Part 3: Your Reasons for Talking to Police are Dumb.

In the first two parts of this series, we've established that it is unwise to make a statement to police who suspect you of a crime.  We've also covered why, despite knowing this to be true, people make those statements anyway. You may want to go back and read those articles before continuing on with this one.

1. They already think you're guilty.

If you are being interrogated by police officers who suspect you committed the particular crime they are investigating, you likely already appear guilty to them. Otherwise, why are you there? But, whether you appear guilty or innocent to the investigating officers isn't really the most important factor to consider. The police do not charge you with a crime, prosecutors do. So, in the long run it doesn't matter how you appear to the officer.

Its true. The only thing that matters is what the prosecutor can prove.  If he or she can prove that you more likely than not committed the crime for which you are being interrogated, you will be charged. Thus, the police interrogation has one purpose and one purpose only: To get you to provide evidence that the prosecutor can use to later charge, and convict you of the crime. When you voluntarily make a statement or allow yourself to be interviewed, you are helping the prosecutor do just that.

2. You're not smarter than the cops.

When you're being interrogated by the police, whether you come out of that room in an orange jumper or your street clothes has as to do with much more than your intelligence. You will be in a room for hours and hours with many different officers all highly trained to do one thing: Get you to talk.  They have taken classes and seminars and put in hours and hours of work in the field to be good at this one thing. But, sure, you passed your drivers exam on the first try so I'm sure you'll be good. See you in 10 to 20 years, brother. It's this mindset that causes innocent people to confess to crimes they did not commit every day.

3. You will not get out of jail sooner, and you might be staying long term.

By making a statement, you are not increasing your odds of being home for dinner. All you are doing is increasing your odds of being convicted and staying in jail long-term. A very long, long term. You are sacrificing your end-game odds of avoiding prison in the long-term by taking a very poor bet that you'll be out sooner in the short-term.

Remember, prison is a long-term proposition.  When you are suspected by police of a crime, everything you should do from that point forward must be done for the purposes putting you in the best possible position to win your case and avoiding jail altogether.  This means you might spend an uncomfortable 24 hours in jail without making a statement. Or it might mean that you are charged with the crime anyway and expected to make bail in a couple weeks. Remember, it's better to not make a statement and suffer for a very short period of time on the front end of all of this rather than make a statement causing your conviction on the back end.


4. That Cop is not going to talk to the judge on your behalf. 

The easiest way for the prosecutor to make her case against you is for you to confess.  While innocent people confess every day, the simple fact is that you will have an uphill battle trying to convince your jury that you are one of those people. Officers know it. Prosecutors know it. That is why they will try for hours and hours to get your statement. A confession on the front end of an investigation makes their lives easier and your conviction more probable on the back end.

So, no. This officer is not going to put in a good word for you with the judge because you talked. And no, this officer is not going to ask the prosecutor to go easy on you because you took responsibility.

And if you're worried about people "thinking you're a monster", worry not. That officer already thinks you're a monster because, in his mind, you are guilty. Its not as though he's going to go on his next donut break and think, "You know..that guy murdered someone. But at least he waived his right to remain silent and confessed to it. He's not a monster after all."

And again, it does not matter what that officer thinks of you. (See #1). Hell, nothing anyone thinks of you for remaining silent is worth convicting yourself by talking to police interrogators.

5. Do not talk just because you do not know how to invoke your rights.

When people actually do invoke their rights to remain silent or to have an attorney, they aren't sure what it means. This is no accident as courts have been trying since the Miranda decision to clearly adjudicate just what it means for someone to invoke their rights.  You know that you HAVE the right to remain silent, but how do you invoke that right? You know you HAVE the right to an attorney, but how do you get one?

I've you've stopped reading because you think the simple answer is that you remain silent by REMAINING SILENT and you get an attorney simply by ASKING FOR AN ATTORNEY, you'd be right. However, it's not that simple.

When you say you'd like to remain silent, the officer will ask, "Are you sure? Cause I can't help you if you wont talk to me." And then you'll think, well, I'd like some help. And you ask him a question. And another question. And next thing you know you're talking to him. And next thing you know after that is that you've now waived the right to remain silent that you initially, smartly, invoked at the beginning without even knowing you did it.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

Part 2: Why Do You Talk to Cops Who Suspect You of a Crime?

Previously: Part 1: Talking to Police. A Sucker's Bet.

As noted in the introductory post to this series, it is widely known that talking to the cops is a bad idea when you are the suspect of an alleged crime. Yet, day after day people march themselves to their neighborhood precinct at the behest of their local constabulary to spill their guts.

