. Fla. Dec. 6, 2005)
B. (Officer stopped a truck for running a stop sign when exiting the complex and received permission to search the truck from the male driver.) Holland v. State, 696 So. 2d 757, 758 (Fla. 1997)
C. (Defendant committed various moving violations-rolling through several stop signs-which prompted the officers to lawfully stop his vehicle. Thus, the officers had probable cause to stop Defendant.) United States v. Jefferson, 2010 U.S. Dist. LEXIS 143674, 6-7 (S.D. Fla. Dec. 19, 2010)
D. (Officer alleged Defendant drove his van past an agricultural inspection station he was required to stop at, justifying stop). Grimes v State, 1982 Fla. App. LEXIS 19563 (Fla. Dist. Ct. App. 1st Dist. Mar. 29, 1982)
II. “Your tail light was out.” (Police officer had probable cause to stop the vehicle for driving after dark without its tail lights illuminated). United States v. St. Louis, 255 Fed. Appx. 432 (11th Cir. Fla. 2007) Note that this allows for the possibility that the individual simply had turned out his lights with the switch, making the fact completely dependant on the officer’s observations.
III. “Your tag light was out.”
A. (Officer can stop a car for an inoperable tag light) See Cole v. State, 838 So. 2d 1205, 1205 (Fla. 2d DCA 2003)
B. (While maintaining that the tag light did not work, the State also argued that the validity of the stop of defendant’s vehicle did not depend on whether the light worked; the State claimed the stop was valid if the deputy had a reasonable suspicion that a traffic infraction had occurred). State v. Lee, 957 So. 2d 76 (Fla. Dist. Ct. App. 5th Dist. 2007) Note that the language of the opinion allows for later testimony that the tag light in fact works – all that is required is that the deputy had a reasonable suspicion that it did not. This inquiry into the officer’s subjective intent is exactly the inquiry that the Supreme Court was trying to avoid in Whren.
IV. “Your window tinting is too dark.” (Officer can stop based on a tint violation), See Lawrence v. State, 942 So. 2d 467, 468 (Fla. 4th DCA 2006); Davis v. State, 788 So. 2d 308, 309 (Fla. 5th DCA 2001).
V. “Your license tag is dirty and I can’t read it.”
A. “… the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.” Fla. Stat. § 316.605 Note that the officer’s opinion of a dirty tag cannot be falsified, since the officer can claim that the tag was subject to post-arrest cleaning.
VI. “Your windshield is cracked.”
A. (Stop is valid when a deputy stopped defendant’s vehicle after he observed a severe crack in the vehicle’s windshield). United States v. Anderson, 367 Fed. Appx. 30 (11th Cir. Fla. 2010)
B. Any police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of the vehicle to stop and submit the vehicle to an inspection and such test with reference thereto as may be appropriate. Fla. Stat. § 316.610(1)
VII. “You crossed the center line.” (Officer testified that he stopped the vehicle because he observed it cross over the center line twice and because the vehicle was impeding traffic by traveling far below the normal speed limit). State v. Thomas, 714 So. 2d 1176 (Fla. Dist. Ct. App. 2d Dist. 1998)
The following are ways a corrupt officer can justify searching a vehicle based on probable cause. Based on the current state of the law, after the vehicle was stopped a police officer can the search any vehicle based on a made up, unverifiable reason. The following are examples of the many excuses can be used to justify searching a stopped vehicle or person in Florida are outlined below.
I. “He acted nervous.” (Defendant became extremely “nervous” and “jittery” during his pre-search interaction with Officer) State v. Betz, 815 So. 2d 627, 633 (Fla. 2002)
II. “He made furtive movements.” What exactly is a “furtive” movement? This term, while hardly ever used in normal conversation, is commonly used by deputies when testifying to justify searches and actions, as a search of the term “furtive movement” in Westlaw easily demonstrates. [See, for example, Lightbourne v. State, 438 So. 2d 380 (Fla. 1983) (Pat down of individual justified when officer observes furtive movements combined with nervous appearance), and over 112 such references.] A Lexis.com search indicates 135 hits in Florida, and 2740 hits nationwide. The relative suspiciousness of a movement, or even its existence, is a matter of opinion of the officer who is subject to prosecutorial and judicial deference even in the face of defense disagreement.
III. Detainee is “Unusually calm” (Defendant was unusually calm, actually lounging on the side of the interstate). State v. Petion, 992 So. 2d 889, 892-893 (Fla. Dist. Ct. App. 2d Dist. 2008)
IV. “He gave consent to search.” (Consent to search after tag light stop includes tearing the vehicle apart for an hour with tools). State v. Petion, 992 So. 2d 889, 893 (Fla. Dist. Ct. App. 2d Dist. 2008) (Consent can be a mere shrug). State v. Jennings, 968 So. 2d 694 (Fla. Dist. Ct. App. 4th Dist. 2007). (The inspector asked to look in the van, and inspector alleged that appellant consented). Grimes v State, 1982 Fla. App. LEXIS 19563 (Fla. Dist. Ct. App. 1st Dist. Mar. 29, 1982) Consent is often a matter of opinion of the officer, who is subject to prosecutorial and judicial deference even in the face of defense disagreement.
V. “I smelled what appeared to be marijuana.” (The odor of burnt cannabis emanating from a vehicle constitutes probable cause to search all occupants of that vehicle) State v. Williams, 967 So. 2d 941 (Fla. Dist. Ct. App. 1st Dist. 2007); Wynn v. State, 14 So. 3d 1094, 1096 (Fla. Dist. Ct. App. 2d Dist. 2009); Nazien v. State, 36 So. 3d 184, 185 (Fla. Dist. Ct. App. 3d Dist. 2010); State v. T.P., 835 So. 2d 1277, 1278 (Fla. 4th DCA 2003); State v. Williams, 739 So. 2d 717 (Fla. Dist. Ct. App. 5th Dist. 1999); State v. Betz, 815 So. 2d 627, 633 (Fla. 2002); (Odor of burnt or burning cannabis detected as the deputy approached defendant provided him with probable cause to search the vehicle). State v. Lee, 957 So. 2d 76 (Fla. Dist. Ct. App. 5th Dist. 2007); (The odor of marijuana gave probable cause to search the bales), Grimes v State, 1982 Fla. App. LEXIS 19563 (Fla. Dist. Ct. App. 1st Dist. Mar. 29, 1982) While the smell of marijuana alone gives an officer a basis to search, it does not appear dependant on actually finding marijuana. Therefore, invisible and transitory smells can be not be independently verified outside of the officer’s word.