Practical Advice for Dealing with Police Encounters

Sooner or later, all of us are going to have to interact with the police in one way or another. It's important to understand your rights, so that you're prepared when the police come knocking. Here are the most important rights that everyone should be aware of.

1. Search Warrants

A search warrant gives the police the right to enter a specified home or business to search for certain types of evidence. It generally includes the curtilage, outbuildings or automobiles parked on the property. State v. George (1989), 45 Ohio St.3d 325, State v. Tewell (1983, Montgomery Co.), 9 Ohio App.3d 330, 460 N.E.2d 285.

Unless the warrant authorizes an unannounced entry, officer must knock and announce himself, and be denied entry before he can use force to enter but he doesn’t have to wait long for admittance, even if the occupant says they are coming to admit him. Miller v. U.S. (1958), 357 U.S. 301, 2 L.Ed.2d 1332, 78 S.Ct. 1190; State v. Furry (1971, Wood Co.), 31 Ohio App.2d 107, 60 Ohio Op,2d 196, 286 N.E.2d 301, State v. Morgan (1988, Mercer Co.), 55 Ohio App.3d 182, 563 N.E.2d 307.

There is no constitutional requirement that an officer display the warrant to an occupant or owner before entering to search. Groh v. Ramirez (2004), 540 U.S. 551, fn. 5.

While officers cannot search the person of anyone found on the premises without reasonable cause to believe they are engaged in criminal activity or pose a threat to officer safety, they can reasonably detain anyone on the premises while the warrant is executed, and may be justified in doing a limited pat down for weapons. Ybarra v. Illinois (1979), 444 U.S. 85, 62 L.Ed.2d 238, 100 S.Ct. 338, State v. Schultz (1985, Franklin Co.), 23 Ohio App.3d 133, 491 N.E.2d 735, State v. Moody (1985, Hamilton Co.), 30 Ohio App.3d 44, 506 N.E.2d 256, State v. Taylor (1992, Montgomery Co.), 82 Ohio App.3d 434, 612 N.E.2d 728.

2. Requests for Consent to Search

You have no obligation to consent to a warrantless search, but if you do, you give up any argument that the police did not have probable cause to search. State v. Crawford (1968, Hamilton Co.), 14 Ohio App.2d 41, 43 Ohio Op.2d 79, 236 N.E.2d 214.

Officers often suggest or state that they will get a warrant if you do not consent to a search. However, if the officers are sure they have probable cause for a warrant, they probably would  get one before they tipped off the occupants to their intentions.

Not every person present in a home or room is able to give lawful consent to a search. Authority or apparent authority to consent is required for valid consent. U.S. v. Roark (1994, 6th Cir.), 36 F.3d 14, State v. Denune (1992, Butler Co.), 82 Ohio App.3d 497, 612 N.E.2d 768. In addition to the owner of the home, or the legal tenant of a rented apartment or hotel room, a spouse, child or parent may have apparent authority to consent, depending on how private the area or container to be searched may be. For example, a child can consent to entry into the home, and search of any area a child might have access to. He or she may not be able to legally consent to search of the parent's bedroom, or dresser drawer. He or she probably cannot consent to a search of the mother's purse or father's wallet. State v. Scott (1980), 61 Ohio St.2d 155, 15 Ohio Op. 3d 182, 400 N.E.2d 375, U.S. v. Clutter (1990, 6th Cir.), 914 F.2d 775, State v. Gavin (1977, Cuyahoga Co.), 51 Ohio App.2d 49, 5 Ohio Op.3d 168, 365 N.E.2d 1263.

A roommate or joint tenant may consent to search of common areas, but not personal space of another. Frazier v. Cupp (1960), 394 U.S. 731, 22 L.Ed.2d 684, 80 s.Ct. 1420.

Usually a landlord, hotel clerk or casual guest cannot consent to search, but a good faith belief by officer that the person consenting has authority may be enough to allow the evidence to be used in court. State v. Paul (1993, Medina Co.), 87 Ohio App.3d 309, 622 N.E.2d 349.

Officers can’t lie about having a warrant, but can lie about their ability/intention to get one. Bumper v. North Carolina (1968), 391 U.S. 543, 20 L.Ed.2d 727, 88 S.Ct. 1788, State v. Clelland (1982, Hocking Co.), 83 Ohio App.3d 474, 615 N.E.2d 276.

Officers don’t have to identify themselves as police if invited to enter for illegal purpose i.e. to purchase drugs, but they can’t lie about their identity and ostensibly lawful purpose to gain entry and search for evidence of crime. State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St. 3d 141, 491 N.E.2d 1129, State v. Posey (1988), 40 Ohio St.3d 420, 534 N.E.2d 61.

Miranda warnings need not be given before consent is valid, even if the property owner is being detained at the time, as long as detention is valid, but evidence seized as a result of statements taken in violation of Miranda are inadmissible under Ohio Constitution. Clelland, supra, but see State v. Farris (2006), 109 Ohio St.3d 519, 2006-Ohio-3255.