Is this you? If not, then shut your trap.

If you are planning to do the same, ask yourself, "Am I Keyser Söze?" If the answer is "no", then you should probably reconsider your plan.*

Which begs the question, if it's so obvious that you shouldn't talk to the cops when they suspect you of a crime, why are so many  people not named Keyser Söze constantly spilling their guts to the police?

5 Reasons You Voluntarily Talk to Cops who Suspect you of a Crime
  
1. You do not want to appear guilty.

Whether you did it or didn't do it, at the very beginning you understandably do not want to do anything to APPEAR guilty. You worry that, if you refuse to talk to the police officer wanting to interrogate you, that officer will assume that you are guilty. Otherwise, why wouldn't you talk? What do you have to hide? And if you weren't already sure whether that officer feels that way, they will surely leave no doubt by asking you those very same questions when you politely decline to comment.

2. You think you are smarter than the cops.

You've got your story straight, right? You rehearsed it the whole way down to the police station. It's easy: W, then X, then Y, then Z. All you have to do now is spit it out just like you rehearsed and you'll be home before dinner....right? Wrong. What happens when the officer asks you about shark? Wait, what? Shark? Uh oh...

3. You want to get out of jail sooner rather than later.

Many times when you are being questioned by authorities who accuse you of a crime, you are on what is called a "24 hour hold".  A 24 hour hold is exactly what it sounds like - the police can hold you for up to 24 hours while they investigate the crime. In short, get comfortable.

But who has 24 hours to just hang out at the station? There are jobs to work, kids to rear, and Netflix originals to binge. And if you don't talk, they might just file the case with what they have and hold you for days/weeks/months. So, you think if you just talk to the police and give them your side of the story, they'll certainly believe in your innocence and you'll be home by dinner. Get that pesky felony thingy allllll cleared up,

4. You believe the false promises made to you by the police interrogator.

Officer's want you to talk. Many times they NEED you to talk. Your confession could be the difference between an unsolved case and a guilty verdict, or a hard fought acquittal at trial and guilty plea down the road. This desire to get a confession leads to empty promises. They sound like this, "I can help you with the prosecutor if you're just honest with me". "It'll look much better for you later in court if you admit you're guilty to me right now". "Your family, friends and community will think you're a monster if you don't take responsibility - I can help you prevent that".  Suddenly, you exist in a world where you believe the future of your reality is a binary choice between being a monster or non-monster. It is easy to start talking to prevent monster-hood.

5. You misunderstand your rights under the law.

Before any interrogation, you will likely sign a "Waiver of Rights" form that will be read to you by the police. Despite signing the form, people misunderstand these rights. They know they have a right to remain silent and a right to have an attorney present, they just don't understand that invoking those rights is not an admission of guilt in and of itself. They think guilt will be inferred by the courts when they ask for an attorney or decide to remain silent or that doing so loses them the presumption of innocence.

*If you don't know who Keyser Söze is, just get off my blog right now, you animal. 

Coming Up:

Next week I will write about how all of these reasons for talking are dumb in Part 3: Your Reasons for Talking are Dumb.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

Part 1: Talking to Police - A Sucker's Bet.

When you are accused of a crime, or the police suspect you of a crime, one of the first things they will do is "just try to get you to answer a few questions". Sounds simple enough, but your answers to those few questions are likely going to land you in a legal mess. And by "legal mess", I mean sharing a 6x8 cell with some dude named Clarence for the foreseeable future. That is why any criminal defense attorney worth his weight in mahogany will tell you to keep your mouth shut!

Lamp probably not from Pottery Barn.

But here's the thing - if the answer is so clearly to just shut your trap, why do so many people willingly subject themselves to police interrogations? I mean, luckily for the people who manufacture those weirdly hot, hangy-down overhead lights found only in interrogation rooms they do. But unluckily for the next innocent person who walks into the station to falsely confess to a crime they did not commit, there is still so much confusion on this issue.

No joke - as a criminal defense lawyer, the question I get asked the most other than "how do you defend THOSE people" is "Should I cooperate with police?" After all, they are the police. Right? Sworn to protect and serve.

Cooperate? Yes. Always obey commands and follow orders. But give a statement after being held for 12 hours without sleep, food, air conditioning (or heat) or a lawyer? Absolutely not. Knowing your rights when subjected to a custodial interrogation is not being uncooperative or anti-police. Neither is invoking the rights granted to you by the Constitution of the United States when your liberty is at stake.

In this space I attempt to answer the most common questions people have about whether they should give a statement to police, why the answer to that question is almost always no, and what the consequences of either decision might be.

