Legal information for Escorts and Outcall Performers

SWOP-LV and SCAPA are not lawyers and we do not claim to offer legal advice. Please seek the counsel of a professional licensed lawyer if you need legal advice. We are not responsible for any action taken by you as a result of the information provided here.

Escorting and out call performance is not against the law. Prostitution is against the law (unless you work in a Nevada brothel). But sometimes police set up stings to arrest escorts and outcall performers for prostitution, especially here in Las Vegas. If you are an escort or outcall performer, you will need to know the following in case you have an encounter with a police officer. The following applies nationally as well.


This information is reproduced directly from "Beat The Heat" by Katya Komisaruk and Tim Maloney.


Arrests and Questioning


Using a Lawyer Rights of Non-US Citizens

1) Encounters With Law Enforcement Agents
__i. Conversation
__ii. Detention

_a. What to do if you are detained or arrested
_b. Why You Should Remain Silent and Ask to See a Lawyer
_c. What to Watch Out For When You Remain Silent and Ask to See a Lawyer
_d. Why You Should Remain Silent and Ask to See a Lawyer Even if You Are Innocent

7) Search Warrants 12) The following information is linked to the original site, and will open in a new window.________
_a. Selecting a Lawyer
_b. Working w/a Public Defender
_c. Having a Productive Meeting With Your Lawyer
_d. How Much to Tell Your Lawyer
_e. Sample Witness List pdf
_f. Sample Timeline
_g. Sample Diagram
_h. Maintaining Confidentiality

_i. Representing Yourself
_j. Firing Your Lawyer
_k. Suing Your Lawyer
13) The following information is linked to the original site, and will open in a new window.
_a.Rights of Non-US Citizens
_b. Getting Legal Assistance
_c. Strategies for Non-US Citizens Arrested by Immigration Authorities
_d. Strategies for Non-US Citizens Arrested by Law Enforcement Agencies

_e. Entering and Re-Entering the US
_f. Voluntary Departure, Expedited Removal, Reinstated Removal, and Administrative Removal
_g. Immigration Consequences of Arrest or Conviction
8) Warrantless Searches:
_a. Based on Consent
_b. Other Types
9) Showing Identification
10) Giving Your Name
2) Safety tactics during a police encounter 11) Surveillance:
a. Visual
_b. Telephone
_c. Garbage
_d. Internet
3) The Miranda Rights:
_a. Using the Rights to Remain Silent and to See a Lawyer
_b. How to Invoke the Miranda Rights
_c. When the Miranda Rights Must be Read to a Suspect
_d. Who Must Read the Miranda Rights to a Suspect
_e. How Officers Trick People Into Giving Up Their Miranda Rights
_f. How Officers Trick Suspects Who Have Children
_g. Oral Confessions and Written Confessions
_h. Private Security Staff
(i.e., hotel security guards)
4) What to Sign and What Not to Sign
5) Resisting Interrogation:
_a. Interrogation Lines
_b. Interrogation Techniques
6) Undercover Officers,
Informants, Infiltrators,




Encounters With Law Enforcement Agents

There are three levels of police-initiated encounters.  The second two—which are more serious—require a certain level of proof before the police can undertake them.



Level of Proof






reasonable suspicion



probable cause


When the police are conducting an investigation, but don’t have enough evidence to detain or arrest you, they’ll try to get you to chat with them.  They may call this a “casual encounter” or a “friendly conversation,” etc.  If you cooperate, you’re likely to give them the very facts they need to arrest you. 

If an officer tries to start a conversation with you, find out whether you’re free to go.  If you are, then you should leave immediately, without saying anything else.


Sometimes, an officer will ask you to come to the police station “to answer a few questions.” 1  Don’t do it.  There’s a good chance you’ll leave the station in handcuffs.  Just tell the officer no.  If you’re outside, walk away; if you’re inside, close the door; if you’re on the phone, hang up.  Then contact a criminal defense lawyer right away.

1.  "Will you walk into my parlor?" said the spider to the fly.  The Spider and the Fly, line 1, Howitt, Mary.

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Detention is a short period of custody, often occurring while the police are deciding whether or not to arrest you.  In order to detain you, the police are supposed to have a reasonable suspicion that you’re involved in a crime.  This suspicion must be more than a mere hunch, and the police must be able to put their reasonable suspicion into words.  That’s why it’s sometimes called an “articulable suspicion.” For example, if an officer stops an individual, it would not be enough for the officer to be thinking, “He looked like he was up to something.” The officer’s thoughts would have to be more specific, such as, “He kept looking in the window of the jewelry store, then walking away, then coming back and peering into the store again.  And he wasn’t from the neighborhood.  He seemed nervous and agitated, so I thought he might be planning a burglary.”

Usually, a reasonable suspicion is based on multiple factors, such as: the suspect matches the description of a wanted criminal; the suspect drops an object after seeing the police; the suspect runs away after seeing the police; etc.

Detention is supposed to last only a short time and should not involve changing location, such as going to the local police station.

It may be useful later on, when you’re fighting the case in court, to have asked the officer why you’re being held.  If the officer cannot articulate his suspicion, you may be able to show that your detention was unlawful.  Obviously, this tactic will work better if you have witnesses who will testify that the officer made an inadequate reply.  (Without witnesses, it’s just your word against the police officer’s, if the officer lies about what he said.)


If you do ask why you’re being held, memorize the officer’s response.  Never tell a cop that he doesn’t have reasonable suspicion.  It won’t make the officer let you go, it will only annoy him and remind him to think up a good reason for having detained you, before he writes his report.

During a detention, the police are entitled to pat the outer surface of your clothing, to check for guns, knives or other weapons.  If you’re detained while driving, the officers can look inside the car for weapons (but not in the trunk).  A detention search is conducted only to ensure that the detainee has no weapon.  While detaining you, once the police have patted you down and haven’t felt anything that could be a weapon, they cannot then examine the contents of your pockets.  However, they may try to trick you into “voluntarily” allowing them to search further than they’re entitled during a detention.  The officer will ask you to show him the contents of your pockets, bags, trunk, etc.  The request will usually sound like a casual order, especially when the officer uses a commanding tone of voice:

       •  Let’s see what’s in your bag.

       •  Want to pop open the trunk for me?

       •  How about showing me what you’ve got in your pockets?

Never give permission to law enforcement officers to search.  It’s important to state your refusal clearly (rather than just shaking your head), so that the police can’t misunderstand.

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You can be arrested by an officer or a citizen who sees you commit a crime.  And even if they didn’t see you, the police can arrest you if they have probable cause to believe that you’re involved in a felony (or sometimes a misdemeanor, depending on the type of crime and the jurisdiction).  The facts adding up to probable cause vary, according to the nature of the case.  Say, for example, the police received a call from a store owner that someone matching your description had just spray-painted lots of graffiti all over the front of his store.  The police drive to the area and notice you running down the street, about a block from the store, holding a can of spray paint in your hand.  Under these circumstances, the police would have probable cause to arrest you.  They don’t need an arrest warrant as long as they have enough facts for probable cause.  Probable cause is more than a reasonable suspicion, but less than the level of proof required to convict you at trial (proof beyond a reasonable doubt).

Once you’re under arrest, the police can search your clothes, your body, your bags, your car, etc.  In addition, after arresting you, the police can search your “wingspan,” the area within your immediate control.  Your wingspan could include a whole room, if the room is small enough that you could lunge to any part of it.

A detention frequently turns into an arrest, particularly if you answer the officer’s questions.  Physically resisting the police will almost always turn a detention into an arrest—even gently touching a police officer can result in charges of assault or battery on an officer.  If the police find a weapon or see drugs while detaining you, that’s likely to provide the probable cause necessary to arrest you.  For instance, the police might detain you to see whether you match the description of a particular crime suspect, and then discover an illegal knife while pat-searching you.  Or the police might pull you over when you’re driving and detain you to write a ticket, and then spot an open alcoholic beverage container in your car.  Once you’re under arrest, the police are allowed to search your clothes and body and to go through your bag and/or vehicle.1

1.  If you're arrested in your car, the police are allowed to search the passenger compartment, but not the trunk (unless they impound the car).

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Basic Response to Detention and Arrest

As soon as you perceive that you’re not free to go, say the Magic Words:  I’m going to remain silent.  I would like to see a lawyer.  By invoking your rights at the very outset, you make it much harder for the police to trick you into saying things that can be used against you in court.

Of course, remaining silent is hard to do.  It’s human nature to try to talk your way out of trouble.  Nervousness makes people want to talk, too.  Naturally, the cops are aware of these tendencies and use them to manipulate you into answering questions.  It takes real self-control to exercise your right to remain silent, but it’s the best possible thing you can do for yourself, in terms of criminal defense strategy.

The biggest mistake that people make is waiting for the police to prompt them.  Since the cops’ goal is to get you to provide information, they will carefully avoid giving you a cue that reminds you to be quiet.  So as soon as you confirm that you’re not free to go (by asking or by trying to leave), say the Magic Words:  I’m going to remain silent.  I would like to see a lawyer.

Do not wait for the police to say “You’re under arrest.” They do not always say it and they’re not required to do so.

Do not wait for the police to read you your rights.  They may not bother to do it (and they’re not required to read you your rights unless you’re under arrest and they want to question you).

Remember that the best defense is a good offense.  Say I’m going to remain silent.  I would like to see a lawyer, early and often:  Don’t worry if the police make fun of you for saying the Magic Words before they’ve formally announced that you’re under arrest or before they’ve read you your rights.  This teasing is merely another trick, to make you unsure of yourself.

Training yourself is critical.  It’s hard to have the right moves in an emergency—like an arrest situation—if you haven’t practiced.  Soldiers, during their training, are drilled so that they automatically give only their name, rank and serial number when they’re being interrogated.  You need to develop the same reflexes, because if you’ve been taken into police custody, you’re definitely in enemy hands.  Your job is to give only your name and address, then say the Magic Words and stop talking.  Because in this situation, the police are not on your side.  The officers may just be trying to find a reasonable suspect (if not the actual suspect), or they may dislike your ethnicity or attitude.  Whatever the circumstances, once you’ve become a suspect, the smart thing to do is to say:  I’m going to remain silent.  I would like to see a lawyer.




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Why You Should Remain Silent and Ask to See a Lawyer

Of course, you’ve probably had encounters with the police in which you did explain everything and the police let you go…or at least the consequences (a traffic ticket or a misdemeanor conviction) were no worse than they would have been had you kept silent. And it’s true that in some cases, it doesn’t matter whether you talk to the police or not. However, on those occasions when your luck or skin-color or clothing or income or politics are against you, talking to the police is more likely to result in going to prison, than in going free. And you can’t necessarily tell in advance how much trouble you’re in. You might think you’re being pulled over for making an illegal left turn, when in reality the cops are planning to take you in on felony charges.

Also, even though you may be really clever, you’re at a huge disadvantage in trying to maintain control over the conversation when you’re being questioned by the police. It’s an event that’s relatively rare for most of us, and one in which we’re generally anxious and distracted. By contrast, this situation is extremely familiar to the police. It’s what they’re trained to do, and they get more experience at it every day. So even the least talented cop eventually gets pretty good at questioning people. It’s arrogant to think that you can win at word games with the police, no matter how good a talker you are. The smart money is on saying only the Magic Words: I’m going to remain silent. I would like to see a lawyer. These phrases operate as a verbal condom, adding a critical layer of civil rights protection during interactions with cops.

Many people worry that if they don’t cooperate fully with the police and answer all their questions, the officers will increase the charges against them. This is a mistaken assumption. Higher charges are more likely if you give the police additional information. And in any case, the offenses that the police choose are mere suggestions. It’s the prosecutor who actually decides what crimes to charge against you, based on the information in the police report. So, the less you say, the less material the prosecutor has for thinking up charges. 

People also worry that if they remain silent and ask for a lawyer, the police will be annoyed and will take them to jail for sure, instead of releasing them on promise to appear. And it’s true that refusing to answer questions and asking for a lawyer can be irritating to the police. But there are two reasons to remain silent and ask for a lawyer anyway:


(1)        The police may not have the power to release you. For example, warrants, probation violations, or immigration holds normally require the police to take you to jail. And if you’re arrested for a felony, the police definitely can’t release you. Yet you won’t know while you’re being questioned, whether the police intend to file felony charges or misdemeanor ones. And the police will encourage you to think that you’re only facing a misdemeanor, even if they fully intend to charge a felony. That’s what happened to Justin in Use a Pie, Go to Jail.

