What to do if you’re stopped by a cop
The Maneater gets a primer on search rights from Columbia attorney Dan Viets.
Feb. 12, 2014
Sophomore wide receiver Dorial Green-Beckham was arrested Jan. 11 on suspicion of possession and intent to distribute less than five grams of marijuana. According to nfl.com, Green-Beckham consented with police to submit a DNA sample and have his cell phone searched without a warrant.
He didn’t have to do any of that.
The Maneater spoke with Columbia attorney Dan Viets, the Missouri National Organization for the Reform of Marijuana Laws affiliate coordinator, about a citizen’s rights when approached by law enforcement officers.
Viets, who is also the board chairman of Show-Me Cannabis Regulation, will also be speaking about marijuana laws and rights 7 p.m. Wednesday in room 2-07 of the Agriculture Building.
The Maneater: What do you recommend one should do when stopped by a law enforcement officer?
Dan Viets: You need to show your driver’s license. You are obligated to do that. But never give permission for an officer to search. If you do that, you have given away your constitutional protection against illegal searches.
TM: What rights are granted by the Constitution when stopped by law enforcement and how can this keep him or her out of additional trouble?
DV: Use your Miranda rights. (Almost everybody) knows the Miranda warning by heart. Nobody does what they call for. A lot of people are hung up on having it read to them, that’s irrelevant. Don’t worry about whether they have read you your Miranda rights. Use your Miranda rights. What are they? Number one, remain silent. You always have that right. Some people assume only after a policeman reads them they have that right, but they always have those rights. Of course, if you’re stopped for speeding and the cop says ‘Did you know you were speeding?’ you can say yes or no, but if a cop says something like ‘Why do I smell marijuana here?’ you don’t have to speak. A lot of people think they only have two choices: Tell the truth or lie. But you don’t have to do either. The proper way is to shut up. Don’t talk. You don’t have to lie, and you don’t have to tell the truth. If an officer says, ‘Why won’t you talk?’ you say, ‘Because that’s what a lawyer told me to do.’ If you don’t shut up, they’re going to use what you say against you. Any college-educated person should put two and two together and know, ‘I should shut up.’ It’s not as easy as it sounds, and I know that, but that’s what you need to do. The reason you should ask for a lawyer is that the police know that they’re supposed to stop asking questions once you ask for a lawyer.
TM: Once you ask for a lawyer, then what happens?
DV: The officer has the choice of arresting you or letting you go. Often they let you go. If they do arrest you, then you at least have a defense.
TM: If a law enforcement officer stops someone in his or her car, what can the officer do without probable cause?
DV: It only requires suspicion of a law violation to stop someone. If an officer searches your vehicle without probable cause and you have not given permission, then your lawyer can argue to suppress the evidence. If the court agrees to suppress the evidence, whatever is found cannot be used against you.
TM: How does the court know who is telling the truth?
DV: What they lie about most often is that you gave them consent. If it comes down to your word or theirs on whether you gave them consent, it’s hard to argue at that point. But make them lie at least. But make note, most police officers will not lie, so do not give them consent. If a police officer does lie, the judge will eventually catch on. If week after week the judge hears people with no criminal history complaining that he went against their rights, they will know something is up. So never give permission. Dormitory rooms are just as much protected by the Fourth Amendment as a mansion on top of a hill. Your dorm room is your castle. You have all of the same rights as anyone in town. Don’t let anyone tell you otherwise; it’s not true. The university does not have legal authority to grant permission of your room, as long as you paid your rent, your room is your home.
TM: How easy is it for an officer to obtain probable cause to search a vehicle? DV: The easiest way is if he says, ‘I smell marijuana.’ If you have allowed the smell to be present in your car, it can be searched. If it doesn’t smell and the officer wants to lie, he or she can say he smelled marijuana. You can’t protect yourself against lying, but don’t help them. Don’t ever allow the smell of marijuana in your car, don’t give permission to search your vehicle, and don’t ever argue with police.
TM: Is it true that a law enforcement can lie to you, legally?
DV: Yes, and it’s important to bear that in mind. You can’t believe what they will tell you because the judges will allow them to lie to you. The biggest lie is, ‘Your buddy already confessed so you might as well too.’ Lying is a tool of law enforcement and the courts don’t care. There are some lies they can’t tell, but for the most part they can lie.
TM: How should one interact with a law enforcement officer once he or she has been stopped to try to avoid suspicion of illegal activity?
DV: Say as little as possible and be respectful.
TM: If a law enforcement officer has reasonable suspicion that one is under the influence of alcohol or drugs, what should that person do? What rights does the officer have in this situation?