Next Up

Part 2: Why do you talk to police who suspect you of a crime?

Caveat: If you or someone you know is currently a suspected of a crime and police want to talk, stop reading this blog and contact a criminal defense attorney right away to help you. As always, the words on this blog are no substitute for particularized advice from an actual attorney about your specific legal circumstances.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

What does it mean to have your traffic ticket "fixed"?

Unless you're Miss Daisy and you have an ageless Morgan Freeman to drive you from place to place, statistics say you will at some point in your life be stopped and ticketed for a moving violation. Failure to yield, speeding, improper left turn, all the old favorites.

When this happens, its ridiculously annoying. I mean, that cop has to have something better to do, right?

Instead of just paying the fine and taking points on your license, in most cases it's probably better to pay a lawyer to "fix" the ticket. So what does it mean to have your ticket "fixed" by a lawyer?

First, it DOES NOT mean that your ticket is automatically dismissed once you pay the lawyer. Sure, there are times your tickets can be dismissed, but that is rare. So no, paying $100 to some massive, bulk traffic law firm will not be the end of the pain in your rear that is this traffic ticket.

What it DOES mean, however, is that your lawyer will get the prosecutor to amend your speeding ticket to a non-moving violation. Usually littering or illegal parking. By having your ticket amended, you will avoid having points added to your license by the Department of Revenue. This is important because once you accumulate too many points on your license, your car insurance rates go up and you risk losing your license.

Sounds painless, right? Wrong.

In exchange for that amended violation, you will often pay a much heftier fine plus court costs. Some people are forced to pay the court as much as $300 in fines and court costs depending on the circumstances of their traffic violation! Ridiculous. Add to that the $100 (per ticket, of course) you will pay the lawyer you hired to get the ticket amended, and now your "failure to yield" will result in your failure to eat anything but Ramen for the next month because you're broke.

How do you know if you need to hire a lawyer for your traffic tickets? Here are a few guidelines you can follow:

1. Make sure your ticket is actually a moving violation and determine how many points on your license it could lead to. You can find a list of moving violations and their point values on the DOR website here. 
2. Determine how many points are already on your license. If you're getting close to accumulating enough points to where your license will be revoked, you should probably hire a lawyer to prevent more points.
3. Check with your insurance company to see how accumulating traffic points would affect your insurance rates.
4. Was there an accident? Was someone injured or worse? Always get a lawyer when there is an accident resulting in property damage or bodily injury as the results on your ticket could expose you to future civil liability over the accident.

As always, every case is different so the best advice I can give you as to whether you need your ticket fixed would be to take advantage of a free consultation offered by a lawyer in your area to determine if you need to hire an attorney to fix your tickets. I happen to know a good one.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

Probation Violations: How to Win your Hearing and Stay out of Prison.

During the 2014 fiscal year, the Missouri Department of Probation and Parole supervised a total of 45,867 people on probation. As you can imagine, of that 45,867, not everyone is successful on supervision. If you are one of the unfortunate ones who has had a small hiccup while on probation and are now facing an angry judge and prosecutor looking to put you in prison, continue reading for some tips on how to win your probation violation hearing and stay out of prison.

As with Tinder, you want the Judge to swipe right...

First, what it means to "win" your probation violation can take many forms. At a probation violation hearing, a judge essentially makes two determinations: 1.) Did you, in fact, violate the terms of your probation? and 2.) If so, what punishment should you face as a result. That's it.

So, it follows the most obvious way to win your probation violation hearing is to convince the judge the answer to question number 1 is "no". Has it happened? Sure. Is it likely? Nope. Why? Opinions differ, but that is probably a topic for another post.

If you have little hope of convincing the judge that you did not violate the terms of probation, how do you still "win"? Well, you win by staying on probation and out of prison.  Since every probationer, judge, probation officer, and prosecutor are different, the way you go about getting this result varies.

Here are 5 general strategies you should follow to put yourself in the best possible position to avoid having the judge exchange your probation for a one-way bus pass to the Department of Corrections:

1. Fix the Violations that can be Fixed. 
   
   In the most basic terms, to "fix" the violation means to go do the thing that the judge ordered you to do in the first place prior to your probation violation hearing.  Examples? Examples: If you owed $1,200 in restitution for the TV you stole and pawned, find a way to pay that money. If the judge ordered you to do 100 hours of community service but as of this date you have done 4 hours, you need to do 96 hours as soon as possible.  You get the idea.
    
