Had you asked me years ago what type of lawyer I wanted to be, I surely would have said something like “corporate” or “tax,” but I realized early in my legal career that my passion lay more in the criminal courtroom than the civil. Not that I don’t love the other aspects of the law, but I truly enjoy the process of deconstructing an arrest and investigation and then looking to see which piece of the puzzle doesn’t fit, because with criminal law, sometimes when one puzzle piece doesn’t fit, you have to trash the whole thing. This is because our forefathers set up our Constitution in an attempt to ensure that everyone involved in the prosecutorial process had to do his or her job correctly and thoroughly in order to convict someone. We don’t take revoking a person’s freedom lightly in this country, or at least that’s how it is supposed to be.
I see many problems with arrests and investigations, but the most common problem I encounter is that many defendants simply do not know their rights. I recently represented a young man who was facing drug charges; not large quantities of drugs, just a petty amount, but enough to amount to felony charges. After looking over the documents given to me by the State, I saw no reason for his vehicle to have been searched—except that he gave full consent. I called him in to my office and placed the documents in front of him, and then I asked him one simple question: Why did you consent to this search? He didn’t really answer at first; he just got a strange look on his face and gave me an odd look. “You mean I didn’t have to?” he asked.
“No,” I replied. “You have the right to say ‘no’.”
Let’s compare this scenario to another drug client I had a few weeks prior. This particular lady adamantly told the police officer attempting to search her vehicle that she wanted to assert her right not to be searched. She was searched anyway, which is not unusual. Many officers will test the limits in the hopes that your lawyer will overlook the illegal search, or that you won’t have a lawyer at all. However, I was able to have all the evidence in this case suppressed, and as a result, the State dismissed the case because without the illegally-obtained marijuana, there was no evidence to present in court.
At first, I found it hard to imagine a world in which people didn’t know they could say no to a vehicle search. We all grew up watching “Law & Order,” right? When I ask people how they didn’t know this, I usually get answers like, “I saw that on t.v. once, but I thought it was just a make-believe show,” or “I was nervous and I freaked out.” Don’t misunderstand, though. Not all searches are illegal. Can they see something in plain sight? If so, they can search the vehicle. However, they may be lying about what they “see.” Go ahead and assert your rights, then let the search happen. Arguing with a police officer will do you more harm than good, and possibly get you injured or worse. But if you don’t try, I don’t have as much to work with when the case hits my desk. There may be other fatal errors, but the search will likely stand if you gave informed consent.
Be aware that officers DO have the right to secure the scene with what we know of as a Terry search, or Terry frisk. The officers are allowed to pat down your outer layer of clothing to look for weapons. This is not a free-for-all, mind you. It has a limited purpose and is for keeping everyone safe during the remainder of the encounter. A good attorney will know where the line here should have been drawn, and can assist you with what was and was not properly obtained during a Terry search.
The best way to handle this scenario is to assert your rights, and say NOTHING else. Remember you have the right to remain silent. Use it. When you come to interview with me, the only other thing I want to find out you said to law enforcement is “I want a lawyer.” But that’s a topic for another day.