(2)        Insisting on your rights may mean that the police choose to keep you in custody, rather than releasing you. But spending a few hours or even a few days in jail (until you can bail out or a get a judge to release you), is better than spending a few years in prison—and that’s more likely to happen if you spoil any chance of fighting your case, by answering police questions without talking to your lawyer first.

It’s harder in the short run to remain silent and ask for a lawyer, especially when the police seem visibly aggravated with you, but it’s much safer in the long run.

People in custody also worry that if they don’t answer all questions posed by the police, the officers will treat them more roughly. But being afraid of the police isn’t a good reason for failing to use your constitutional rights. It’s true that the police sometimes beat people, but it’s rarely because the suspect refuses to answer questions. Police violence is principally the result of racism, politics, and just general aggression on the part of the police officer, along with tolerance for such misconduct on the part of the police department—not the result of the victim’s behavior.  So, if you’re dealing with aggressive police officers, you should still protect yourself by respectfully saying, I’m going to remain silent. I would like to see a lawyer.

Using a humble tone of voice and facial expression, as well as addressing the officer as “sir” or “ma’am,” can be very helpful because police officers tend to be extremely alert to any sign of disrespect (real or imagined). If an officer gets the idea that you’re giving him attitude, he’ll want to teach you a lesson.1  Of course, speaking respectfully doesn’t come naturally for everyone. Some people speak arrogantly out of habit (and may not be aware of how they sound). Others feel that being humble to a police officer simply costs too much in terms of personal pride or political integrity. And some just can’t resist baiting those in authority.2  It’s worth practicing the Magic Words with a friend, or in front of a mirror, so that you develop enough control over your voice and expression to say them properly under stressful circumstances. If you’re going to be provocative toward people with guns and clubs, it should be because you choose to do so, not because you can’t help it.

1.  It's important to remember that just because police misconduct is predictable, that doesn't mean that you deserve it.  Even if you fight or flee, the police are not legally or morally entitled to beat you up.  They're supposed to use only as much force as necessary to restrain you.  And they're not supposed to react to verbal provocation.  See Reporting Police Misconduct.

2.  My friend David Solnit, in custody at the King County Jail in Washington, was asked to sign a form during booking.  All he said was "no," but he said it with so much attitude that six cops promptly piled on him.

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What to Watch Out For, When you Remain Silent and Ask to See a Lawyer

When you’re in custody, once you say I’m going to remain silent. I would like to see a lawyer, the police are not allowed to question you—but you actually have to remain silent. You can’t talk to the police about anything, not the weather or sports or movies. You can’t ask simple questions, like “When do I get my phone call?” 1 Don’t make small talk. Don’t make jokes. Silent really means silent.

The only exception to remaining silent is giving your name and address. You will have to provide that information if you want to be “released on promise to appear” (the promise to appear is a document, usually a ticket, telling you when to come to court—Sample Promises to Appear). Do not give any other information, such as your social security number, the names of family members, employment data, etc. This is important, because one of the most effective police interrogation techniques is to relax the subject by posing safe, normal questions—the kind that come up on countless forms and applications. The cop will seem bored and business-like, just “getting through all the paperwork.” An experienced officer will then move very gradually into questions about the people and incident under investigation, without any pause or change of tone. So don’t let them get you on a roll, obediently answering “safe questions.” Instead, mentally rehearse exactly what information you’re going to give: you’re going to say only your name and address, nothing else. If you don’t set that limit ahead of time, you’ll find yourself answering all sorts of questions, some of which are bound to hurt.

If you’ve been arrested and you break your silence to give your name and address, immediately follow-up by repeating the Magic Words: I’m going to remain silent. I would like to see a lawyer. This restores your constitutional protection, making it illegal for the police to question you further.

There are two common misconceptions when it comes to remaining silent:

Misconception 1: Many people assume that if they say I’m going to remain silent, I would like to see a lawyer or “I take the fifth,” then nothing they say afterward can be used against them. That’s a ghastly mistake. Saying the Magic Words merely keeps the police from questioning you after arrest, and only as long as you stay silent. If you break the silence by saying anything at all—whether it’s a statement or a question—your words can be used against you and you’ll have destroyed the effect of the Magic Words. You’ll have to say them again to be protected from questioning.

Misconception 2: Sometimes people get confused and think that informal conversation is okay, as long they don’t “make a statement” or “give a confession.” That’s dangerously wrong. Anything you say—anything at all—can be used against you, even questions, casual remarks, and jokes. It doesn’t matter whether your words are written down or spoken, or whether you’re in custody or free to go. And your statements can easily be twisted, taken out of context or misquoted. It’s impossible to predict all the things that could go wrong once you start talking. So the only safe course is to remain silent. Here are some examples, based on real cases, of people who talked their way into prison:

Example: Sue and Sally were arrested together in a drug case. At the police station, they were kept in separate holding cells, out of earshot of each other. The detective investigating the case questioned them individually about the crime. Neither of them answered these questions. However, Sue chatted with the detective, just making small talk—she told him where she went for dinner the night before, where she was planning to go for vacation, etc. Later on, the detective went to Sally and fooled her into thinking that Sue snitched on her. Sally wouldn’t have believed the detective, except that he mixed in the trivial information Sue had given him earlier, and those tidbits of truth made his story very convincing. Once Sally was persuaded that Sue had told on her, Sally angrily insisted it was all Sue’s doing. The detective then took Sally’s statements to Sue, who was outraged, and promptly ratted on Sally. So in the end, both suspects were suckered into snitching on each other.2

When law enforcement officers are questioning you, it’s completely legal for them to lie about the evidence and even create false documents in order to fool you into talking! Since you cannot be sure that the officers you’re dealing with are telling the truth, the only safe thing to do is to stay silent. As the saying goes, “a fish won’t get caught if it keeps its mouth shut.” 3

1.  You should be allowed to make a phone call within a few hours of arrest, usually soon after you arrive at the police station or jail.  Normally, you're put in a holding cell that has a telephone in it, though these phones are often rigged so that you can only make collect calls.  The authorities are allowed to listen in on your calls from jail, so you must not talk about the incident for which you were arrested or any other illegal activities in which you might have been involved.  It's best not even to talk about other people, because they might be investigated or questioned.  The importnat thing to communicate is that your friends or relatives should get you a lawyer and/or a bail bondsman.  If you haven't been given access to a telephone, say: "I would like to call a lawyer."  This has the same legal effect as saying, "I would like to see a lawyer," so it doesn't wipe out the protection you get from saying the Magic Words.

2.  For another example of this technique, see Rat Jacket.

3.  Attorneys have been giving this particular piece of advice for hundreds of years.  Back in 1614, an English lawyer named John Hoskyns (who was, at the time, locked up in the Tower of London for being disruptive) wrote to his young son:
                Sweet Benjamin, since thou art young,
                And hast not yet the use of tongue,           
                Make it thy slave, while thou art free;
                Imprison it, lest it do thee.
The Columbia World of Quotations, s.v., "John Hoskyns,"


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Why You Should Remain Silent and Ask to See a Lawyer, Even if You Are Innocent

Remember that you should still say I’m going to remain silent. I would like to see a lawyer, even if you haven’t done anything wrong. Innocent people are wrongfully convicted of crimes all the time. This happens for a variety of reasons, such as:

•     matching the description of a particular crime suspect

•     being too near a crime scene (in the wrong place at the wrong time)

•     hanging out with people who have been engaging in criminal activity, thus appearing to be their accomplice

•     being framed by a lying witness (and sometimes the false witness is a law enforcement officer)

Example: Sam was arrested in connection with a shooting. The arresting officer asked him what happened, and Sam said, “Hey man, it wasn’t me. I was there, but I didn’t shoot anybody. There was this other guy, I don’t know who he was, but he’s the one who did the shooting.” Well, it turns out that the police had also taken a statement from Willie, an eye witness. Willie didn’t get a good look at anyone’s face, but he was certain that there were only two men present—the victim and the shooter. So now Sam had a real problem. He’d admitted to being at the scene of the crime and, of course, that “unknown man who did the shooting” was nowhere to be found. Since Willie testified convincingly there was only one other man beside the victim, the jury concluded that the shooter was Sam—since Sam had already admitted that he was present at the incident.

If the legal system worked perfectly, these mistakes would be corrected in court—but the system is flawed. Judges, jurors, lawyers, law enforcement officers, and probation officers all have limitations stemming from racism, classism, sexism, homophobia, plain stupidity, etc.1 Moreover, in any court case, the parties’ resources play a big part in the outcome. (Here in the United States, you get the best justice money can buy.) And money notwithstanding, even the best criminal defense lawyers can’t always expose a witness who lies really well.2

Don’t make the mistake of thinking that the officer who’s interviewing you is acting as an impartial judge, sorting out who’s naughty and who’s nice. The officer is building a case. That’s his job. And if you answer questions, you’re giving the officer building materials to construct a case against you. Contrary to popular opinion, truth is not your shield—at least not when you’re being questioned and arrested. The time to “explain everything” is when you’ve got your attorney with you, so you can be sure you won’t be misled, misunderstood or misquoted.

1.  See: Suggested Reference Material on Discrimination in the Legal System.

2.  Consider David Harris, who murdered a cop.  Harris, a good liar, got Randall Adams convicted and sentenced to death for this crime.  The case was the subject of a documentary film by detective-director Errol Morris, who played a critical role in Adams ultimate release: The Thin Blue Line, directed by Errol Morris (1988; Anchor Bay Entertainment, 2000).  Unfortunately, for every wrongfully convicted prisoner who is helped by people like Morris or by the network of Innocence Projects, many more unjustly convicted prisoners go unaided.

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Safety Tactics During a Police Encounter

When you have an unexpected encounter with the police or with any other law enforcement agents, you will be safer if you pay attention to your body language.

•           Do not make any sudden movements.

•           Keep your hands in view and open (so it’s clear that you’re not holding anything or making a fist). Do not reach into pockets or bags, unless instructed to do so. If the police ask to see identification, tell them where you keep it before you start to get it out.

•           Never touch the police or their equipment (vehicles, weapons, radios, flashlights, animals, etc.)

•           Breathe deeply, speak slowly, and relax your shoulders and knees. This will reduce the officer’s fear that you may be about to attack or run away. Relaxing under these circumstances is harder than it sounds, because our bodies usually produce adrenalin when we’re confronted by law enforcement agents. Adrenalin makes us breathe, move, and talk more quickly. So you have to concentrate to slow down, because you’re probably going a bit faster than you realize.

•           Make eye contact, to indicate sincerity. However, direct eye contact is sometimes perceived as a challenge, depending on gender, size, race, attire, etc. So maintain a respectful facial expression and speak politely. Again, this is harder than it sounds, because most of us feel angry and/or scared when we’re dealing with law enforcement agents. If you’re perceived as displaying “attitude,” the officer will usually try to humble you—then you’ll get angrier and so will the officer, a vicious cycle. Your best bet is to control your expression and tone of voice from the outset. Addressing the officer as “sir” or “ma’am” is good, too.

•           If you’re in a car and an officer indicates that you are to pull over, park as soon as it’s safe. Keep both hands on the steering wheel, where the officer can see them. Do not reach into your pocket, bag, glove compartment or visor. Even though the officer will want to see your driver’s license and other documents, do not reach for them until the officer asks to see them. When he does tell you to show him your license and papers, say where they are, and confirm that it’s okay for you to get them out. For example, “Sir, my license is in my bag here—is it okay if I open it?” or “Sir, the car registration’s in the glove box—should I get it out now?” Under no circumstances should you get out of the car—this will be perceived as a threat. If the officer is giving you commands over his loudspeaker, that means he’s particularly nervous, so follow the directions carefully and then hold very still.

•           If you’re walking by police officers, it’s best to pass in front, so they don’t think someone’s creeping up behind them. However, do not walk in front of an officer if doing so would interfere with the officer’s access or aim.

For more information on Safety Tactics, please click here

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Using the Rights to Remain Silent and to See a Lawyer

The Miranda Rights

Most of us have watched enough TV to know the Miranda rights1 (also called the Miranda warnings) by heart:

•   You have the right to remain silent.

•   Anything you say may be used against you in a court of law.

•   You have the right to an attorney.

•   If you cannot afford an attorney, one will be provided for you by the court.

These rights are derived from the U.S. Constitution, so the protection they provide is particularly strong because the Constitution is the ultimate law in every jurisdiction in the United States.2

The right to remain silent is also called the “privilege against self-incrimination.” It means that you cannot be forced to say or write anything that might be used to prove you’re guilty of a crime.3

The right to an attorney means that you’re entitled to have a lawyer present to help you during police questioning, line-ups, hearings, etc. Having your lawyer present during interrogation will help you use your right to remain silent.