2. Work to Address your Failings.
   
   Obviously, not every probation violation can be fixed.  If you tested positive for meth on a routine probation urinalysis test, you cannot go back in time and make that test negative. Unless you have a time machine - in which case I would advise you to go back in time and not commit the offense for which you are on probation in the first place.  Also, get rich by betting on sports. You should do that too.
   
   But, in this non-time machine scenario, your only option is to show the judge that you are working to fix your problem.  Did you drop dirty? Go to treatment. Attend 2 NA meetings every week. Voluntarily take drug tests and pile up a bunch of clean tests.  Whatever you have to do to convince the judge that, while you messed up, you are working your tail off to better yourself.
3. Make a Positive Contribution to Society.
   
   The end game for any probation violation hearing is the judge's decision of whether to throw you in prison or not.  The math of that decision is actually pretty simple: Is the community better off with you in prison? Or is it better of with you in the community.  
   
   If at the time of your probation violation your greatest contribution to the community is that you've mastered Call of Duty while sitting on your mom's couch, you're in trouble.  But, if you are spending your time at a job, taking care of your children, and volunteering in the community, you just might have a shot!
   
   
4. Don't Hang Out With Criminals
   
   My uncle used to say "If you're with the crowd, you are the crowd."  If your name continually pops up on their magic little computer as an associate of other criminals while your probation violation case is pending, the prosecutor and probation officer will no doubt group you in with that crowd. Not ideal. Instead, put yourself in a position where your lawyer can go into court and show the judge, prosecutor and probation officer that you are NOT that crowd.  That you're trying. That you're different than those other people that come in here with violations.  Most importantly, that you deserve to stay on probation and out of prison.
5. Seek Out Quality Mentors
   
   Your prospects of staying out of prison increase greatly when you have someone in the community come into court and vouch for you.  A pastor. A small-business owner. The leader of a non-profit. Whomever. Surround yourself with these people and work your ass off impress them.  Prove to them that you are worthy of staying in the community, and they will help you prove it to the judge by vouching for you in court.

If you are on probation and the prosecutor has filed a motion to revoke that probation, don't panic. So long as you are breathing non-prison air, you have a chance to improve your situation.  Doing the 5 things above will almost certainly increase your odds of staying out of prison.  Obviously, if you have questions or need advice on your particular case, I'd love to talk to you about it.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

On Hugs and Crossing that Line

During the protests in Charlotte this week, this man made the news for giving free hugs. To police officers. Suited up in riot gear. In front of his boys, too!

What's this have to do with criminal defense?  Here it is:

This man crossed that line. The line separating protester and police and he did it to show kindness and compassion to the latter. In doing so, he took a lot of heat from some of his fellow protesters. "How do you hug those people?" or "Don't you know those people are bad for society?". He had to know those criticisms would be coming, but he did it anyway.  Why? I suppose because he thought it might do some good in a world too quick to label one cause good, and another evil.

As a criminal defense attorney, we also cross a line of sorts every day. We cross the line into court rooms, jail cells and crime scenes with compassion and a determination to defend those who society has marked for separation.  In doing so, we take heat from our neighbors, friends, and 3rd cousins we don't like very much anyway.  "How do you defend THOSE people?" they ask incredulously. Or, "I could never defend someone who I know is guilty." they state unequivocally. We know those questions are inevitable.

But we do this work anyway. Hopefully it does some good in a justice system intent on prematurely labeling one person good, and another evil.

Finding the Smelly Fish: Pre-Arrest Police Investigative Detentions

As everyone knows, Police officers investigate crimes and those suspected of committing them.  They determine who the bad guys are and they bring those bad guys to justice. But how do they determine who the bad guys are when it is not obvious that a crime is being, or has been committed? How does a police officer look into something that they think smells fishy without making a full on arrest? Since people don't usually wear shirts that boldly say "I'm a bad guy committing a crime", police often must detain those they suspect of criminal activity to further investigate.

A pre-arrest detention is a term I use to refer to an interaction between you and a police officer wherein the officer has stopped you to further investigate activity deemed suspicious. In other words, they think something fishy is going on and want to look deeper. But can an officer really detain you in any way without first having probable cause to arrest you? Yes. Yes they can.

These pre-arrest, pre-probable cause, what is making that fish smell type interactions really come in two flavors:

1. Consensual Encounter

The first pre-arrest detention is actually not legally a detention at all. It is an interaction between a citizen and an officer that is consensual on the part of the citizen. What does this mean?

