All posts in Search And Seizure

so polite

You know what I tell people who are in my office because they let the police search their car and, well, the police found that bag of weed that the “arrestee” had no idea was stashed in the center console?  I don’t initially tell them anything.  First I ask them why they would ever let the cops search if they knew they had weed in the car.

Of course, everybody lets them search because “they were going to search anyway”- which is probably true.  Although, in my mind, that’s actually more reason to tell them not to.  Either way, if you tell them they can search, they will. If you tell them not to search, they will then, too. Or, so people think.

It matters if you don’t consent, though.  If you tell them not to and they do anyway, your lawyer may be able to get that crack pipe that your friend accidentally left in your jacket pocket suppressed.

I say that you may be able to get it suppressed, because whether you consent is not necessarily the end of the game.  Even if you don’t consent, they can search if they’ve got something law people call “exigent circumstances.”  Exigent circumstances is a really confusing way to describe something that gives the cops a real belief that you’re breaking the law.  Like, for instance, when they pull you over for speeding and when they’re getting your license you’re wearing your “I HEART Weed” shirt, you’ve got a smoking one-hitter sitting in your lap and a large cloud of burnt cannabis is escaping your open window.

In that case, it doesn’t matter if you give them consent.  They’re going to search the car, and the judge will be ok with that.

It doesn’t even have to rise to that level, though.  Generally speaking, if you’re a jerk to the cops they’re going to find exigent circumstances. I mean, they may not actually find exigent circumstances, but they’ll end up being in the police report and being testified to in front of the judge.

So you should just go ahead and be polite, right?  Right…. wait. Maybe.

That’s what Joshua A. Fontaine did in the great state of Ohio.  According to the recently decided case of Ohio V. Fontaine a lawman stopped Mr. Fontaine.  During the stop, the lawman became “suspicious of criminal activity.”

Why was he suspicious, you ask?  Because Mr. Fontaine was too damn polite, of course:

“While speaking to Mr. Fontaine I felt that his body language and his behavior was a little bit unusual. He was extremely — like almost overly polite, and he was breathing heavily at times while I was talking to him.”

Almost overly polite. Almost. Overly. Polite.

That’s what a cop in Ohio used as the major part of an excuse to pat Mr. Fontaine down for weapons, put him in a squad car, and call the K-9 cop.

Almost overly polite. That’s just silly.

Thankfully the trial court agreed, and tossed the whole case.  Of course, the prosecutors couldn’t let that go, so they used taxpayer money to drag the case on through an appeal.  The Appeals court agreed with the trial court:

“We agree with the trial court that “overly polite” and “heavy breathing” are not sufficient indicators that give rise to a reasonable suspicion of criminal activity.”

So, there you go. If you’re a jerk, the cops are probably going to search. If you’re polite, they’re probably going to search… but you might win on appeal.  Isn’t that fantastic?

see something

“If you see something, say something.”

Isn’t that a cute little slogan?  I think it is. If you’ve never heard it before, it’s the slogan Homeland Security made up in an attempt to turn us all into hall monitors and spy on our neighbors.  Because, you know, if you’re not suspicious of every little thing you see and you don’t report that to the police, all sorts of unscrupulous people will commit untold horrors upon all of us.  You are the one who needs to see something, say something, and save the world.  Otherwise the terrorists win.

You know what?  They don’t really mean that.  Sure, they mean it when you’re “seeing” your weird neighbor. They don’t mean it when you’re “seeing” them, though.

I’m not going to pretend to have been in this law game forever. I’m approaching 15 years, though, and that’s long enough to have figured some things out.  One thing that never would have crossed my mind had I not seen it several times in person is the amount of bullying that happens to witnesses of police abuse.  I’m not even necessarily talking about the person directly abused by the cops. I’m talking about other people that were just hanging around and saw it happen.  It’s scary.

It happens like this: defendant walks into a lawyers office with bruises all over his body, a face that looks like it’s been whacked with a meat tenderizer and a story that, he might have told the police to stick their batons where the sun don’t shine, but he absolutely didn’t get physical with them. Yet, they beat the piss out of him.