When the court appoints an attorney for you because you can’t afford one, that lawyer is usually a public defender or panel attorney (see Using a Lawyer)

There is no one-and-only correct wording for the Miranda warnings—small changes are acceptable. For example, one officer might say “Anything you say may be used against you in a court of law,” and another police officer might say, “Anything you say can and will be used against you in a court of law.” Both versions would be considered adequate. However, the officer can’t make a change that alters the basic meaning. For example, it would be legally insufficient if an officer said “If you cannot afford an attorney, one may be appointed for you by the court.” Many police departments instruct their officers to read the Miranda rights off a card, so that they’re less likely to make a mistake.

If you invoke either of these two rights—the right to remain silent or the right to counsel—the police have to stop questioning you. It’s best to invoke these rights together, because that provides both present and future protection from interrogation. 

1.  The Miranda rights got their name from a case decided by the U.S. Supreme Court in 1966, in which Ernest Miranda's conviction for rape and kidnapping was overturned because the police questioned him without adequately informing him of his opportunities to remain silent and to obtain legal advice.  Miranda v. Arizona, 384 U.S. 436 (1966).

2.  Occassionally, you'll read a superficial news story claiming "the Miranda protections have been overturned."  This is because every so often there's a new high court decision that refines or adapts the use and effect of the Miranda warnings.  Since most journalists aren't in a position to explain new legal technicalities, they end up oversimplifying the story - and then their editors compound the problem by adding a hysterical title like, "Miranda Rights Abolished!" (News is a business and sensationalism sells.)  So regardless of what the headlines say, don't panic before checking with a lawyer.  Besides, the Miranda decision only says that, under certain circumstances, the police have to tell you about your constitutional rights.  Even if the Miranda case were overturned, it would just mean that you've got to learn about your rights withour input from the police - which fortunately, you're doing at this very moment.

3.  Voice samples and handwritting samples are exceptions to this rule.

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How to Invoke the Miranda Rights

The surest way to invoke your rights is to say the Magic Words: I’m going to remain silent. I would like to see a lawyer. These two sentences completely invoke your Miranda rights. The reason for memorizing this particular formula is that it’s easy to make mistakes.

For example, some people say, “I take the Fifth.” That’s good, but it doesn’t remind you of what you’re supposed to be doing: remaining silent and waiting for your lawyer. If you say, “I take the Fifth” and then keep on talking, you cancel the effect. Not only will the police be able to go on speaking to you, but everything you say to them will be used against you in court.

Another error is being too hesitant, as in “I think maybe I’d like to remain silent,” or “Do you think I should talk to a lawyer?” Usually, people do this because they’re nervous and they don’t want to seem impolite. But the police immediately take advantage of this sort of shyness to talk the suspect into answering questions. Justin made this mistake in Use a Pie, Go to Jail.

Finally, some folks give in to the temptation to get fancy, saying things like, “I hereby respectfully invoke my constitutionally-protected rights not to be forced to incriminate myself and to have adequate access to counsel, etc.” Such long-winded versions are silly for two reasons. First, you’re likely to contradict yourself or leave out something important. Second, it makes you sound stuffy, which annoys the police. It’s best to keep it simple: I’m going to remain silent. I would like to see a lawyer. This gets the job done, legally speaking, and keeps you from getting the wording wrong or sounding like a wanna-be lawyer.

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When the Miranda Rights Must be Read to a Suspect

Just because the arresting officer didn’t read you your rights doesn’t mean you can beat your case. Law enforcement agents are only required to read you your rights if both:

            (1)        you’re under arrest, and

            (2)        they want to ask you questions

So if the officers haven’t arrested you yet, they can ask you questions without reading you your rights, and your statements will still be used against you in court. For example, during a conversation or a detention. the police don’t have to read you your rights. As you can guess, a smart cop may try to get all his questions answered before officially arresting the suspect.

Sometimes, officers don’t bother to read the Miranda rights, because they don’t really need to question the suspect. There may be good eye witnesses or surveillance tapes. Or the suspect may just be babbling, as Kaitlin did in Five Finger Discount. After all, why would an officer interrupt with questions if the suspect keeps on making stupid statements without any prompting?

The moral of the story is, don’t wait for the police to read you your rights. They may not do it at all, or they may at least wait until you’ve already made lots of damaging statements.

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Who Must Read the Miranda Rights to a Suspect

Both state and federal law enforcement agents have to read you your rights before they can question you in custody. This includes:

  • Police and highway patrol officers

  • Sheriffs and U.S. marshals

  • FBI, DEA, ATF, and other federal agents

  • Park rangers

  • Probation and parole officers

The only people likely to have you in custody who don’t have to say the Miranda warnings are private security staff (security guards, rent-a-cops). These security guards sometimes have fancy uniforms and badges, and carry guns, so it’s not always easy to tell them from real police.

You should always invoke your rights, whether or not you’re dealing with a real law enforcement agent. It won’t hurt you if you say the Magic Words to a private security guard. The worst that can happen is that he’ll make fun of you. And you’ll at least have reminded yourself of your own best strategy, by saying: I’m going to remain silent. I would like to see a lawyer.

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How Officers Trick People Into Giving Up Their Miranda Rights

In 1966, when the U.S. Supreme Court ruled that officers must recite the Miranda warnings before questioning arrestees, police across the country were outraged. They were sure that suspects would never again confess or even make a few incriminating statements. However, a year or two later, the police had stopped fussing. They discovered that giving the Miranda warnings had very little impact on suspects’ behavior. Instead of remaining silent or asking for a lawyer, most suspects whom the police arrested went right ahead and answered questions, completely ignoring the warnings.

Now, decades later, the public seems to feel that the Miranda warnings are just part of the arrest ritual, the stage that comes between being handcuffed and being put into the back of the squad car. After all, most officers read the rights in a bored monotone, without any emphasis. So an arrested person is likely to think that the Miranda warnings aren’t very important (though this is actually the last best chance you have to help yourself). Some officers even refrain from saying, “Do you understand?” at the end, because they don’t want people to stop and think. Immediately after reading the warnings, an experienced cop will start asking easy questions about age, marital status, employment, etc. Once suspects have been obediently answering a long string of these questions, they will find it very uncomfortable to stop in the middle, even though the inquiry has shifted from personal background information to pointed questions about the crime under investigation.

When a suspect doesn’t immediately start babbling, law enforcement agents have very effective tricks for getting people to start talking. The following are common arguments the police use when they’re trying to convince you to answer questions. Notice the false assumption in each one:

What’s your problem? We’re just trying to clarify what’s happened here. And since you say you haven’t done anything wrong, what’ve you got to be afraid of?

False assumption: If you don’t answer questions, you must be hiding evidence of guilt.

True: The constitutional right to remain silent would be useless, if exercising it branded you as guilty. That’s why, if you invoke your right to remain silent, the police and prosecutor are forbidden to use it against you in court. In fact, during trial, if a prosecutor even implies that you’ve remained silent out of guilt, your defense attorney can object and call for a mistrial!

When we’re done here, I’m going back to the station and write my report. That’s what the DA’s going to use to decide who to prosecute and for what charges. Right now, all I have for my report is how the other guy said it happened. Of course, you don’t have to talk to me, but as far as my report’s concerned, this is your last chance to tell your side of the story.

False assumption: If you don’t tell your side of the story to the police, you’ll lose your chance to talk your way out of being prosecuted.

True: You cannot assume that police officers are neutral, listening to both sides and deciding who’s at fault. It’s their job to collect potential evidence against people. Prosecutors aren’t neutral parties, either. It’s their job to prove people guilty. So if you’re a suspect and you tell your side of the story to the police and the prosecutor—who, by definition, are not on your side—you will be hurting yourself. The right person in whom to confide is your own defense lawyer. Your lawyer will then help you tell your story to the judge and/or jury, who are the only people whose job it is to listen impartially to you.

Look, you’re busted. There’s no way you’re getting out of this. The best thing you can do for yourself at this point is tell the truth. If you take responsibility now, it’ll look a lot better when you get to court.

False assumption: The prosecutor and judge will respect you if you confess immediately upon being arrested.

True: Prosecutors will think you’re pretty stupid if you confess to the police, but they’ll be happy because it’ll be much easier to win the case against you. Judges don’t particularly care whether you confess to the police or not, as long as you accept a plea bargain before the case has to go to trial. From a strategic standpoint, admitting guilt is only valuable if you hold it in reserve, so that your lawyer can use it as leverage to cut a deal for you. Confessing before negotiating is like going to buy something you really want, putting all your money on the table and asking, “How much does this cost?”

Above all, do not ask for or accept advice from the officers who have stopped you. They are not there to act as your advocate or judge. Remember that they’ve been trained to put you at ease, to get you to trust them. Their job is to find, arrest and help convict the suspect. And that suspect is you.

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How Officers Trick Suspects Who Have Children

Police often manipulate suspects who have children into confessing or consenting to searches. The soft approach goes like this:

Hey, I see you’re alone here with your kids, and I don’t want to make this any harder on you than necessary. I tell you what, if you’ll sign this form and answer a few questions, we’ll let you make some phone calls right now, to find someone who can come pick up the kids.

The hard approach sounds like:

You know, I could put in a call to Child Protective Services and have a social worker out here within the hour. Do you know how hard it is to get your kids back, once the county takes custody of them?

This is a really tough situation, but it’s critical to say the Magic Words, I’m going to remain silent. I would like to see a lawyer, no matter how frightened and upset you feel. In the short term, if you refuse to cooperate with the police, they may take your children for a little while—but in the long term, you stand a much better chance of beating the criminal charges and coming home. When you answer questions or consent to searches, you sabotage your chances of winning your case or negotiating a favorable plea bargain—which may result in your going to jail or prison, where you won’t be available to your children for a long time.

Remember that as long as there are relatives or a designated guardian who can take custody of your children, the authorities aren’t going to put your kids in foster care. The county has no interest in spending resources on caring for anyone’s children, if it doesn’t have to—and the authorities will be more than happy to turn them over to an appropriate guardian as soon as possible. You can shorten the amount of time your children have to wait to be rescued, if you designate a guardian in advance.1  To appoint a guardian, it’s best to check with a lawyer or law clinic—the procedure varies from jurisdiction to jurisdiction, and you don’t want your child’s guardian to have to struggle to prove that she’s properly authorized. If your children are old enough to understand, have them memorize their guardian’s name and telephone number. While waiting to complete the arrangements to designate a legal guardian, you should prepare a letter giving certain adults permission to take care of your child in the event of an emergency. Such a letter is not a substitute for setting up a true guardianship, but it may convince the authorities to let the adults you’ve specified take temporary custody of your child. Sign and date the letter, and leave copies with your child’s school, your child’s doctor, and each of the adults named in the letter. 

1.  It's wise to designate a guardian for your child even if you never expect to get in any trouble with the law, in case you're caught in an accident or other disaster.

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Oral Confessions and Written Confessions

Some silly people persist in imagining that it doesn’t matter what they say to the police, as long as they don’t sign anything. Yet the Miranda warnings specifically state, “anything you say can and will be used against you in a court of law.” So this shouldn’t be a mystery. However, just to be crystal clear, what you say to cops can be just as harmful as what you write or sign for them.

Here’s how the police gather incriminating statements during a typical arrest:

  1. At the scene of the arrest, the officer reads the Miranda warnings and the suspect fails to invoke his rights. Then the suspect answers the officer’s questions. The officer takes notes and later quotes the suspect (accurately or not1) in the narrative part of the police report.

  2. At the arrest location or at the police station, the suspect is invited to tell his side of the story, in a written statement (see Sample Statements). Sometimes the suspect himself is asked to write the statement, but usually the suspect talks while the officer does the writing. Officers generally edit as they write: leaving some things out, suggesting particular words, or just inserting their own words. Then the suspect is told to sign the statement. Usually the suspect doesn’t bother to read it over, let alone make any corrections; or perhaps the suspect is too frightened or upset to disagree with whatever the officer wrote.

  3. At the police station, if it’s a serious case, officers will question the suspect again. This interview will normally be audio taped, though sometimes the police use videotape. The officer may also seek a longer, more detailed written statement from the suspect.

Naturally, statements on paper or on tape make it harder to defend the case than oral statements. Yet even brief oral statements can be impossible to deny or explain.