3. Other Legal Justifications for a Search

In certain special circumstances the police may be able to enter and search without a warrant or consent from an authorized person. If officers are in hot pursuit, and chase a fleeing suspect into the home, they do not have to stop to get a warrant before entering to make an arrest. They can search anywhere that a person might reasonably hide, and if they make an arrest, they can check the immediate surroundings for any weapon that the suspect might have access to. Other emergencies, such as fire, or a distress call from the residence, or the need to check for a hazard such as leaking gas may justify entry. Once inside, if the officers observe contraband or evidence of a crime in plain view, they may seize it without a warrant.

4. What To Do If the Police Want to Interview You

If there is any chance that you are a suspect or target of an investigation, just say no, because an interview has little or no chance of helping you. "We just want to hear your side of the story" usually means "It’s easier to convict if we have a confession." If you are told that you cannot tell your story, or chose to cooperate after you request an attorney you should immediately ask for counsel and stop answering questions. If the police were really interested in helping you, or clearing you of suspicion, they would have no objection to an attorney being present. Attorneys routinely negotiate plea bargains involving cooperation, or take part in interviews to establish that the subject is a witness rather than a participant in the crime being investigated.

An offer of a lie detector or voice stress test is another way of obtaining a confession. The tests are not reliable, and won’t be admissible in court without a written agreement in advance, but it’s a great way to separate you from your attorney during interrogation, and frighten you into confessing, or making statements that can be used against you later. If you need to cooperate, or want to tell your story, your attorney should be present at any encounter, and insist on a record of everything that is said, so your words aren't twisted or misinterpreted.

Don’t equivocate when invoking a right. "I think I should talk to an attorney" "Do you think I need counsel?" "I’ll talk when my attorney gets here" have all been held insufficient to prevent further interrogation. The same is true of the right to silence. Demand your rights, then refuse to speak until you get them. State v. Jackson (2006), 107 Ohio St.3d 300, Davis v. U.S. (1994), 512 U.S. 452.

Never say anything that isn't recorded or written by you. A statement is admissible even if you refused to sign it or to sign the rights waiver, and even if it is oral and unrecorded. Defendants usually lose a swearing contest with police officers, so making unrecorded statements simply gives the police a chance to distort what you say.

5. What to Do If You Find Yourself in Jail

Don’t talk facts over the phone, it’s usually recorded and often overheard. Never discuss your case with other inmates--they may be looking for a way to improve their own position by gathering information for the state. Never make any statements or answer any questions until your attorney can be present. Never waive your rights without speaking to an attorney. Know  how to unequivocally invoke those rights, and be firm in repeating your demand for questioning to stop and to see an attorney before you speak to anyone.

Except for minor cases, you will probably not have a bond set until you appear before a judge for arraignment. Getting out on bond is not more important than making sure you have the best possible chance for a favorable outcome in your case. Make sure you understand the situation and have competent counsel before using all your resources on bond. There are times when posting bond immediately may actually hurt your case, or cost your family money without getting you released. If you are already on parole or probation when arrested, for example, posting bond quickly may result in a call to your parole or probation officer to get a violation filed and keep you locked up.

Understand that arraignment isn’t a trial. Don’t get into the facts unless they are specifically relevant to bond. (I'm innocent/unjustly accused/getting ready to sue the police for misconduct–are not generally relevant. I turned myself in, cooperated in the investigation, have a steady job, and have no prior contacts with the criminal justice system–generally are). Be careful what you ask for. "Reasonable bond" means different things to different people–be specific, and realistic, in your request. If the charge is serious, or your record is bad, asking for release on your own recognizance isn't practical. The judge won't do it, and won't listen any further if he feels you aren't taking matters seriously. If bond may be a problem, you and your attorney may offer conditions that provide a comfort level to the judge–electronic monitoring, random drug screens, agreement to protective orders, voluntary entry into a residential treatment program/group home or psychiatric facility. Demanding to know what cause the officers had for arrest, may mean "do you have any more horrendous facts to tell the judge who is about to set my bond?" These issues can still be raised once bond has been posted.

6. What to Do If You Receive a Grand Jury Subpoena

Determine whether you are a witness or a target/potential target of the investigation–neither the prosecutor nor you can give your attorney a definitive answer, since both know things the other doesn’t. You need an attorney because the prosecutor and police will tell him things they won't tell you. Determine whether any privilege attaches to the testimony or documents sought. There are constitutional and legal protections for certain types of conversations and documents. You need counsel to determine whether any of these apply to your testimony. If you are a potential target, determine whether an offer of immunity will be made, or whether a specific bargain is available for cooperation.

Prepare with your attorney--be sure you know how to unequivocally invoke your rights, and how to consult with counsel when you need to. Your attorney cannot enter the grand jury room with you, but you have the right to ask to consult with him, and leave the room for that purpose.

• The content of this article is provided for informational purposes. Always seek competent legal counsel for any criminal matter. Click here to talk to Elizabeth Agar, or a Criminal Lawyer near you.