-KRS ONE “Who Protects Us From You?”

Couldn’t ever happen like that, right?

So, the abuse gets reported, the report trickles down to whatever police body is in charge of investigating the other police (sometimes they’re all even in he same department) and a “full investigation is underway.”  The investigators talk to the cop who says something to the effect of “that kid came at me with a samurai knife so I had to ‘assist him to the ground’ and he accidentally struck his head.”  Then the investigator goes to the witnesses who say “the defendant was minding his own business and the cops handcuffed him and started kicking him.”

You know what happens then?  Well, if the allegations weren’t against a cop (but were against a “regular dude” like you or me) they’d charge us with the abuse thinking the jury can sort out who is telling the truth.  So they charge that cop just like they’d go after you or I, right?

Exactly… the opposite.

They go back to the witnesses, tell them that they’ve got credible evidence that they’re lying, and that if the witnesses maintain their “false report” of such allegations, the witnesses themselves will likely end up in jail.  You can’t be saying false things about a cop.  And that cop you know you saw beating on your buddy? He says it never happened. So, it must be false.

That’s really just a long setup for the following video. It’s one of the most disturbing things you’ll ever see that doesn’t involve violence.  A lady appearing before a hearing officer was pulled out of court by some clammy-handed, law enforcement goon for an unnecessary and very personal search.  What followed? She saw something. Said something. Got arrested in front of her kid (and the hearing officer ignored the whole thing):

So, if you see something, say something.  Unless it’s a cop doing something bad.  Then you didn’t see shit, right?


Doesn’t happen, right?  The fuzz is there to serve-and-protect.  They’d never do anything to bring otherwise disinterested drug dealers into your neighborhood.  That seems silly.

Unless you live in Sunrise, Florida, anyway.  There, they think it’s a great idea.  According to the Sun Sentinel:

A money-making venture to lure out-of-town drug buyers into Sunrise to purchase cocaine from police has been halted as a result of a Sun Sentinel investigation.

* * *

The newspaper revealed that police enticed buyers with bargain prices and offers of coke on consignment.

You can see the city officials engage in some grade-A law enforcement boot-licking, and media bashing in this quick clip:

I find this amusing on two fronts. First, the cops aren’t trying to address any potential problems that may already exist in Sunrise, Fla.  They’re trying to create a problem. Second, their motivation is money.  They’re chasing Benjamins. You can learn more about chasing Benjamins in this quick clip:

How do they make money? Fairly easily, actually.  They arrest the drug dealers they’ve lured into town.  Then they “take all their stuff.”  If you didn’t already know, “take all their stuff” is lawyerspeak for what law enforcement calls “seizing” and “forfeiting” stuff (of course, if you did it to them, they’d call it “theft” or “stealing”).  So, after they’ve lured Johnny Drug Dealer into town, they arrest him, take all of the cash he brought with him, and also take his car (and possibly everything in it).

The Sun Sentinel published the results of a six-month investigation Oct. 6 and 7 exposing how the police department’s narcotics unit has made millions of dollars in recent years — not by capturing local drug dealers but by drawing high-dollar cocaine buyers into Sunrise from far away and then seizing their cash and cars.

Pretty awesome business plan, no?  You’ve already got the cops on the payroll, so there’s no additional overhead. Just sit back and watch the free money roll in.  Except, you don’t:

 The city also paid one lady informant — a charming, shapely brunette — more than $800,000 since 2008. She was credited by police with helping Sunrise set up 63 stings and reel in at least $5 million in cash and assets seized from criminals, according to a court record.

The newspaper also reported that a dozen undercover officers regularly working the stings made a total of $1.2 million in overtime over three-and-a-half years.

The hidden costs always get you, don’t they?

Thankfully, I’m not the only one that thinks intentionally luring gun-wielding drug dealers into neighborhoods with kids is a bad idea:

“It bothers me that they don’t see a problem with it,” Sunrise resident Roseanne Eckert told the Sun Sentinel Friday.

The mother of a teenage boy, Eckert wrote to the mayor earlier in the week, expressing concern about the safety of her son and his friends riding bikes near Sawgrass Mills, the sprawling outlet mall where undercover police and informants posing as cocaine dealers have staged stings.