1.  Once of my teenage clients was busted on the street and the cops dragged him over to a wall covered with graffiti.  The officer demanded, "Did you write that?"  My client carefully replied, "No, I did not."  In his police report, the officer wrote: "I asked suspect, 'Did you write this graffiti"' and he responded, 'Yes.'" In court, it was the officer's word against my client's - and we were in juvenile court, so there was only a judge and no jury.  Bummer.


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Private Security Staff

Private security guards, “loss prevention agents,” and “asset protection agents,” are making a citizen’s arrest when they bust you, since they aren’t really police. They typically keep you in custody and call the police to come pick you up. They’re allowed to restrain you physically, while they wait for the police to arrive. They can grab you, handcuff you, lock you in a room, etc. Like police, security staff are not supposed to use more force than is necessary to ensure that you don’t escape.

Naturally, private security staff are not required to read you your rights, since they’re not really police. However, anything you say to private security can and will be used against you in a court of law. Some businesses instruct their security staff to note, in particular, the “subject’s first words at time of detention” (because such statements won’t have been well thought out). But all statements, from first to last, made to private security staff are dangerous and likely to be quoted or misquoted in their reports. And it’s so very tempting to try to explain everything to the security staff. After all, once in a while this works. Some people have been caught engaging in some minor crime, and then talked and cried their way out of trouble. Obviously, this is more effective while you’re still young and cute; and it may work better for girls than for boys.1 Unfortunately, on the occasions it doesn’t work, you’ll have sabotaged any hope of a legal defense, because what you’ve said will certainly be used against you court. That’s what happened to Kaitlin in the Five Finger Discount. Not surprisingly, for those who take this gamble, the odds always seem better than they really are. Both cops and casinos win big, betting on the gambler’s optimism.

In addition to getting you to make damaging remarks, security staff may also persuade you to give a statement in writing or sign a statement they’ve prepared for you (see Merchant Confession Forms).

Most businesses with professional security staff also have clear policies about when and whom to arrest. For example, a store may have rules such as: the security staff must not arrest a suspect unless the agent has had an uninterrupted view of her; or juveniles and first-time shoplifters are let go with a warning. But most businesses that employ security staff have a policy of arresting every valid suspect. And if the suspect runs or fights, or doesn’t have i.d., the security staff is virtually certain to arrest him. Security guards nearly always follow the store’s policy in deciding whom to arrest—it’s just not worth it to the guard to risk getting reprimanded or fired for taking pity on a suspect. Besides, after a few weeks on the job, security staff find that they’ve heard all the excuses over and over. So when suspects talk to security staff, they only make things worse for themselves.

In a case involving theft, it doesn’t matter whether or not the suspect leaves the premises. Once you’ve picked up someone else’s property and taken it to keep, without being entitled to it, that’s larceny. Usually, store security staff wait for shoplifters to leave before they grab them, so the suspects can’t claim that they were intending to pay for the goods before exiting. But security staff may also arrest shoplifting suspects before they’ve left the store, since concealing the merchandise indicates that there was no intent to pay.

1.  One drawback to the winsome approach is that occassionally a corrupt security guard or cop will demand sexual services for letting you go, which many people find distasteful.



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What to Sign and What Not to Sign

DO Sign a Promise to Appear

When you’ve been arrested, you’re likely to be given all sorts of forms to sign. But there’s only one kind of document that you can be sure is safe to sign: a “promise to appear”.  (see Sample Promises to Appear). Anything else is probably a trap.

When law enforcement agents are asking you to sign something, the rule to remember is: don’t sign anything other than a promise to appear, without consulting your lawyer. But as further protection, you might as well be familiar with the principal documents used to trick people:

  • waiver of rights

  • statement

  • property receipt

  • merchant confession form

These are each discussed in detail below, and you’ll have no trouble recognizing them, once you’ve taken a good look at the samples. However, whether or not you can tell precisely what the officers are trying to get you to sign, you know it can’t be any good for you unless it’s a promise to appear. On the bright side, there’s no need to make a decision in haste. If you’ve just been arrested and the officers are pressuring you to sign something, ask to telephone your lawyer to check whether you should sign. Of course, the officers are likely to claim that they don’t allow phone calls until they’ve finished all their booking procedures—but don’t just give up. Many people, upon being arrested, have persuaded the officers at the station to let them telephone their lawyers in the middle of booking. Some just politely asked to call their lawyer (“May I please telephone my lawyer?”) and were allowed to do so. Some had to make the request over and over. And some had to refuse to provide even the most basic information—such as name and address—until the officers let them use the telephone.1

If you don’t have a lawyer yet, try the public defender’s office or a criminal defense lawyer from the yellow pages. Keep your question short and focused:

“Hi, I’ve just been arrested and the police are telling me to sign a paper that says: ____________. Should I sign it?”

When you call a lawyer while you’re in custody, the lawyer will doubtless remind you to invoke your rights. She will appreciate hearing that you’ve already told the police, I’m going to remain silent. I would like to see a lawyer.

Once you’ve consulted with an attorney and carried out his or her advice about what to sign and what information to provide, re-protect yourself from questioning by saying the Magic Words again. After that, make sure you don’t say anything else to the officers, because if you break the silence, you will have waived your rights

A promise to appear is a document you sign when you’re being released from custody, guaranteeing that you’ll come to court. It normally specifies the courthouse, date, and time at which you’re to appear. The promise to appear may be issued by the police, if you’re being released at the scene of the arrest or at the police station. Or, if you were kept in custody, you may be issued one at the courthouse or jail, as part of the process of release on bail or release on your own recognizance. In some places the promise to appear is called a “citation,” and when you get one you’re “released on citation” or “cited out.” In other places, it’s called a “summons” or a “ticket.” (For more information on procedures for release, see Jail and Bail). Promises to appear come in various shapes and colors. Sometime they’re printed on full-size paper (81/2” x 11”); but they can also be smaller, like traffic tickets.2

In some jurisdictions, a promise to appear will clearly indicate that it’s not an admission of guilt. For example, citations in California have the following phrases above the signature line: “Without admitting guilt, I promise to appear….” However, in most locations, promises to appear don’t have such a useful signal to let you know they’re safe to sign. So you have to read carefully, to make sure that the document is nothing but a promise to come to court.

Note that if you fail to appear when you promised, the judge will likely issue a warrant for your arrest (a “bench warrant”).

1.  Quite a few of my clients have succeeded in calling me during booking, both in state custody and in federal custody.  One young man called while being booked by the immigration authorities at the border (he sat down and refused to move until they let him use the phone).  Another client, Rahula Janowski, got the police to let her call from the hospital, where she had been taken because of injuries sustained during her arrest.  (The police were trying to question her while she waited to be treated for a broken collarbone.  She made sure to invoke her rights and call for legal advice before accepting pain medication that would cloud her thinking.)

2.  Actually a traffic ticket is a notice to appear, except you may be given the option of paying a fine instead of coming to court (unless you want to fight the ticket).

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Don't Sign a Waiver of Rights

Waiving your rights means giving them up—nearly always a mistake. In an encounter with law enforcement, the officers want you to waive your Miranda rights: the right to remain silent and the right to have a lawyer present to help you when you’re being questioned. If you answer questions after law enforcement officers have recited the Miranda warnings to you, you’ve implicitly waived your rights. Even if you say the Magic Words, I’m going to remain silent. I would like to see a lawyer, but then fail to remain silent, you’ve waived your rights.

Although you waive your rights simply by talking, you can always make matters worse by signing a waiver of rights form. Prosecutors like it when the police persuade suspects to waive their rights in writing, because that makes it so hard for criminal defense attorneys to argue successfully that their clients were tricked or forced into making damaging statements. (The forms always say that the suspect understands his rights and knowingly gives them up.) See Sample Waivers of Rights.

To get you to fall into this trap, most police departments present you with a waiver form at arrest or during booking. The officer generally pretends that it’s just a formality. The waiver may be a separate document, or it may be included in a form for taking your statement.  See Sample Statements.  Here are some lies the officer may tell, to get you to sign the waiver of rights:

  • Sign here. This confirms that we read you your rights.

  • This is just an acknowledgment that you understand your rights.

  • We’re not legally allowed to write down your side of the story unless you sign this first.

  • Look, this is just part of the booking process. Everybody has to sign this form.

  • You’re not going anywhere until you do sign it. You wanna sit here all night? That’s fine with me.

If an officer gives you a waiver of rights form, don’t sign it. And don’t try altering the form, by crossing words out or writing on it. Just give it back to the officer and say: I’m going to remain silent. I would like to see a lawyer.

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Don't Sign a Statement

Law enforcement agents start by trying to trick you into making an oral statement, that is, talking about what happened. If you do make the mistake of speaking to the police, the officer will then want to get your statement in writing.1 Typically the officer will write down the statement and try to get you to sign it, although sometimes the officer will ask you to write it yourself. If you sign a written statement, regardless of who wrote it, you’ll have produced potential evidence that’s likely to be extremely damaging.

Most police departments have a specific form for statements, that’s part of the complete police report. Many statement forms include a waiver of rights section (giving the Miranda warnings), but some don’t.

The officer may ask for a written statement at the scene of the arrest, or at the police station, or both. Just say no. Don’t write anything at all on the form. And don’t sign it.

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Don't Sign a Property Receipt

When you’re arrested or searched, you’re normally given a property receipt listing the items taken away from you. See Sample Property Receipts. The reason you shouldn’t sign a property receipt is that it’s an admission that you knowingly possess whatever’s on that list—and there may be things on the list that can be used against you in court. For example:

  • drugs or drug paraphernalia 

  • weapons

  • large amounts of cash (indicative of illegal business dealings)

  • stolen property

  • burglary tools (such as a screwdriver)

  • vandalism equipment (spray paint or even just a marker)

  • address book or other documents with the names of people who may be involved in criminal activities

  • keys or documents (such as mail addressed to you) that prove you have ties to a place where criminal activity occurred

  • computer or electronic storage media (containing files with incriminating statements or contact information)

Even if you believe that your pockets, bags, backpack and car don’t contain anything damaging, you still shouldn’t sign a property receipt. Just as it’s hard to predict how your words might be used against you, it’s equally hard to predict how your possessions might be used to prove guilt. Also, you may have something in your property that you’ve forgotten about (like the end of a joint in the very bottom of your backpack). And finally, someone else may have put an incriminating item in your bag or car—another suspect (trying to get rid of it) or a corrupt officer (trying to frame you).1

The officer trying to get you to sign the property receipt may tell the following lies:

  • If you don’t sign it, you won’t ever get your stuff back.

  • If you don’t sign it, you won’t be released.

  • Don’t worry, it’s just part of the procedures here—it doesn’t mean anything.

The police don’t need your signature to keep track of the items taken from you—they’ll all be labeled with your name and the police report number.2  And your lawyer can always file a “motion for return of property” to get your things back—that’s part of a lawyer’s job—you just have to ask. Bear in mind that some items may not be released until the case is concluded, because the prosecutor will claim he needs them for evidence. And some of your property may never be returned anyway. Your belongings can be confiscated if they’re used during a crime (like burglary tools) or if they’re contraband (like illegal drugs or weapons).3  Similarly, your money can be seized if the prosecutor claims it was illegally obtained (like drug money). The main thing is to talk to your lawyer, before signing anything that has to do with property. 

1.  A client of mine was arrested one afternoon and taken to the station.  Following the arrest, police officers picked up two abandoned guns that were near the scene of the incident, but not in my client's possession.  Many hours later, in the middle of the night, my client was being released from jail.  The police told him to sign a variety of forms, including a property receipt.  At the bottom of the list of items were the two guns.  My client said, "These aren't my guns."  The officer replied, "Oh don't worry, it doesn't mean anything.  We just had to list them somewhere. Besides you have to sign this if you ever want to get your stuff back.  And anyhow, you won't get released tonight if you don't complete all the paperwork."  Now, my client had been wearing some very nice gold jewelry that he didn't want to lose.  And he was extremely tired.  So he signed the property receipt.  Needless to say, it became a real problem in defending the case.  There was very little chance of finding the officer who'd lied to him (we didn't know his name or badge number).  And even if we could find the officer, it would be hard to prove in court that he told those lies, since we had no witnesses to the conversation.

2.  The police don't keep track of your property as a favor to you.  They do it in case the prosecutor wants to use it as evidence against you.

3.  Also, some property gets lost in the system, through incompetence or greed on the part of law enforcement and correctional officers.


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Don't Sign a Merchant Confession Form

In stores with well-organized security, the staff normally tries to get shoplifters to sign confession forms.1 These forms vary in style and, of course, you won’t see the word “confession” anywhere on the document. Often, the really deadly part is in the fine print. See Sample Merchant Confessions Forms.

