Welcome back to Ask a Lawyer, wherein I, a lawyer, respond to your questions. Got a vexing legal issue? Send it over, or drop it in the comments below.
A couple months ago, I was walking to a restaurant with a friend when out of nowhere, two cops tackle him to the ground and put him in cuffs. They did the reading-the-rights thing (as far as I could tell), but wouldn’t tell him what he was being arrested for. The cops also made him unlock his iPhone and they scrolled through his texts and maybe opened a few other apps. He was taken away to jail and released a few hours later - turns out he was the doppelgänger of someone who was involved in a drug bust of some kind a couple blocks away. Does he have any recourse against the police for wrongful arrest? It also got me thinking, what should you do when you’re getting arrested?
It wouldn’t be a week at Ask a Lawyer without getting an arrest question. Today I’m outlining some do’s and don’ts when find yourself afoul of the cops, whether you’re guilty or not. As with all Ask a Lawyer pieces, laws vary by jurisdiction in the U.S.—and, of course, you should get a lawyer in real life, not just read about it on the internet, if you’re arrested.
Don’t Panic
Congratulations on your arrest, citizen! You’ve embarked on a soul-nourishing and eye-opening path to personal growth and spiritual enrichment.
First, don’t fight against handcuffs or anyone restraining you—it’s just going to be uncomfortable. If you do somehow manage to escape, you’re not going to go far and it’ll level you up to an exponentially larger teaching moment. Next when you can get half a minute, do something that’s going to calm you down, because you’re going to need your wits about you. A quick round of controlled breathing can do the trick.
Follow directions. Be polite. Don’t scream “this was all a huge mix-up!” Don’t be an asshole, especially if you’re an asshole. If you’re a political protester getting arrested, by all means, call out for a legal observer that may be standing by.
Don’t touch the cops. Touching a cop during an arrest is like touching an Operation game board when you’re trying extract the funny bone: You lose.
Finally, keep mental notes on everything. Officers’ names. Who else is getting arrested. Potential witnesses. Whether you’ve been notified of your Miranda rights. Anything that could be useful or stick out as unusual. This may go by as a blur to you—especially if you’re stuck in the wrong place at the wrong time—so do your best to remember what you can.
Shut Up
Now that you’re clearly a respectful and compliant arrestee, this is pretty much the one job you have: shut your mouth. What do you do after that? Keep it shut. And when you’re tempted to speak, just don’t. Also, don’t sign any documents they give you.
You probably know that you have a constitutional right against self-incrimination thanks to the Fifth Amendment. Use it. Officers aren’t asking you friendly questions so you can be on their fantasy football team later. They are warming you up to extract information from you. Same goes for any bad cop routine—they can intimidate you with a bevy of things, including what charges can be brought or what jail is like for a pretty little thing like you. Cops can even legally lie to you to get you to talk. Yes, they can.
“People who believe they’re innocent too often think they can talk their way out an arrest like a parking ticket,” says Eduardo Masferrer, founder of Masferrer & Associates, a Boston-based law firm specializing in criminal defense. “The Fifth Amendment protects innocent people from saying something that could be twisted against them in an unfavorable way.” If you’ve been arrested, you don’t know the full framework of information the police and prosecuting attorney are working from, so anything you say could tangle you up in ways you wouldn’t expect, no matter how well intended. You’re going to be better off keeping mum than inadvertently laying the groundwork for a case against you.
That’s why Miranda rights are your friends. This is the part where the police tell you a few important things, among them: (i) you don’t have to talk, (ii) if you do talk, it can be used against you, and (iii) you have the right to consult an attorney before speaking. That last bit is especially important. The moment you ask to speak to an attorney, the police can generally no longer question you.
How do you invoke your rights? I’d do it assertive but classy: “Officer, I do not want to speak with you. I invoke my constitutional right against self-incrimination and wish to speak to my attorney.” Do not, under any circumstances follow that up with “Bam!” “Bitches!” or “That said, I’m guilty.” Note also that your handcuffs will severely diminish any attempt at a pantomime mic drop.
An exception to keeping quiet may be if the officer asks for a form of ID or, if you don’t have that, to state your identification. Generally, you are under no obligation to show anyone your ID. An exception to that in many states is if the police suspect you of a crime or if you’re pulled over while driving a car (because driver’s license).
Also, in many cases, an officer doesn’t have to immediately tell you why you’re being arrested, so don’t get hysterical with your whiny and entitled why-is-this-happening-to-me’s and do-you-know-who-I-am’s.
Seriously, Call Your Attorney
The best part about asking this question before you get arrested is that you have the chance to do the one thing for which your future-self will thank you. Poll your family, friends, Yelp, Ouija board, or whatever works for you (probably not bus stop benches), and get the names two solid criminal defense attorneys into your contacts. Stop reading and go do this now. I’ll be waiting in the next paragraph.
This is the most important professional you can have in your contacts. Why? Because, when you bust a tooth or get the flu, you have the luxury of time and freedom to research a dentist or doctor. In jail, your legal counsel research options are going to be limited to seeking advice from the kid sharing a cell with you who was arrested for tagging the Wendy’s drive through window because his Frosty was too melty.
