Introduction

Over the past 25 years, I’ve represented in criminal matters literally dozens of Police Officers, Border Patrol Agents, Corrections Officers, and local Court Officials.

One thing I’ve learned is that these public legal officials when they are confronted by the police  make the same mistake that  most of the rest of us do.

Today, I will teach you how to behave with the police.

Coercive Environment

First, it is important to understand right from the get-go that when the police pull you over, their flashing lights are not a happy invitation but a legal command that implicates your rights. See e.g. Delaware v. Prouse.

At least for those who of us have never been arrested before, being pulled over can be panic-inducing.  And for everyone, even criminal justice professionals,  it is still at the least naturally  coercive. Everyone, almost without exception, tends to  answer the police officer’s seemingly innocent opening questions at the side window.  

Let’s take a common  scenario.   Let’s say a local DUI officer, pulls over my client, a veteran Border Patrol Agent,  as he drives out of  the parking lot of a popular Country Western club  in northwest Tucson late Saturday night.  The DUI officer  comes up to my Border Patrol Agent’s  window  and polite- as- pie asks:  “Good evening Sir, have you had anything to drink  tonight?”

Let’s say  my client answers “ No.”  If that’s not exactly the case,  his answer, usually recorded on a body worn camera, will be used against him to show that he, a federal  law enforcement official, was not truthful with the police.

If on the other hand, my client answers  truthfully “yes,” that too will be used as evidence against him.  

So, there is no good answer, except for one.

Miranda

You may ask:  But what about Miranda warnings?  Good question.  As you probably well know, in the famous case of Miranda v. Arizona  the United States Supreme Court held that when a person is (1) “in custody”  and (2) subjected to “interrogation” the Miranda warnings must be given.  If not, (3) the “incriminating responses” may be “suppressed.”

A couple things to keep in mind:  First, almost everybody when confronted by the police waives their Miranda rights and talks to the police and says all kinds of things that in the end hurt them.   Even the police themselves.  Why?  Because the natural human response to the coercive environment of a police dominated atmosphere is to be  cooperative.  

Second, most DUI officers will only Mirandize a person after they’ve been formally placed under arrest for DUI, at the end of the investigation.  Up to that point, all the standard questions—“where are you coming from?”;  “Do you have any injuries to your head, eyes or  ears?”; “Are you taking any prescription medications?” are not usually considered “custodial” for Miranda purposes. 

Rosengren

The Fifth Amendment gives you the right to remain silent.  The Sixth Amendment give you the “Right to Counsel.”  That right is tightly woven into the fabric of federal and Arizona law and jealously guarded.   Arizona Rules of Criminal Procedure Rule 6.1 provides that a suspect is entitled to the advice of counsel “as soon as feasible after [he or she] is taken into custody.” “That rule “recognizes that federal and state constitutional right to counsel.” Kunzler v. Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987). 

But  it is important to remember that in  Arizona the Right to Counsel is sometimes triggered before you are formally arrested, especially in a DUI so long as the police are detaining you in a way that your freedom of movement is substantially restricted.  

State v. Rosengren is a case that is illustrative.   199 Ariz. 112, 115 (App. Div. II 2000). In Rosengren, the defendant was involved in an accident that resulted in the death of his passenger.  199 Ariz at 115. Rosengren, prior to formal arrest, was transported in the back of a police car to St. Mary’s hospital in Tucson, and asked to speak with his father who was an out-of-state attorney.  The police denied such request. Id.  After Rosengren requested to speak with his attorney father, and police declined, police then administered a horizontal gaze nystagmus test, a type of field sobriety test.   After administering such test, police formally placed Rosengren under arrest and drew his blood. Id. 

The State indicted Rosengren for manslaughter.  Following an evidentiary hearing, the trial court found that police had violated Rosengren’s “right to consult with counsel of his choice in a situation where such would not interfere with the investigation” Id. at 115.  The trial court then suppressed the results of the blood test and the HGN test. Id. 

In affirming the trial court’s order suppressing the evidence for improper  interference with the defendant’s right to consult with counsel prior to arrest, the court in Rosengren reasoned that suppression of evidence is the appropriate remedy in part because “our supreme court has stated that when the state unnecessarily denies a defendant right to consult an attorney, any evidence obtain following this violations of defendant’s right to counsel must be suppressed.”  Id at 120 quoting Kunzler, supra, 150 Ariz. at 570; see also  State v. Holland, 147 Ariz. 453, 455, 711 P.2d 592, 594 (1985) (state may not, “without justification, prevent access between a defendant and his lawyer, if available, in person or by telephone, when such access would not unduly delay the D[U]I investigation and arrest”).

Rosengren and your Rights During a Police Encounter

So, let’s go back to the scenario where the police come up to the side window of my  Border Patrol Agent client’s  truck  and asks him: “Did you anything to drink tonight?”  If my client  answers “No” he can be viewed as a liar; if he answers “Yes,” he’s admitting something he’d rather not admit.

But what if the Border Patrol Agent or any other person, answers the standard police question:  “Have you had anything to drink?” with a polite,  “Sir, with all due respect, I’d like to speak with my lawyer”?

Based on my experience, police should honor that request and do so as soon as practicable.  Based on my experience when the police refuse to allow my client to speak with an attorney, and doing so will not unreasonably interfere with an ongoing investigation, the judge may not like that, and may in some cases throw the case out.

And you’d be surprised how many police officers delay or otherwise interfere with that right.

The Courage to Ask for a Lawyer

But in that coercive environment of a police roadside late night stop, most us think, and not entirely mistakenly, that asking for a lawyer would make the police mad or would otherwise suggest that we are guilty.  After all, why would you need a lawyer if you’ve got nothing to hide? 

So my basic advice to my clients is (1) Always be polite – Yes, Sir, No, Mam— that kind of courtesy; and (2) respectfully ask to speak with a lawyer, right away, from “Hello how are you tonight” and to do so in courteous response to each and every question.  Requesting a lawyer is the one safe answer you can give.