Security staff may try to persuade you to sign the confession form by pretending that it’s harmless, saying things like:

•  Oh, this? It’s just the standard paperwork. We have to do this for every incident. It’s no big deal. Sign here.

•  This document will help you later on, because it shows that you co-operated and didn’t try to run away or struggle.

•  If you sign this, it will make you look better in court, because it’ll prove to the judge that you took responsibility for your actions.

•  Don’t worry, you’re not going to jail or anything. You’ll just get probation and have to stay out of the store from now on. Of course, it’s your choice. You can refuse to sign and see  what happens….

These merchant confession forms are used in two ways: 

    1.  The store security staff gives the confession form to the 
         police, who will pass it along to the local prosecutor, to use 
         as evidence against you in a criminal case.

    2.  The store security staff gives the confession form to the 
         store’s lawyers, to use as evidence against you in a civil 
         case (usually a lawsuit to make you pay the store money).

Merchants nearly always give their confession forms to the police, for use in criminal prosecution. They can file civil suits instead of or in addition to this, but they rarely do so, because it’s not worth the money they’d have to pay an attorney to do the legal work. However, merchants sometimes send threatening letters to shoplifters, saying that if the person doesn’t pay some large sum of money, the store will sue him. This is likely to be an empty threat. Don’t respond to a demand letter from a merchant without first consulting a lawyer. (On the other hand, if you receive a letter from the prosecutor’s office or from the court, that’s serious. You should immediately contact a criminal defense lawyer.)

Once you say the Magic Words: I’m going to remain silent. I would like to see a lawyer, the police must stop asking you questions. However, they sometimes try to provoke you into breaking your silence, by talking to each other about all the horrible, terrible things that could happen to you in jail. That’s what the officers did to Phillip in Pocketful of Felony. When the police are playing this game, they’ll make scary predictions about how you’ll be beaten up and/or raped by large, vicious prisoners of a different race.2 (Some officers lead a rich fantasy life.) Just remain silent.

If you’ve been arrested and realize that you accidentally said something to an officer, don’t panic. As soon as you remember that you’re supposed to be remaining silent, repeat the Magic Words: I’m going to remain silent. I would like to see a lawyer. Just because you’ve answered some questions doesn’t mean that all is lost. You may not have said anything that bad yet. But if you go on talking, you’re bound to say damaging things eventually. Besides, the officers are likely to start tape recording you or trying to get you to sign a statement. Stopping can’t hurt, and it may help. Don’t fall for the old “the cat’s out of the bag, so you might as well tell us everything” routine.

1.  Of course, even if you don't sign a merchant confession form, you'll still be in trouble if you talk to the store's security staff.  The security agent will write down whatever you say (accurately or not) in his report, and that will definitely be used against you in court.

2.  Although this does happen, it's rather unlikely.  See Going to Jail for the First Time.


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Resisting Interrogation:

Common Interrogation Lines

It’s unlawful for the police to beat you into confessing;1 however, it’s perfectly legal for them to sucker you into it. That’s why interrogation doesn’t usually involve bright lights and rubber hoses—more often than not, the officer sounds sympathetic or at least business-like. And that can leave you even more vulnerable to manipulation, because when you feel relieved that the officer isn’t being really scary, you tend to let your guard down. Besides, it’s truly difficult to overcome the natural urge to talk one’s way out of trouble. That’s why it makes so much sense to train yourself to say I’m going to remain silent. I would like to see a lawyer, under any circumstances. It’s got to become a reflex you can rely on, the same way you know that you’d automatically start swimming if you fell into deep water, even if you were scared and disoriented.

Common Interrogation Lines

You’re not a suspect. We’re simply investigating here. Just help us understand what happened and then you can go.

If you answer questions, you’re likely to become a suspect, if you aren’t really one already.

What are you afraid of? If you haven’t done anything wrong, then you shouldn’t have any problem answering my questions.2

What you should be afraid of is being lured into answering questions. You don’t have anything to prove. Remember, in court you’re “innocent until proven guilty”—and the thing most likely to prove guilt is an unplanned statement made when you’re arrested. If the police are thinking of arresting you, answering their questions will make them more determined to do it, not less so.

Look, if you don’t answer my questions, I won’t have any choice but to take you to jail. This is your chance to tell your side of the story.

This is the commonest trick of all! The police consistently pretend that they’re considering letting you go, when they’ve already made up their minds to take you to jail. Remember, the time to tell your side of the story is when you’re in court and have your lawyer helping you—not when you’re alone with a cop who’s busy building a case against you. See how a real police inspector uses this technique during an actual interrogation, in Use a Pie, Go to Jail.

Your friends have all cooperated and we let them go home. You’re the only one left. Do you want to stay in jail?

The police can lie about where your friends are and what they’ve said. Take a look at Rat Jacket. Don’t trust information given to you by the cops. Make sure to verify your facts through a lawyer or your friends and family.

I’m tired of screwing around. If you don’t answer my questions, you’re going to be charged with obstruction.

Well, you know this is garbage, because the Constitution guarantees you the right to remain silent—so refusing to answer questions can’t be against the law. But some cops will still threaten you with “resisting an officer” or “obstruction of justice,” just to see whether you’ll fall for it.

Come on, I’m not asking you to sign anything. We’re just talking. And you can stop any time you want to.

Remember, anything you say can be used against you in a court of law. You don’t have to sign anything to make it a real confession—the police will just quote you (and they may be taping you, too). The time to stop is before you ever begin—even a little time spent answering questions can completely screw up your case.

Look, we’ve got all the evidence we need to convict you, so you might as well confess.

Yeah, right. If the police really had all the evidence they needed, they wouldn’t waste time talking to you. The only reason they’re questioning you is because they don’t have enough proof, and they’re hoping you’ll be kind enough to give it to them.

Basically, the case against you is really strong. It’s not a question of whether you’re going to jail—it’s a question of what you’re to jail for. This is your last chance to get the right information to the DA before he decides on the charges.

This is not the time to give more information to the DA (the prosecutor). You can do that later, once you’ve got a lawyer helping you. After all, the DA can change the charges any time up to trial, and usually does—reducing or dismissing them as part of a plea bargain. But your lawyer can get you a better deal if you don’t give away all your bargaining power by confessing to the arresting officers.

You know, there’s only one person who can help you right now, and that’s you. I can listen, but you’ve got to do the talking. This thing is going to eat at you; it’s going to weigh you down for the rest of your life, if you don’t get it off your conscience. Things look pretty bad right now, and they are. But this is where you have to start from. You’ve got to get this stuff out now, so you can move forward. If you could talk to the victim right now, what would you want to say to him?

Confession may be good for the soul, but not when it’s to the police. Talk about your feelings with a spiritual advisor such as a minister, priest, rabbi or imam, or with a licensed counselor such as a psychiatrist, psychologist, or social worker (but not a probation officer). They have the professional training to help you, and more important, they’re prohibited by law from testifying about what you confide to them. Cops, on the other hand, will gladly testify about what you’ve “gotten off your chest.”

You got a choice here. Either you answer my questions, or you’re going to jail. And I’d hate to see a nice white boy like you get punked by a bunch of nigs.

            – or –

You can talk to me now, or you can go to jail. And let me tell you something, there’s women in that jail who haven’t been outside in months, women who haven’t been with a man for a real long time. How’d you like to be raped by a bunch of lesbians?

Cops use this kind of race-baiting and queer-bashing pretty frequently to scare white people who haven’t been to jail before. And the cops aren’t particularly subtle about it. Don’t let some bigot with a badge put his trash into your head.

TV and movies make rape-in-jail scenarios look more frequent than they really are. Most people in jail are there for drug or property crimes, not crimes of violence (much less sexual violence). If you behave reasonably, other prisoners really aren’t likely to give you a hard time. See Going to Jail for the First Time.

1.  The 5th Amendment to the U.S. Constitution says that no one "shall be compelled in any criminal case to be a witness against himself."

2.  This is not the time to launch into a political discussion of how the legal system is malfunctioning and can't be trusted to protect the innocent.  Don't let yourself be drawn into any kind of conversation at all.  Besides, this "what're you afraid of" business is like a 12-year-old's dare ("If you're so tough, why don't you try getting across the tracks before the train comes?" or "You don't even know the first thing about how to drive - let's see you take your Mom's car around the block.").


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General Interrogation Techniques

You know the police are really trying to manipulate you when they offer a legal defense or moral justification for what you’re accused of doing, or imply that what happened was due to an accident or to circumstances beyond your control.1 In applying this tactic, the interrogator frequently offers the suspect two choices, for example: a believable explanation or an unbelievable one; an honorable excuse or a dishonorable one. Of course, both choices are still damaging admissions—it’s just that one sounds better than the other. Imagine the following lines said by a sympathetic, understanding police officer in a warm, reassuring tone of voice:

Legal Defense

I understand what you’re saying…he threatened you, and essentially you were acting in self-defense.

• Okay, we’ve got you for possession of marijuana. But what isn’t clear to me is: were you just out to get stoned, or were you maybe using it for medical purposes?

Moral Justification

• What I’m wondering is whether you needed that money so you could take care of your kids and get them decent food and clothes and all—or did you just do it because you wanted drugs or new Nikes or whatever?

• Well, that’s a perfectly normal reaction. When a man finds out that his wife is sleeping with another guy, he’s going to want to go out and do something about it.

Accident or Circumstances Beyond Control

• Now, I wasn’t there, so I don’t know. Only you know what really happened. But I’m thinking that when two people get into it, when there’s an argument, stuff can happen that nobody ever intended. I mean, you could’ve just been shoving each other around, and he could’ve fallen and hit his head by accident—just plain bad luck.

• Obviously there’s a difference between being an active participant and being a bystander. It’s one thing to be actually involved in selling the drugs, and it’s another thing to just be in the house when some other guys are doing a deal there. But the way things look, you could be either one. And the only way we’re going to be able to figure out what your real role was, is if you talk to us.

Another common aspect of Reid interrogation is minimization/maximization, contrasting the worst case scenario with the best possible outcome.

• You know, there’s a lot of different ways this case could be charged. Anywhere from first-degree murder—that gets you life without parole—all the way down to involuntary manslaughter, for which people typically get probation. What we’re doing right now is trying to understand what really happened, so we can make a decision which way to go…

Often the police will even say, “Look, I’m not making any promises…” and then imply that confessing will result in a better outcome in court: lesser charges, a more favorable sentence, etc. This is a lie. The police are not authorized to offer leniency in exchange for a confession. Only the prosecutor or judge can make a plea bargain.2

All law enforcement officers are trained to question suspects. Very few civilians have any practice in spotting or withstanding the interrogation techniques police use against them. It’s pretty stupid to play such lousy odds when your liberty’s at stake.

It’s initially surprising that the Good Cop Bad Cop routine works so well, since it’s generally so obvious. You’ve seen it in hundreds of TV shows and movies, and most people consider it a cliché. Yet law enforcement officers use it in every city, every day…because it works nearly every time. And a big reason it works so well is that when you’ve just been arrested, you’re extremely vulnerable. You’re thinking of all the horrible things that are likely to happen: going to jail, disappointing your loved ones, being publicly disgraced, losing your job, failing school, etc. On top of that, if you’ve been in custody all day or all night, you’ll be suffering from fatigue and hunger, and perhaps other physical stresses. So, psychologically, you’re a sitting duck. And even though you know, intellectually, that the good cop is just trying to manipulate you, you cannot help having hope and trust in the one person in this awful situation who seems to be on your side. It’s a tough problem, but there is a solution. The answer is to train your mind, so that you say I’m going to remain silent. I would like to see a lawyer, no matter how upset you’re feeling or how kind the officer seems. “Don’t just practice until you can get it right, practice until you can’t get it wrong.”

Of course, sometimes the cops aren’t pretending. The bad cop may, in fact, have lost his temper and be yelling at you for real. Or the good cop may truly want to help you, and may think that your answering questions will somehow benefit you. But whether or not the cops are sincere, your strategy remains the same. You should still say: I’m going to remain silent. I would like to see a lawyer. Because if the bad cop really does want to make trouble for you, your giving a statement will make it easy for him. And the good cop, in urging you to answer questions, is giving you bad advice. Some officers honestly think that if a suspect makes a statement, it will be helpful. But it doesn’t work that way in court. Prosecutors can almost always find something in suspects’ statements that can be used against them. That’s why, when you do tell your side of the story, you should do it with the help of your defense attorney—so that your words can’t be twisted or misquoted.