And if you’re reading this thinking that you’re not ever going to be arrested because you’re a law abiding citizen, remember the Fifth Amendment discussion above. Most attorneys I know are going to say that laypeople are not in a position to self-represent in this situation. I mean, if a guy can’t successfully represent himself in a civil suit against Disney for refusing to license him the Star Wars X-Wing design for his real-life vertical take-off and landing vehicle, then how’s a guy like that going to do in criminal court?
Think you can’t afford an attorney? Even if you don’t have a lot of cash, do you have relatives and friends that can help you out with that? Would you rather use a public defender who wants to spend more than minimal time on your case but can’t because of case overload? Or would you rather invest in your own paid counsel with a mission to get you the hell out of jail? Do you care about your future? Do you like outside? Did I just ask you a bunch of rhetorical questions to make my point?
Sidenote: Did you look up an attorney or two like I asked you? I’d hate for you to be sitting in a jail cell wishing you’d listened to a random writer on Deadspin way back and had just looked up an attorney to call in case you got arrested.
The Phone Thing
Various state and federal courts can differ on this, but we’ve been seeing a trend that your phone passcode is protected by your 5th amendment rights (because it is testamentary evidence that exists in your head) but your fingerprint may not have the same protection with respect to unlocking your phone (because it is physical evidence).
In other words, you currently can’t be made to open your phone with a passcode, but you can be compelled to open your phone with a fingerprint. However, the police will still need a warrant to use your fingerprint. Masferrer notes: “With all the help that Apple is giving us to fight against police accessing our phones, don’t just let the police in by volunteering access.” So, in your question, unless the officer was coercing your friend or conveniently had a warrant handy, your friend was probably not “forced” to unlock his phone in a legal sense.
#ArrestHack!: If you have time during the commotion of an arrest situation, remember that iPhones and other phones do not allow fingerprint access after a restart - they require a passcode. Think fast, alleged scofflaw!
Recording
There are no laws against recording video of the police in public where there’s no expectation of privacy. Some states have laws against secretly recording private conversations, though, so be aware of that. And if you’re a third party witness who is recording video of something go down with the cops, make sure to stay out of the way—the police can stop you if you’re disrupting the scene or putting yourself in danger.
One important thing to remember: Cops, security guards, landowners on whose property you’re standing can’t just storm up and demand that you delete photos & videos from your phone. Cops need a warrant for that. Private security guards and landowners would need to go to court to prove you were doing a prohibited activity on their land and then have the court order you to delete.
Sometimes, the real world doesn’t go as planned. Phones may get confiscated, lost, or damaged. If you need to record something—like an arrest or a crime in progress—remember there’s lots of streaming apps available where the recording is going to survive a missing or smashed phone.
Search
Can the police search you in connection with an arrest? In most cases, it’s incidental to it. By the way, if you have anything pointy or sharp in your pockets, this might be a good time to lift the veil of silence and let the officer know so he doesn’t hurt himself and make your journey a darker one.
Can they search your car? They generally can search the area within your reach—also known as the “grab area” (a phrase not screenprinted on the back of my yoga pants right now)—with probable cause. If the cop is inside your house, he can conduct a “plain view” search. This is why when the police come a knocking, your best move is to step out of the house, close the door behind you, and talk to them outside. In any case, if a cop asks if he can search your car or house, it may not be clear whether the officer is just asking for your consent, or if he’s got probable cause to search—state calmly that you do not consent to the search.
Again, also a really good idea not to get physical or touch the cop in any way. When cops are touched, they spontaneously explode in a noxious spray of stale coffee and damned paperwork.
Abuse
Obviously, the cops aren’t always the good guys, and there’s nothing funny to say about it. Anything goes wrong, untoward, or abusive towards you, stay calm as you can, remember the details, looking for witnesses, and tell your counsel everything as soon as possible.
False Arrest and Related Shenanigans
Was your friend arrested because of a mistake? Probably... (unless he is living a double life and was really a drug dealer the whole time). Did it rise to a false/wrongful arrest level that would merit a civil suit against the police department? This differs state-by-state, but looks like it was relatively peaceful on both sides and only lasted a few hours. There’s usually a relatively high bar to meet on these, as police have qualified immunity, and, as long as they were following procedure and acting on reasonable suspicion, a case might be hard to make. But your friend should go talk to a litigator in your jurisdiction who deals with these things and can learn all the facts.
I hope you never get arrested (unless you did something that is both illegal and that I disapprove of), but at least you’ve got some guidelines to help you get through it. Oh, almost forgot: the mugshot. Try not to have an ugly one. That’s also important.
Dan Ralls—previously known as “A Lawyer”—is a practicing lawyer with years of broad legal experience. He is part of the team at Unwonk Podcast and can be found on Twitterhere and here. You can also find him on Medium sometimes. His opinions and conclusions are, of course, his own. Keep in mind that this is general information, and not formal legal advice or legal representation; if you need any of that, get it from a lawyer in real life, not an internet column. A legal problem is serious and fact-specific, and you should treat it accordingly. But you have common sense and already knew that.