Please accept this information as general tips and guidance. Every situation is different. This is not legal advice and no attorney-client relationship exists as a result of visiting this page.If you are in need of a Lake Tahoe Criminal Defense Attorney or have any further questions please contact The Law Office of Adam T. Spicer at (530) 539-4130 to arrange a confidential meeting.
First, never physically resist the police. If they are acting inappropriately, a lawyer will handle the matter after the fact in court. Resisting will only cause you more problems. You can be cooperative (and even polite) while still protecting and asserting your rights.
California Penal Code Section 148(a)(1) is a misdemeanor for resisting arrest. This offense encompasses resisting, delaying, obstructing, interfering, etc. And it applies to police, fire fighters, ambulance drivers and other emergency personnel. This charge is a favorite of police and district attorneys, so do not give them a reason to charge you.
Always ask if you are free to leave. If your home or car is involved, try to speak outside and shut the door behind you. You must give an officer your name and/or identification if they ask for it. Never consent to a search and never speak about facts or events without an attorney.
When dealing with the police or government investigators you have constitutional protections. You are protected by the Fourth, Fifth, Sixth, Eight and Fourteenth Amendments.
Make sure you never consent to anything or you may be giving up your constitutional protections.
Talking to the Police
You should not talk to the police or government investigators without an attorney present. You have a Fifth Amendment right to remain silent and to have an attorney present when the police have you in custody and are interrogating you. If you are charged with a crime, the Sixth Amendment also gives you the right to an attorney.
Both of these rights can be waived and there are exceptions as well. That is why you should never speak with police until you have an attorney present.
Search (with a warrant)
A warrant is essentially permission from a judge to search. If police have a search warrant they will conduct the search. A lawyer may be able to challenge the validity of the warrant or the execution of the search, but resisting will not help your case.
In order for police to obtain a warrant they must present facts to a judge that shows they have probable cause to search. The police must describe the place to be searched and the items to be seized and they must sign an oath under penalty of perjury that the facts are true.
Generally, a search of a home would be during the day and the police would knock and announce their presence. However, in some circumstances, police will search a home at night or break a door without knocking first. They try to justify that action with concern for officer safety or possible destruction of evidence.
Search (without a warrant)
In order for police to search you without a search warrant they must have probable cause. That means the facts and circumstances within the officer’s knowledge must be sufficient to cause a person of reasonable caution to believe that evidence subject to seizure will be found in the place to be searched. This vague judicial definition is not very helpful for defining probable cause. If the police search you without a warrant it will be the job of your attorney to convince the judge that the police did not have probable cause.
The requirement that an officer have probable cause is subject to waiver and many exceptions. This right is waived if you consent to the search. Never consent to a search of your person, vehicle, home or property. If you do, you have waived your rights. Tell the police, “I do not consent and I object to this search.”
Common exceptions where police may not need a warrant or probable cause to search include exigent circumstances, searches incident to arrest, containers in vehicles, inventory searches, plain view (plain senses!), school discipline, airports and borders.
Police need a warrant or probable cause to make an arrest. However, they do not need a warrant to arrest a felon in public.
Police generally need a warrant to enter a home to make an arrest. They will, however, chase a fleeing felon into a home or enter and try to justify that by risk of harm or destruction of evidence.
If you are arrested, maintain your rights and do not consent to anything.
Brief Detentions and Pat Down Searches
Police may make a brief investigatory stop if they have reasonable suspicion. This is less than probable cause. Police should have some specific facts that a crime has taken place or may take place. In other words, they must have more than just a hunch.
During this stop, police may ask for your name or identification and you must provide that. You do not have to answer any questions.
An officer may make a pat down search for weapons. Courts allow police to do this out of concern for their safety. That is why this pat down is supposed to be limited to a search for weapons. Police will claim they felt other illegal contraband during the pat down and try to use that against you. This is for your lawyer to argue in court.