If you’re arrested with friends, make an agreement that no one will make statements to the police until everyone’s been able to talk to a lawyer and decide calmly what to do. Be aware of the paranoia that tends to set in after people have been separated.

Warning: Do not have a strategy discussion in the backseat of a police car!

If you’ve been arrested with someone else, and the cops lock the two of you in their car and walk away, you can bet dollars to donuts that they’re recording your conversation. So if you’re in this situation, just remind the other person that the smart thing to do is to say: I’m going to remain silent. I would like to see a lawyer. And leave any further discussion until later.

When you’re in jail, don’t talk to your cell-mates about what happened to you or who was with you—because you really don’t want them testifying at your trial or sentencing hearing. Don’t even talk about mutual acquaintances. Stick to safe topics such as movies, music, sports, etc. You’ll make it a lot harder for anyone to snitch on you, if you don’t snitch on yourself.


See "Good Cop, Bad Cop"

See "Rat Jacket"

1. John Reid codified these tactics, referring to them as the "Nine Steps of Interrogation." Reid and his partner Fred Inbau spent decades writing about and teaching interrogation techniques, and business is still booming at In U.S. police acadamies, their books have been the most popular texts on this subject. Their work is full of sample scripts, generally involving a hapless suspect named Joe: "Joe, if this whole thing was your idea, that tells me that you have a criminal mind. But if you were just talked into doing this against your better judgment, that would be important to include in my report. You were just talked into it, weren't you?" For examples of how such techniques get innocent people to confess to crimes, take a look at the work of Richard Ofshe, at

2. There's a difference between confessing and snitching. A law enforcement officer can't offer you a deal in return for a confession, but he can make a snitch deal. See Informants.


Please see: Probation, Parole and Supervised Release


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Please see story: Narc in the Park

Undercover officers

There is no reliable way to identify undercover agents or informants.  The good ones act entirely in keeping with their roles.  An experienced undercover officer is not going to seem unduly nervous, wear inappropriate clothing, or fumble with the drugs he’s handling.

Undercover officers are legally allowed to lie when you inquire whether they’re law enforcement personnel.  It does no good to ask, “Are you a cop?”  Undercover cops can just reply, “Of course not.”  After all, if they couldn’t lie, it would be a waste of effort for law enforcement agencies to train and disguise all those officers for undercover roles—they’d be exposed early on, every time they tried to pass.1


It’s perfectly legal for undercover officers and informants to engage in criminal activity to protect their cover.  Narcs are allowed to buy, sell and do drugs of every kind.  Forget any urban myths you may have heard to the contrary: narcs are entitled to smoke/snort/swallow/inject controlled substances.  Similarly, vice officers investigating prostitution are allowed to get naked and receive “massage.”  (It’s good to know that your tax dollars are being well-spent.)2

Although many undercover officers and informants come equipped with transmitting or recording devices, this type of electronic equipment is miniaturized.  A police agent who’s “wearing a wire” is unlikely to be uncovered by mere patting.  The equipment can easily be hidden in hard articles of clothing, such as belt buckles, boots, etc.  Of course, undercover officers and informants don’t have to be wired for sound, they can just report from memory (accurately or not) about whatever they’ve seen and heard.

1.  Undercover officers find it a particularly useful tactic to mention that they're worried about the police, occassionally asking the suspect whether he's a cop—the ol' switcheroo. 

2.  Most people are surprised to learn that law enforcement agents can, as part of their job, lie and engage in criminal activity.  It seems unfair that the police don't have to live up to the same standards that they're enforcing.  However, a great deal of police investigation operates on the basis that the end justifies the means—a flawed rationale, particularly in the context of maintaining a just legal system.  Crooked tools build a crooked structure.


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Law enforcement agencies often use informants. Some informants work for money, but most are people who’ve been caught engaging in criminal activity. The vast majority of snitch deals are made by the police, who refrain from charging a suspect they’ve caught, in return for information or undercover work (typically, buying or selling drugs). A much smaller number of snitch deals are made by the police and the prosecutor together, when the suspect has criminal charges pending or is serving time. In these situations, the prosecutor lowers the charges or seeks to reduce the sentence, in return for information or undercover work.

It’s not worth it to law enforcement agencies to use snitches in investigating misdemeanors—they want information leading to felony convictions. In choosing a snitch, law enforcement agents look for someone who has significant criminal experience (a long rap sheet), because such a person is likely to have good connections and also seem relaxed and natural while participating in undercover work. Occasionally, officers will use a less-experienced snitch, if that person has a really good connection to the particular target of their investigation. A very productive snitch will be protected by law enforcement, to maintain him as a source of future information. An inept snitch may not be so lucky.

Informants can be very deceptive since they’re usually quite at home with the activities and communities they’re working on. In fact, an informant can be an old friend or acquaintance who only just recently happened to fall under police control.* Even though you know that someone’s been quietly selling drugs for many years, there’s no guarantee that he hasn’t just as quietly become an informant in the past month. Some informants are prisoners (or cops pretending to be prisoners), put into the same cell as an incarcerated suspect. Just as with undercover officers, informants do not admit that they’re really law enforcement agents in disguise.

*Emphasis added by SWOP-LV


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Infiltrators are undercover officers or informants who become members of political organizations. Some infiltrators just report on the other members of the organization (who they are, what they’re doing). Other infiltrators actively undermine the political organization, by causing dissension among the members or by promoting risky, harmful activities. An infiltrator who pushes other activists to engage in behavior that’s contrary to the organization’s goals or ethical standards is an “agent provocateur.” Just a few of the organizations that have suffered from government infiltration are: the AFL-CIO, the Black Panthers, the Committee in Solidarity with the People of El Salvador (CISPES), and Earth First! A huge and particularly well-documented infiltration and disruption program was COINTELPRO, a long-term FBI operation.

Some activists, at the beginning of meetings, mistakenly announce: “Will all law enforcement agents please identify themselves?” Needless to say, no one comes forward. Aside from being futile, this ritual gives participants a false sense of security, as they may imagine that their meeting is therefore entirely free from surveillance.

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An undercover officer can legally initiate crime. That is, the narc can be the person pushing the drugs, or actively seeking a source for buying them. (“Hey man, you know where I can get some good weed? Can you hook me up?”)

Most people imagine that when an undercover law enforcement officer instigates a crime, that’s entrapment. Unfortunately, “entrapment” is one of those words that has a much narrower definition in a court of law than in common speech. To argue at trial that a criminal defendant was entrapped into committing a crime, the defense attorney has to get permission from the judge in advance. She has to show that the defendant (1) had no inclination or tendency to commit the crime, and (2) that the law enforcement agent(s) exerted considerable psychological pressure to get the defendant to break the law. Unfortunately, when the defendant has prior convictions or even arrests, the prosecutor often successfully argues that the defendant has demonstrated criminal tendencies. Moreover, it’s hard to show that the defendant was urged so intensely that he eventually caved in and agreed to commit the crime. For example, in the preceding story, Narc in the Park, Jamal wouldn’t be successful in arguing that the undercover officer overwhelmed him into buying the marijuana. By contrast, consider the following two cases which show how much evidence is required to prove entrapment.

Entrapment Example 1: Postal inspectors, pretending to be a variety of different sellers of pornography, spent over two years persuading a man to send away for obscene photos. The court ruled that this was entrapment.

Entrapment Example 2: An informant in a drug treatment program, after much pleading and insistence that he was truly suffering because the treatment wasn’t working for him, eventually convinced a fellow patient to get drugs for him. The court ruled that this was entrapment.1

1.  In every city, undercover law enforcement agents are spending their time encouraging and assisting people to engage in criminal activity, to see who's going to fall from grace.  Instead of helping to maintain a healthy society, they're picking at scabs on the body politic.

Please see: Arrest Warrants

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Please see story: Search and Destroy

Search Warrants

Search warrants allow law enforcement agents to search a particular place (or vehicle or person) and seize items that might have evidentiary value. To obtain a search warrant, an officer must show a judge that there’s probable cause that a crime has been or is being committed. The officer’s “affidavit,” or statement of probable cause, is usually submitted to the court in writing, but sometimes an officer gives her affidavit orally, usually when calling from a crime scene to request a warrant. (For an example of probable cause, see Arrest)

The general rule is that the police are required to “knock and announce” when serving a search warrant, as in: [knock, knock] “Ma’am, this is the police. We have a search warrant for these premises.” If you then refuse to let the officers in, they have the right to force the door open.

The police are allowed to skip the knock and announce part when they reasonably believe that officers would be endangered or evidence destroyed, should the occupants have any warning.1 Even when they do knock and announce, they may only wait a few seconds before bursting in.

If police knock on your door and state that they have a search warrant, step outside and close the door behind you, then ask them to give you the warrant so you can read it. (If you stand inside with the door open, the police may just push past you before you can react.) Make sure you actually get your hands on the warrant so you can read it properly. Don’t let the officer just wave it in front of you.

You’re looking for three things, to be sure it’s a valid warrant:

  • the address

  • the date

  • the judge’s signature

Address: checking that the warrant really does have your address on it is the most important thing. Police frequently search the wrong house or apartment, and claim it was just a mistake. Note that a warrant can’t be for a whole apartment building or floor—it has to be for a specific apartment.

Date: the date should not generally be older than two weeks. There isn’t a precise number of days that warrants are good for. They can be served as long as a reasonable officer would expect to find the items listed in the warrant. Some judges have held that a particular warrant was valid even after a month or two, but these were rare cases. For simplicity’s sake, most police departments just make a rule for themselves about how many days the officers can wait before serving a search warrant—usually it’s seven or ten days.

Signature: it’s pretty unusual for a warrant to lack a judge’s or magistrate’s signature2, but it could happen.

Warrants come in a wide variety of formats. Take a look at the sample search warrants, and see how quickly you can spot the address, date, and signature. (While you’re looking for these items, imagine that you’re standing in front of your door, with police officers breathing down your neck.) The address is hardest, because it’s often in the middle of a paragraph. The date and signature will be at the end.

If you do find a flaw in the warrant, show it to the police and tell them that you don’t consent to their coming in. For example, you might say:

  • This warrant is for a different address: it’s for 1965 Montgomery St., and my house is 1966 Montgomery. I don’t consent to your coming in.

  • This house has apartments in it. Your warrant doesn’t say whether it’s for Unit A or Unit B, so it’s no good. I don’t consent to your coming in.

  • This warrant is four months old. It’s not valid anymore. I don’t consent to your coming in.

  • This warrant doesn’t have a judge’s signature, so it’s not valid. I don’t consent to your coming in.

  • This is a laundry receipt, not a search warrant. I don’t consent to your coming in.

Now, just because you point out a mistake in the warrant and withhold consent, that doesn’t mean the officers won’t come in and search. The police may decide to ignore your statements; or the warrant may, in fact, be valid. Your job is simply to create ammunition for your lawyer to defend you with later on, by showing that the police didn’t “make an honest mistake” in relying on that warrant. Memorize what the police say in response to your showing them the error in the warrant—especially if it’s something like, “I don’t give a shit what your address is.”

There are other parts to a search warrant that may be relevant during the course of defending a criminal case, but they’re not as useful while the police are right at your door. For example, search warrants must specify what is being looked for and which parts of your home, vehicle, etc. can be searched. However, as you can see in the samples, search warrants usually have a whole long list of things to look for and places to look in. This gives the police plenty of room to maneuver. Nonetheless, you should make notes (written notes if possible, otherwise mental notes) about where the officers search and what they move.

Normally, search warrants must be executed during daylight hours, unless the warrant includes specific permission for the officers to serve it at night.

While executing the search warrant, the officers are allowed to detain anyone who happens to be present. The police can pat down the people they’re detaining,3 but cannot search any of them more intrusively, unless the warrant specifies that particular person by name. (The second of the sample search warrants includes a person to be searched, as well as a place.) However, it’s not unusual for police who are searching pursuant to a warrant, to discover things that give them probable cause to arrest some or all of the people present—and once a suspect’s been arrested, the officers can search her clothing, body, etc.

Some search warrants include permission for the officers to answer your telephone while they’re on the premises searching. The police pretend to be you, or someone who’s a part of your household, business, etc. They try to get the caller to say things that can be used against you (or against the caller) in court.

Most searches are very destructive. Your property is likely to be thrown about and damaged. So after the police have gone, take three or four dozen photographs of the place, before doing any clean-up. These may be useful in defending against criminal charges and/or in suing the police. Make sure you’ve got good enough lighting that the photos will come out well.

1.  If the police kick the door in and point guns at you, screaming, "Police! Down on the floor, nobody move," you can skip attempting to read the warrant, and instead just keep your hands in view and hold very still.

