Common Client Mistakes: Speaking to Police
Interviewer: How about in terms of dealing with the police – do you see that people talk too much because they think that they can talk their way out of situations and it just ends up hurting them?
Ben Kelsen: There is a fine balance between being cooperative and then giving too much information. It is always better to cooperate on the scene to some extent rather than be obstinate. You should always be respectful of a police officer when dealing with a police officer. Never be disrespectful, rude, obstinate, or act in any other type of an objectionable manner. That doesn’t mean that you have to give up your rights. So when a police officer comes up to you and says, “Hey, were you smoking pot?” – I’m not sure that the best idea in the world is to say, “Yes, I was smoking pot about five seconds ago and I just tossed it out the window.” That could get you into further trouble. Under certain circumstances it may be better to turn the drugs in a car over to the police officer or it may be, depending on the situation, better to ask for an attorney and refuse. The majority of the time the officers are going to be able to get a warrant anyway so you may be helping yourself by simply giving it to them and cooperating.
When people do go do that stuff on the side of the road on traffic stops, one thing that I do find frequently is that when people are in the police station and the police tell them that just want to “just talk,” just because of formality they have to read them their Miranda Rights, so then people start talking and talking and they get themselves into a lot of trouble, and that is something that was done after Miranda Rights were read. So if that is the case, in those types of cases I would normally suggest that if somebody is going to be reading you your Miranda Rights, you should ask for an attorney.
The police usually don’t take it personally when you tell them, “Listen, if you are talking to me because you want to get some background or something that’s fine but I can’t talk to you on the record without having an attorney present.” People do not realize that most of the time people go through life without ever being asked to come to speak to the police at the police station. If a police officer is asking you to come in to talk to them about something, it is not because they are just interested in talking to you; there is something going on. You may be the victim of something and they want to interview you, right? But if you know that you’re not the victim of something, it is probably a good idea to consult with an attorney before going into the police station.
Interviewer: I was going to ask you, how often does that happen when the police say, “Hey, we just want you to come and talk to us; you’re not under arrest”? You know, that kind of thing – how frequent is that?
Ben Kelsen: Very frequently.
Interviewer: What if you say, “I’m not comfortable; I want my attorney to be with me,” and they say, “Well, if you don’t come we are going to come and get you and arrest you”? What do you do?
Ben Kelsen: At that point I would start making phone calls to get an attorney and you can work out to turn yourself in or to kind of show up with you attorney and say, “Listen, I had to call an attorney so can we meet up later this week?”
Generally speaking, if something were an emergency situation they would not be asking you to come in. So if they’re calling you and saying, “We’re stopping by,” and saying, “We’d like to set up a time to talk with you,” right then you can usually get a day or two or a few days or even a week to be able to set up a time to come in because it is not something which is of an emergent nature. When the police think that something is emergent and needs to be dealt with immediately, they are not asking you to come in – they are coming to arrest you.