DV: One, don’t talk except to say, ‘I want a lawyer.’ That’s still the same answer. Don’t make it worse. Yes, they can order you out of the car. Do not do the stupid human tricks. Do not do the walk and turn, the count backwards, recite the alphabet and all of that. Just say ‘No. No, I don’t want to do those tricks.’ There’s no penalty whatsoever for not doing that. The only thing there is a penalty for is if they arrest you and then take you to the police station.
Then, if you have no prior DUI convictions, you should take the breath test. If you refuse the real breath test (at the police station), you lose your license for a year. Not to be confused with the portable breath test. That is not valid and that is not scientifically accepted. It’s not something you should do. Don’t take the portable breath test, don’t say the alphabet, don’t do any of the roadside tricks. Don’t do the so-called ‘field sobriety tests.’ If (the officer) wants probable cause to arrest you, when you do those stupid human tricks, you’re giving him that probable cause. He’s the judge. If he wants to say you’re failing, he will claim that that is his probable cause to arrest you. They will make you think you have to do those tests and you tell them, ‘No, I don’t have to do those.’ They give you the impression you have no choice and say, ‘I’ll need you to do this,’ and their needs are interpreted as orders, but don’t do it.
The officer then has the choice to arrest you if he thinks he has probable cause or not to arrest you and say something along the lines of, ‘You go right on home.’ But it doesn’t matter. If they decide to not arrest you, you’re free to go home. Your performance on those field sobriety tests will be used against you in courts. And very rarely will you satisfy the officer during those tests. Wait until court and wait until the real breathalyzer test (at the police station). But do not argue. If you have no prior convictions, take the breathalyzer at the station because, if you don’t, you can get your license revoked for a year. If you get a second DUI conviction, you’re going to lose your license for a year regardless.
If there was truly an objective performance test, then that should determine whether you’re safe to drive. Many of these tests would be simple to do with a computer, and (they) would indicate impairment objectively, not subjectively. The most important thing is that they would include people that are impaired by other causes than alcohol. Just as many accidents are caused by fatigue as (drunk driving). But we don’t test people for fatigue. Our society, puritanical as it is, doesn’t (label) people who are tired as just as dangerous. Being drunk is sin, but being too tired means you’re working hard. To be truly worried about safety, we should test performance in a way that produces a precise record of your performance.
TM: What can one do if he or she believes that the officer does not have probable cause or has neglected his or her rights?
DV: Don’t argue and hire a good lawyer. Don’t make your argument to the police offer, make it to the judge.
TM: How does the situation change if an officer threatens to get a subpoena (a writ ordering a person to attend a court)?
DV: A subpoena is an order to come to court, but that’s not what a cop gives you. A cop gives you a summons to court. What an officer will typically give you if you’re not arrested is a summons or what we typically call a ticket. You should sign it, by the way. That’s not pleading guilty, it’s saying you will come to court. You’re not being arrested. All you’re saying is, ‘Yes, I’ll come to court.’ If an officer wants to search, for instance, your dormitory room, here’s a situation that comes up often. If a university employee says (he or she) smells marijuana and bangs on the door, do not open the door. No matter how much they huff and puff do not let that big bad wolf into your home.
TM: What’s process of getting a warrant?
DV: They have to bother a judge. They aren’t going to do that lightly. If they have to call a judge that is not at work, they will hesitate to do that. Especially if they’re saying, ‘We believe a university student has marijuana in the room.’ Don’t help them. Don’t invite them into your room and don’t give them permission to get in.
TM: In DGB’s case, how well did he handle the situation? He did not need to legally consent to have his phone searched or submit DNA, correct?
DV: Correct. I’m guessing he spoke with a lawyer first, and the lawyer said, ‘If you’re sure there’s nothing incriminating on your phone, let them because they’re going to get a warrant anyway.’ But only after you talk to a lawyer should you let them do anything.
TM: Is there anything else that you would like to add?
DV: If you see anything that says ‘Drug checkpoint ahead,’ keep driving. It’s a lie. They set up these signs. Do not, whatever … you think you need to do, take the exit before. If you just keep driving, you will never see a roadblock. It’s at the exit. I think everyone should know you can run into a DUI roadblock, but they cannot do a similar check for drugs or for any other purpose other than DUIs. There are a couple of exceptions, but no, they cannot do a drug roadblock in the way people think of it. Just keep driving in a safe manner when you see those signs. Don’t litter, don’t speed, do not fail to signal, but do not for any reason take the next exit.