2.  A magistrate is a subspecies of judge.

3.  During a detention (as opposed to an arrest), the police are allowed to pat down the suspect, in order to protect themselves from hidden weapons.  This search is limited to feeling the surface of clothing, and does not include emptying the suspect's pockets or undressing the suspect.  See

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Warrantless Searches

-Based on Consent:

Law enforcement officers can search without a warrant under a wide variety of circumstances. Among these, there’s only one situation in which you have any chance of preventing the intrusion—and that’s by saying “I don’t consent” when the police ask whether they can search. This is a powerful tool for using your civil rights, as important as remaining silent and asking to see a lawyer.

The right that upholds your privacy is the Fourth Amendment to the U.S. Constitution, which protects your body, home, papers and possessions from unreasonable searches and seizures. Law enforcement agents are forbidden to violate your privacy unless they have a specific legal justification, such as executing a valid warrant or following a fleeing suspect in hot pursuit. If officers are asking your permission to search, that means that they don’t honestly believe they have one of these lawful excuses—so they’re hoping that you’ll foolishly give up your rights and consent to the search.

An officer’s request to search often sounds like an informal order, as in:

  • Why don’t you show me what you’ve got in that bag?
  • There’s been a report of an incident near here.  I want to come in and take a look around.
  • Let’s see some i.d.

The officer won’t point out that you have the option to refuse. So it’s up to you not to open or unpack anything, until you’ve verified that the police are giving you an actual order. You can say, “Are you just asking me, or are you ordering me?” Either the cop will give up, or he’ll specifically order you to comply with the search.

Obviously, if the officer just leaves you alone, you’re in good shape. And even if the officer insists on searching over your objection and finds something incriminating, you’ll have prevented the prosecutor from arguing that you consented to the search—which gives your lawyer a better chance of getting the evidence suppressed, on the grounds that it may have been seized illegally.

When the police imply that you’re hiding something, remember that you don’t have anything to prove. If the police are asking permission to search, that means you’re in the position of power. To use it, all you have to do is say, “I don’t consent.”

Saying “I don’t consent” may seem a little formal, but it helps keep the police from claiming that they thought you gave them permission. Many cases have been lost because the defendant was too polite or intimidated to refuse consent clearly. For example, if you said, “I’d rather you didn’t come in,” it could be argued that you were permitting the officers to enter your home, while just expressing a little discomfort about it.

Law enforcement agents may try to invite themselves into your house, even though they don’t have a valid legal reason for entering. However, the right to privacy in your own home is very strong,1 provided that you stay alert and say “I don’t consent” when the police ask to come in.2 It’s even easier to do this if you keep the door closed while you refuse to give them permission:

The police will often tell you they don’t need a warrant to come into your house, because they have a legal rationale such as probable cause. That may or may not be true. But it’s always safest to reply: “I don’t consent to your coming in.” This statement cannot harm you, and it will be helpful in court if the police are wrong or lying.

If the police insist on coming in after you’ve refused consent, stand back and let them through the door—but remind them, even as you’re stepping aside, that you still don’t consent to their entering. Do not physically resist the police when refusing consent, because you’re likely to get hurt and charged with obstructing or assaulting an officer.

Sometimes, the police will threaten you or bargain with you, to get you to consent to a search of your home. For example, the officer may say, “Look, if I have to go back downtown and get a warrant, I am not going to be happy. And if that happens, by the time I get through searching, this place is going to look like a hurricane hit it.” This isn’t meaningful, because the police normally trash your house anyway when they search. You can expect your home to be “tore up from the floor up,” so you might as well refuse consent and see whether the officer can actually obtain a warrant.

What’s really scary is when the police threaten to take your kids or pets away, if you don’t consent to a search. The less-subtle threats sound like this:

  • You want to do this the easy way, and just let us in? Or you want to do it the hard way—we go get a warrant and while we’re at it, we call Child Protective Services?

  • That’s a nice little dog you got there. Why don’t we come in and do a walk-through, to make sure everything’s okay? Or, we can go get a warrant. Then we’ll come back, bust you, and send your dog to the pound. You might get out of jail before they put him to sleep, or then again you might not…

Whatever the threat is, you shouldn’t consent to let them in. If the police don’t come back, then they couldn’t really get a warrant and you’ll have called their bluff. If the police do come back, you’ll at least have had time to call friends or family to come get your children or pets. And you’ll have been able to call a lawyer for advice or help during the search.

It’s critical that all the people who live in your home, including temporary houseguests, understand that they must not consent to let the police enter or search. (Your door chain is only as strong as its weakest link.) The police can rely on consent from anyone who appears to be a resident or lawful user of the property. So you have a real problem if the person who answers the door is just a friend who came to dinner, who doesn’t know to say, “I don’t consent.” One way to prevent accidents is to post instructions inside, on or near the door, stating:

Officers can even receive consent to enter your home from school-age children, so it’s important to teach the kids, too, about their Fourth Amendment rights and the policy of your household.

If you’re a tenant, your landlord is not entitled to let the police enter your home without a warrant, unless there’s a provision in your lease authorizing the landlord to do so. So, if you rent, check your lease. Look for a sentence or two that says something like:

  • Landlord reserves the right to allow entry of law enforcement officials, upon request.

– or –

  • Landlord may admit law enforcement personnel onto premises, as needed, to further investigation or prevention of illegal activities.

Such clauses allow your landlord to consent to officers’ entering your home, whether you agree or not. 

1.  The Bill of Rights was written after the American Revolution, by people who personally remembered abuses of power by the British government, particularly the searches conducted by revenue officers.  These officers were issued a kind of all-purpose serach warrant, called a "writ of assistance," that allowed them to search wherever and whenever they wanted to.  The 4th Amendment was designed to prevent this from happening again—but it's not much good if you forget and give consent to search.

2.  You'll have noticed that vampires can't cross your threshold either, unless you invite them.

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Other Types of Warrantless Searches

The following are some of the situations in which law enforcement agents can search without a warrant. But never just agree to a search because it appears that one of these reasons applies: make sure that the officer gives you a direct order, so it can’t be argued that you consented to the search.

Court Supervision

A typical condition of court supervision (probation, parole, supervised release) is that law enforcement agents are allowed to search your person, vehicle, home, and/or workplace without probable cause (see Searches While Under Supervision).

Search Following Arrest

When you’re arrested, the officers can search your body and the belongings you have with you. If you’re indoors, the officers can search the area under your immediate control (the distance to which you can lunge). Officers can have blood samples or fingernail scrapings taken, to preserve potential evidence that would otherwise disappear.

Automobile Searches

If you’re arrested in a car, the officers can search the passenger compartment, because that’s the area under your immediate control. Whether or not anyone’s been arrested, if law enforcement agents have probable cause1 to believe that your vehicle contains proof of a crime, they can search it without a warrant—and open any container in the car that might hold the items they’re seeking. If your car is impounded for any reason, even for just being in a tow-away zone, the officers can search the whole vehicle, including the trunk.

Exigent Circumstances

“Exigent,” in this context, means urgent, a circumstance that demands immediate attention. Law enforcement agents can enter when there’s a fire or other danger, to deal with it or to rescue people, and they can investigate the cause of a fire for a limited time. In addition, officers can enter in hot pursuit of a serious criminal, or to capture one who’s about to escape. Judges usually find that if the police had less than half an hour in which to act, then proceeding without a warrant is reasonable.

Emergency Response

When officers hear a cry for help, they can enter a building in response. If law enforcement agents believe that a child is being abused or is in other immediate danger, they can enter the premises to rescue her.

Students at Public Schools

On school grounds, school officials can search a student and the belongings she’s carrying, if they have “reasonable suspicion” that the student has violated the law or a school rule. Reasonable suspicion is a lower standard than probable cause.2

The U.S. Supreme Court hasn’t yet analyzed whether a student has a right to privacy in her locker or desk. Various lower courts have produced conflicting opinions. Under the circumstances, a sensible student would not want to keep her most private possessions at school.

Drug Testing

The courts sometimes find drug testing constitutional. High school students can be required to submit to random drug testing in order to engage in sports, band, chorus, or academic competitions. Employees in certain high-risk jobs can be required to drug test (such as railroad workers who’ve been in an accident or broken safety rules; or applicants for U.S. Customs jobs that relate to drug-smuggling or that involve carrying a gun).

Airline Passengers

Passengers on airlines can be required to go through metal detectors and submit to searches of their bodies and their possessions, before boarding the plane. Of course, a passenger may change her mind and decide not to take the flight after all, in which case she can’t be searched. However, once the passenger has cooperated with even part of the search process—by handing over her luggage or going through the metal detector—she cannot stop the process until the authorities are completely done searching. 

1. and 2.  Probable cause is the amount of proof required to get a search warrant or arrest someone.  Reasonable suspicion is the amount of proof required to detain someone.  See Detention and Arrest.

Showing Identification

U.S. citizens do not have to carry identification with them.Occasionally, cities or counties try to pass “anti-vagrancy” laws requiring everyone to carry identification, but such provisions have always been held unconstitutional when appealed to higher courts.

However, in order to drive most vehicles, you are required to have a license and to produce it on demand. Failure to have your driver’s license with you while driving your car can result in a ticket or even arrest. When you’re simply traveling, you may drive through other states relying on the license issued in your home state. But if you move to a different state, you’ll have a limited amount of time (for example, 30 days) to get a driver’s license for your new home state. If your license is suspended in a particular state, you can’t drive in that state at all, no matter which other states’ licenses you possess—it’s your privilege to drive that’s been cancelled, not just the piece of paper the state issued you.

1.  There have been more frequent attempts lately, to pass laws that would issue each U.S. citizens a "national identification card" and/or require everyone to carry identification with them at all time.  No such legislation is in effect, however, at the time of this printing (Novemberr, 2004).

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Giving Your Name

The following explanation applies to situations in which you’re approached by law enforcement agents who ask for your name.  It does not apply when you’re asked for identification while seeking to pass through a security checkpoint—in that case you have the option of maintaining your privacy by staying away.  The law is murky about security checkpoints at buildings and events.  In the current political climate, judges are likely to support maintaining security at the expense of individuals’ privacy.

So, assuming that a law enforcement officer comes to you and asks for your name, whether you’re required to answer depends on:

(1)  whether you’re in custody and

(2)  which state you’re in.

If you’re not in custody, then you never have to give your name. This applies in every state. However, sometimes it’s a little hard to tell whether or not you’re in custody (which is defined as “not free to go”).  Obviously, you’re in custody if the police have handcuffed you or ordered you to stay put. But sometimes an officer walks up and stands in front of you, or just starts talking to you…and you may not be able to tell whether it’s okay to leave. So you must ask, “Am I free to go?” If the officer doesn’t respond by clearly ordering you to stay, then you should calmly walk away without saying anything else. (See Conversation.)

If you are in custody, you may be required by law to give your name, depending on which state you’re in, and whether you’re merely being detained or have actually been arrested. 1

Some states have a law that you must give your name when you’re detained. Some states have a law that you must give your name after you’re arrested. Some states have both laws. And some states have neither.  For example, the State of Nevada has a stop-and-identify law that requires you to give your name when you’re detained; 2  by contrast, the State of New York has a stop-and-identify law that merely allows an officer who detains you to ask your name, but doesn’t require you to answer. Given these variations, you should consult a local criminal defense attorney to make sure you know the requirements for your particular state. First, find out whether there’s a state law that requires you to give your name during detention or after arrest; and then ask how the Hiibel case affects the way your state’s courts interpret these laws. 3

As a practical matter, if you’re detained or arrested, you’ll usually have to give to your name to have any chance of being released promptly. Even if you’re only being detained, the police will generally hold you until they determine who you are and whether there are any warrants for your arrest. And if you’ve been arrested, you won’t be considered for release unless you provide your name and address. Nonetheless, you may choose to withhold your name on principal, which is legal in many states. Of course, you may have to remain in custody while making your point, but you’re not necessarily breaking the law by refusing to give your name.

The important thing to remember, whether or not you give your name and address, is that you should not answer any other questions at all.

1.   Detention is a temporary period of custody during which the officers are deciding whether there’s a valid reason to arrest you.  It often blends into arrest.  (See Detention and Arrest)   Under both detention and arrest, you can be handcuffed or placed in a squad car—and the police don’t necessarily announce “You’re being detained” or “You’re under arrest.”  So it may be hard to tell which type of custody you’re in, without asking.

2.  The U.S. Supreme Court decided that Nevada’s particular law is constitutional in June, 2004, in Hiibel v. Sixth Judicial Dist. Court, 124 S.Ct. 2451 (2004).