“I now have to worry that your … police will be out guns blazing because of criminals they brought to our city?” she asked the mayor.

Nevertheless, the city officials support the program.  Sadly, they’ve been forced to shut it down because of the media attention.  The damn media always screws up every good law enforcement program.

Somewhat lost in the article is the scariest thing of all.  That’s the idea that even local policing isn’t about policing anymore.  In your state, in your city and in your neighborhood, there very will is a police department putting together a policy that looks more like a business plan than guidelines for being decent cops.  That may not bother you now, but it will once it makes good business sense to ignore your rights and arrest you.

They are watching

An interesting report spurred on by the ACLU is hitting the news today.  It seems that your local police department may be using cameras and computers to store your license plate information… including the location of where and when your car is located.  According to the USA Today report:

The digital dragnet mostly collects data that are unrelated to any suspected lawbreaking or known activity of interest to law enforcement. It is a fast-growing trend ripe for misuse and abuse, the ACLU says.

We know the ACLU has nothing to worry about if it has nothing to hide.  What’s a little license plate data collections among friends, really?  Maybe the ACLU just doesn’t want you to know it’s shopping at Costco instead of Freshmarket?

Thankfully some of the cops are telling us that these are actually good.  After all, when your ’94 Chevy Malibu gets stolen from the church parking lot they’ve been monitoring, you’ll be happy they’ve also been scanning the license plates of all the cars pulling in and out of the Dog ‘n Suds up the street, right?  That way they cops will be able to know what the thief who “borrowed” it had for lunch on the way to the chop shop.

Wait.  They’d never go to a place of worship to record who is coming and going and where people practice their religion, would they? Of course they would:

In perhaps the most high-profile case, police in New York City used the readers to record license plates of congregants as they arrived to pray at a mosque in Queens.

And Rockwell thought it was the mailman and I.R.S. who were watching him. So silly.


Matt Haiduk is an uncooperative Criminal Defense Lawyer with offices in Kane County and McHenry County, Illinois.  Feel free to follow him on twitter or add him on Google+.

New York is upping their surveillance cameras from 3000 to 6000.  Each of these cameras will be accessible inside patrol cars in New York.

Nothing could go wrong there.



Law Dude, Ray Flavin, represents drivers charged with DUI in McHenry County, Illinois.  His offices are located in Woodstock, IL.  He can hardly wait until cameras are placed everywhere and crime is finished, so we can cut the number of police officers.  He is also known to sometimes write tongue firmly planted in cheek.

 Maybe you can bake me a cake and get some proper party hats up in here, while you’re at it. We’re going to do things a little differently today.

Martin Luther King had a dream.  I don’t have to tell you that.  I had a dream, too.  It’s not even close to being as important as MLK’s dream.  It’s probably more important than Lionel Richie’s dream, though.  Not that “people in the park playing games in the dark” isn’t an awesome dream- it’s just that I’m dreaming about interrogations.

I know what you’re thinking. You’re thinking that you dream about interrogations, too.  The difference between us is that I dream about interrogations that actually happen.  You?  Well, I know that are dreaming of the (probably) not safe for work interrogation in Basic Instinct:

If you’re a regular reader here, you know I’ve been on a crusade against the Reid Technique of interrogation.  If I were to briefly sum up my dislike for it in a few sentences (a nearly impossible task), it would be something like this:

  1. The Reid Technique is an incredibly complicated psychological tool that even the Reid Institute admits can lead to false confessions;
  2. The primary way the Reid Technique looks to prevent innocent people from admitting to things they did not do, is for the interrogator to reasonably believe the suspect is guilty before getting into the 9 steps;
  3. Interrogators are wrong when it comes to judging guilt or innocence- a lot. This essentially makes step #2 a joke.

So, I had this interrogation dream.  I dreamed the cops showed up at my office.  When I asked them why I was there, they asked if I’d be willing to come on down to the station to talk “about a few things” and they’d give me more information there.  Of course, because I don’t even listen to my own advice, I went down (letting them drive me, as they always like to do).  Why not?  I’m innocent. I have nothing to hide, right?