It means that, as long as the officer has the right to be in the physical location where the encounter occurs, they apply no physical force or make no show of force to effectuate the encounter and a reasonable person in your position would feel free to disregard them and go about your business they can talk to you about anything under the sun. Courts have held that, even when an officer is in uniform with their gun in its holster and an active radio active on their shoulder, this sort of casual encounter is not a detention for 4th Amendment purposes.

So, who cares? You should. So long as your interaction with an officer remains a casual encounter, your 4th Amendment right against unreasonable search and seizure does not apply.

Suppose you are standing in line at a Walgreens in front of a uniformed police officer about to buy some cold medicine.  The officer asks you what the cold medicine is for and you blurt out that the cold medicine is for your Meth kitchen.

At your future trial for the attempted manufacturing of Meth, that statement would be used against you. This detention was a casual encounter because the officer had a right to be in the Walgreens and you were free to leave at any point.  You are afforded no 4th Amendment protections here because you are not seized under the law.

Moral of the story: If a cop casually asks you what the cold medicine is for, the answer should always unequivocally be "for a cold".

2. Investigative Detention, i.e. the Terry Stop

An investigative detention occurs when police stop you because they suspect that you are involved in criminal activity and they detain you so that they can investigate.

A Terry Stop is more intrusive than a consensual encounter because you are seized. How do you know you have been seized? When you or any other reasonable human in your shoes would not feel free to leave because the officer has physically restrained you or ordered you to stay put. Once this happens, unlike consensual encounters, your 4th Amendment right to be free from unreasonable searches and seizures attach!

What makes a Terry Stop reasonable? To be reasonable, the officer initiating the stop must have reasonable suspicion based upon articulable facts that you are involved in criminal activity.  Just what level of suspicion is, or is not, reasonable has been defined and re-defined by state and federal courts across this land. We know it is something less than probable cause, but something more than an officer's hunch. Once a Terry Stop is initiated, the officer may pat you down for weapons and detain you for as long as necessary to confirm or dispel their suspicion.

Refer to the Walgreens scenario above, only this time imagine that, instead of outing your Meth production business, you pay for the cold medicine and go into the bathroom.  The officer follows you into the bathroom, shows you his badge, identifies himself as an officer, and orders you out of the bathroom for questioning. Once outside of the bathroom, the officer sees a bulge in your coat pocket so he pats you down for weapons only to find a rather large baggie of methamphetamine instead.

In this scenario, your 4th Amendment rights attach the minute he confronts you in the bathroom, shows his authority as an officer and orders you outside for questioning because a reasonable person in your position would not feel free to leave. As such, the officer would need reasonable suspicion based on articulable facts that you were involved in criminal activity at the time he confronted you for the detention to be reasonable.  If the detention was reasonable, the baggie of Meth he finds would not be suppressed and could be used against you at trial. If it was unreasonable, they would.

Based only on the facts I have given you in this example, that officer likely did not have suspicion that was reasonable. But, police officers aren't dumb. They know some criminal defense attorney like myself will later be scrutinizing the reasonableness of their suspicion and so the facts are not usually this straight forward. If the officer testifies that he was suspicion because you fit the description of a known Meth manufacturer, that you were sweating bullets in December out of nervousness, that this particular Walgreens was in an area known for its Meth manufuacturing problem, and that he called in to the state pseudoephedrin registry and discovered you bought excessive amounts of pseudoephedrin in the preceding month, a judge would find his suspicion was reasonable.

If you or someone you know has been arrested for a crime that arose from a pre-arrest investigative detention, contact a criminal defense attorney to determine if the particular facts and circumstances surrounding your seizure were legal under the 4th Amendment.

Free Criminal Defense Information

As a criminal defense attorney, I field questions about Criminal Defense and DWI law everyday from clients, other lawyers, friends, family and tire kickers looking for free legal information.

The law in this country is weird.  On the one hand, if the law exists on the books, you as a citizen are deemed to have notice of that law and are required not to break it.  But if that is true, why do people like myself need to spend 3 years and hundreds of thousands of dollars just to understand and correctly apply it?  Have you ever tried to read a statute? It's like a different language.  Even worse, ever tried to buy the book in which the statutes are written? Unless you've taken out a second mortgage, probably not.

If the law expects every day people to just know it, then I believe it should be accessible.  With this blog, I will do what many in this profession think to be unforgivable - give away legal knowledge.*  Lawyers don't own the law, the people do.  So, when I come across a topic relevant to criminal defense that I feel may be of interest to the people, I will give my two cents on it here.  For everyone to see.

*Keep in mind, while the content I provide here is meant to be informative, no criminal defense blog can substitute talking to a real criminal defense attorney about your specific case.