3.   For an example of how to analyze the scope of a state’s stop-and-identify law, see When Do You Have to Give Your Name at the RNC Protests?

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Government surveillance can take many forms, some of which require a warrant or other court order, and some of which require no authorization whatsoever.1

Visual Surveillance

If you’re in a place open to public view, you can be watched, photographed or videoed without notice or permission. This means that your picture can be taken while you’re walking around town, driving through an intersection or sitting in a stadium. In fact, you don’t necessarily have to be in a public place. If you’re visible through a window, your image can be recorded even though you’re inside your own house.

Law enforcement agents can also fly over your property in a plane or helicopter—even as low as 400 feet—looking for illegal activity such as marijuana cultivation. Naturally, they can take photos while they’re at it.

Conversely, there can be private spots in public places. In a public toilet, you can’t legally be watched or photographed while you’re inside a stall with the door closed, because then you’re not in the public view. Generally, when you’re in a place where passersby can’t see you—where you have a “reasonable expectation of privacy”2—the government is not entitled to observe you covertly.

Remember, though, that if you’re given notice of potential surveillance, you lose your reasonable expectation of privacy. Examples of such notices are: “dressing rooms are monitored to deter shoplifting” or “these premises are protected by a closed circuit security system.”

Video and photograph surveillance is used now to detect and record criminal activity. It will also be used in searching for particular individuals, as facial recognition technology becomes more effective.

1.  As with most areas of the law, the rules concerning surveillance vary to some degree from state to state.  This section discusses federal law, which in the context of surveillance constitutes the minimum standard of privacy protection (such as it is.)  For detailed, up-to-date information on state and federal government surveillance, among other topics, see the Electronic Frontier Foundation's website:

2.  "Reasonable expectation of privacy" is a phrase that comes up a lot in legal arguments involving searches and seizures.  It relates to the rights provided by the 4th Amendment to the U.S. Constitution.  See
Searches Based on Consent.

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Surveillance of Telephone Communications

When you’re speaking on the telephone, you have a reasonable expectation of privacy—unless there’s someone standing near enough to overhear. To listen to your phone conversations secretly, law enforcement agents need a wiretap warrant. Wiretap warrants have rather strict requirements. The officers:

    1.     must show probable cause that a specific crime has been or is being committed;

    2.     must list names of specific person(s) to be overheard;

    3.     must give detailed descriptions of subjects to be overheard;

    4.     must stop listening within 30 days (or seek a 30-day  extension);

    5.     must include provisions for terminating the wiretap; and

    6.     must report to the judge concerning intercepted conversations.

Wiretap warrants are more trouble for the police to obtain and report on than regular search warrants, so they’re less commonly used. By contrast, law enforcement agents frequently employ a “pen register” and/or “trap and trace device.” A pen register is a list of the telephone numbers of outgoing calls from a particular phone line. A trap and trace device collects the phone numbers of incoming calls to a particular line. Both types of surveillance collect the time and length of the calls, as well. To utilize a pen register or trap and trace device, the police just need a court order, which they get by showing that the information derived would be relevant to an ongoing criminal investigation.

For an important case, the officers will still want a wiretap, since it reveals the actual conversations, while a pen register or trap and trace device just provides a list of phone numbers.

Note that law enforcement agents can obtain voice mail with a regular search warrant—they don’t need a wiretap warrant. Many people prefer to use an answering machine, rather than a voice mail service, because it provides more control over the privacy of stored messages.

There are two situations in which investigating officers can legally listen to and record your phone conversations without getting a wiretap warrant

  • calls from a prisoner in a jail, prison or immigration detention facility (including calls from a prisoner to a lawyer)

  • calls to or from an undercover officer or an informant.

Sometimes, while on the phone, people speculate or make jokes about the line being tapped. This is a poor idea, since acknowledging that someone may be listening means that you don’t have a reasonable expectation of privacy. If you’re on the phone and someone does make a stupid comment about the line being tapped, say: “That’s a silly joke. I believe that I have a reasonable expectation of privacy in this phone conversation.”

There are certainly instances in which law enforcement agents listen to phone conversations illegally. Such unlawful activities may not come to light if the officers are clever in laundering the information they’ve obtained, for example, attributing it to a confidential informant. It’s easier for law enforcement to listen illegally to a cordless phone or a cell phone, than to a corded phone (the kind that has a curly cord running from the receiver to the phone itself).

1.  Although many telephones are advertised as being particularly secure against eavesdropping, surveillance technology is improving all the time.  The system that ensures privacy today may not do so tomorrow.  In the end, the most private conversations are those that are conducted while walking around outdoors - assuming the person you're talking to isn't an undercover officer or an informant.

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Surveillance of Mail

Mail cannot be opened without probable cause, but no authorization is needed for mail to be sniffed by law enforcement dogs trained to seek drugs or other contraband.

Mail sent or received across the national border can be opened and searched, if there is “reasonable cause” to suspect that it contains contraband, however, the officers are not supposed to read any accompanying correspondence.

Mail sent to or from a prisoner in a jail, prison or immigration detention center, can be opened and read by the authorities. Letters to or from a prisoner’s lawyer can be opened and shaken out, but not read. However, it’s important to verify with the particular facility exactly how to label the envelope, to make sure it will be treated as confidential legal mail. For example, one institution may want you to write “attorney/client correspondence,” while another may tell you to put “legal mail—privileged and confidential.”

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Surveillance of Garbage

Once you put your trash out to be picked up, on the curb or in a dumpster, you’re considered to have abandoned any claim to it. So, since it’s no longer your property, it’s not protected by the Fourth Amendment. You might consider using more thorough methods of disposal, such as incineration, when privacy is particularly important.

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Surveillance of Internet Activity

The Internet is an efficient, but not particularly private, method of communication.

To begin with, whatever you say in a chat room or IRC channel is necessarily a public statement—you don’t have a reasonable expectation of privacy in this context. Using a nickname or handle doesn’t guarantee that you’re anonymous—such identifiers can generally be traced to their owners.

In addition, your Internet Service Provider (ISP) may have already put you on notice in their “Terms of Service” that, under certain circumstances, they’ll voluntarily disclose “content”—not just illegal content, but also material that may only be “vulgar” or “otherwise objectionable.” And with a simple subpoena, the government can obtain the content of users’ communications as well as information about users, including addresses and financial data (such as credit card or bank account numbers).

There has been an increasing amount of litigation and legislation concerning Internet privacy. For example, the USA PATRIOT Act1 allows law enforcement agencies to monitor Internet usage and communications to a high degree.

The USA PATRIOT Act extends the idea of pen registers and trap and trace devices to email. With an easily obtained court order, law enforcement can gather the addresses and routing information that are part of every email message. Yet there’s a big difference between phone calls and email. It’s easy to track phone numbers without listening to the content of phone conversations; but it’s hard to separate addresses and routing from the content of the email messages, because the information is packaged and transmitted together.

With somewhat more effort, the government can also get a wire-tap warrant for your email, which lays bare all aspects of your electronic communications.

The USA PATRIOT Act allows law enforcement agents to monitor “non-content” 2 web surfing, as long as they get a court order (for which they only need to state that the information is relevant to an ongoing criminal investigation). And the USA PATRIOT Act permits ISPs to give the government all “non-content” information about your online communications

To keep the content of your electronic communications private, encrypt them with PGP Mail. PGP stands for Pretty Good Privacy, and it’s been proven strong enough to deter government attempts to penetrate your email. To get the latest version of PGP Mail (either the complete version3 or the freeware version), go to (Note that Zimmermann ends with two n’s.).

1.  The USA PATRIOT Act (Uniting and Strengthening Americans by Providing Tools Required to Intercept and Obstruct Terrorism Act of 2001) was made law on 10/26/01.

2.  The USA PATRIOT Act refers to "non-content" material, but this term has not yet been defined.

3.  The complete version comes with PGP Disk, an application that encrypts data on your computer and your storage media - an excellent idea!

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Beat the Heat: How to Handle Encounters With Law Enforcement
By Katya Komisaruk, Tim Maloney
Illustrated by Tim Maloney
Published by AK Press, 2003
ISBN 1902593553, 9781902593555
192 pages

Available online here.
Available for purchase here.

SWOP Las Vegas highly recommends you add this book to your library!


What To Do If You’re Stopped By The Police by ACLU

ACLU "Bust Card" Download Pdf here, print it out, and carry it with you!

  • Think carefully about your words, movement, body language, and emotions.

  • Don’t get into an argument with the police.

  • Remember, anything you say or do can be used against you.

  • Keep your hands where the police can see them.

  • Don’t run. Don’t touch any police officer.

  • Don’t resist even if you believe you are innocent.

  • Don’t complain on the scene or tell the police they’re wrong or that you’re going to file a complaint.

  • Do not make any statements regarding the incident.

  • Ask for a lawyer immediately upon your arrest.

  • Remember officers’ badge & patrol car numbers.

  • Write down everything you remember ASAP.

  • Try to find witnesses & their names & phone numbers.

  • If you are injured, take photographs of the injuries as soon as possible, but make sure you seek medical attention first.

  • If you feel your rights have been violated, file a written complaint with police department’s internal affairs division or civilian complaint board, or call the ACLU hotline, 1-877-6-PROFILE.

1. What you say to the police is always important. What you say can be used against you, and it can give the police an excuse to arrest you, especially if you badmouth a police officer.

2. You must show your driver's license and registration when stopped in a car. Otherwise, you don't have to answer any questions if you are detained or arrested, with one important exception. The police may ask for your name if you have been properly detained, and you can be arrested in some states for refusing to give it. If you reasonably fear that your name is incriminating, you can claim the right to remain silent, which may be a defense in case you are arrested anyway.

3. You don’t have to consent to any search of yourself, your car or your house. If you DO consent to a search, it can affect your rights later in court. If the police say they have a search warrant, ASK TO SEE IT.

4. Do not interfere with, or obstruct the police – you can be arrested for it.


1. It's not a crime to refuse to answer questions, but refusing to answer might make the police suspicious about you. If you are asked to identify yourself, see paragraph 2 above.

2. Police may “pat-down” your clothing if they suspect a concealed weapon. Don’t physically resist, but make it clear that you don’t consent to any further search.

3. Ask if you are under arrest. If you are, you have a right to know why.

4. Don’t bad-mouth the police officer or run away, even if you believe what is happening is unreasonable. That could lead to your arrest.


1. Upon request, show them your driver’s license, registration, and proof of insurance. In certain cases, your car can be searched without a warrant as long as the police have probable cause. To protect yourself later, you should make it clear that you do not consent to a search. It is not lawful for police to arrest you simply for refusing to consent to a search.

2. If you’re given a ticket, you should sign it; otherwise you can be arrested. You can always fight the case in court later.

3. If you’re suspected of drunk driving (DWI) and refuse to take a blood, urine or breath test, your driver’s license may be suspended.


1. You have the right to remain silent and to talk to a lawyer before you talk to the police. Tell the police nothing except your name and address. Don’t give any explanations, excuses or stories. You can make your defense later, in court, based on what you and your lawyer decide is best.

2. Ask to see a lawyer immediately. If you can’t pay for a lawyer, you have a right to a free one, and should ask the police how the lawyer can be contacted. Don’t say anything without a lawyer.

3. Within a reasonable time after your arrest, or booking, you have the right to make a local phone call: to a lawyer, bail bondsman, a relative or any other person. The police may not listen to the call to the lawyer.

4. Sometimes you can be released without bail, or have bail lowered. Have your lawyer ask the judge about this possibility. You must be taken before the judge on the next court day after arrest.

5. Do not make any decisions in your case until you have talked with a lawyer.


1. If the police knock and ask to enter your home, you don’t have to admit them unless they have a warrant signed by a judge.

2. However, in some emergency situations (like when a person is screaming for help inside, or when the police are chasing someone) officers are allowed to enter and search your home without a warrant.

3. If you are arrested, the police can search you and the area close by. If you are in a building, “close by” usually means just the room you are in.

We all recognize the need for effective law enforcement, but we should also understand our own rights and responsibilities – especially in our relationships with the police.

Everyone, including minors, has the right to courteous and respectful police treatment. If your rights are violated, don’t try to deal with the situation at the scene. You can talk to a lawyer afterwards, or file a complaint with the Internal Affairs or Civilian Complaint Board.

Produced by the American Civil Liberties Union.

ARREST THE RACISM. Tell us about your race- or ethnic based traffic or pedestrian stop. Call 1-877-6-PROFILE or go to



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