Interrogation room setup

Interrogation Room

When I got there, it was almost like my little dream turned into a Reid Technique nightmare.  I’m in a tiny room with bland walls and no decor.  There’s an interrogator in a chair right in front of me.  There’s another dude off to the side just watching.  They’ve closed the door telling me that they’d like to keep it private.  They told me there were cameras, but they weren’t running.  They told me that I killed Jimmy Hoffa.  They’re sympathetic, though- I probably did it in self defense. After all, Jimmy got violent when he drank and he was probably violent that night, right?  Every time I tell them they’re nuts, they cut me off.

Then I wake up in a cold sweat.  That’s not my dream, man.  That’s a nightmare lived out on every youtube interrogation video ever posted.

In my dream, it doesn’t go down like that.  In my dream, they come to my office and ask to talk.  When they tell me they’d rather not talk in my office, I say “sure, let’s head down to Dunkin’ Donuts. I’ll call my lawyer and make sure he can meet us.”  I know they’re not going for that, even if they do love donuts.

But, maybe this is one of those dreams where I end up doing weird things. So, I head down to the cop shop and they walk me into that little room.  “Just take a seat right there,” he says to me.  It’s my dream, so I’m not about to sit where some dude tells me to.  Instead, I fire back,  “How about you sit in that cramped corner with your back to the wall, your buddy the observer can sit in the little chair only two feet away, and I’ll sit over here in the non-confrontational chair across the table?  Maybe you can bake me a cake and get some proper party hats up in here, while you’re at it. We’re going to do things a little differently today.”

How do you think that’s going to go?  I don’t know much about anything important, but I do know a little about the police.  They hate it when things go off script.  They hate it when you don’t let them take absolute control, and they hate it when you say things to them that they aren’t prepared for.  I’ve been reading the Reid Technique manual.  Oddly, it doesn’t tell an interrogator what to to do when the suspect won’t sit where he’s “supposed” to.  Probably because nobody tries it.

I’m not sitting anywhere I don’t want to. I’m also not letting them ask anything they want.  “Tell us about Jimmy Hoffa… we know you knew him,” they ask.  “How about you tell me a little bit about yourself, first... Are you a Virgo?  You look like a Virgo.” I shoot back. “You know where I live.  You know everything about me.  What about you?  Where do you live?  Wife? Kids?”

And when the cop changes the subject or refuses to answer, I’m going right back at him with the same thing.  “Tell me about your house, officer.  How big is your basement?  How many bathrooms.  Do you shovel your own driveway?”  Seems only reasonable that if I’m going to have a conversation with a man, I can get to know him first, right?  When he doesn’t want to talk, well, I’m shocked and offended.   I came down to his turf to be a decent man and conversate. Here he is and he won’t even tell me what he likes on his pizza.  The nerve of some people.

The Reid technique is all about control and getting people to talk to a stranger about what you would think might be their most private moments.  In my dream I’m firing out of the box and letting those cops know that if they want that from me, they’re going to earn it.

There really is no Reid Technique in my dream.  Before we ever get there, the interrogator gets frustrated.  He starts yelling at me.  He tells me he’s not going to answer my questions. He tells me what seat I have to sit in, and when I refuse to go there he threatens to use force to “assist” me there.  Rather than get assited anywhere, I give him back a little control.  “You want to be in control Mr. Officer?  I’ll give you control.  Let me the hell out of this station, or I’m calling my lawyer. You control which I do.”

And then I wake up giggling.

Would a cop get that frustrated in real life?  How is the interrogator going to act if I don’t sit in the special seat?  I’ve never seen anybody try that, so I don’t really know.  The Reid books I’ve read don’t really cover it, either.

I’ve seen enough police work to have a pretty good idea of how I think it will go down.  I don’t know for sure though.  That’s why, until it happens, it’s all just my glorious dream.

Matt Haiduk is a Criminal Defense Lawyer who likes to live by his own rules.  He has offices in Geneva and Crystal Lake, Illinois.  Feel free to add him on Google+.