Brad Post: You’re listening to Your Best Defense Podcast. We are speaking to Oklahoma City Criminal Defense Attorney Jacquelyn Ford. Jacqui, how are you?
Jacquelyn Ford: I’m doing well. Thank you.
BP: Good. Well, we’re just going to jump right in because it’s going to be an interesting podcast. Let’s talk about when you have a typical interaction with police. Basically, how to not get arrested. Let’s talk a little about that.
JF: Fair enough. I think the best way to avoid being arrested, clearly, is to not engage in criminal activity. But second, I advise people to avoid contact with law enforcement officers as much as possible. You can’t get arrested if you’re not in their presence, right? And you can’t get arrested if they’re not coming for you. Unfortunately, we live in a world, I think, that is different than where we lived even when I was growing up. This isn’t Mayberry anymore, and law enforcement’s position is no longer to protect and serve the public. I know that. I’ve cross-examined them. They have testified to this under oath. Their mission as today’s modern-day police is criminal law enforcement, not protecting and serving the community. So when you have that in mind, you need to understand that they are not necessarily your friends, and calling them and inviting them into your life may result in a less than pleasant experience. A lot of times the police get called because there’s some sort of domestic situation, and you and your old lady are fighting or he’s being a jerk, and she’s being crazy, and somebody wants somebody to leave. The fight escalates, and somebody eventually calls the police. Well, if you’re not in fear of imminent bodily harm or danger, there are probably bad things that are going to happen based on that phone call. A domestic situation has arisen; law enforcement is on their way. They are on their way armed and ready to defuse a highly stressful situation, which puts them at great stress, too. It increases their alertness, and they are there, you would hope, to just help you defuse. But more than likely, someone is going to get arrested. So how do you not get arrested? Don’t call the police on yourself. Don’t call the police on your loved ones because you’re mad and want to teach them a lesson. You should really reserve calling law enforcement into your life when it’s the last option, when you can’t resolve it in any other way. So I think our problem in this country right now is that we don’t know our neighbors, we don’t know our law enforcement officers. We don’t get to interact with them all the time, so they’re not your friends. They used to be, but now they’re not. They are here to arrest and put bad people in jail. When you know that’s their mindset, and that they approach every single interaction with you ready and prepared to kill you if necessary, then maybe think twice about inviting them in unnecessarily. Does that make sense?
BP: It does. Let’s talk about a typical traffic stop. You get pulled over. The police come (hopefully you have your seatbelt on), and you’re in an area where they can come directly to your car. What are some ways to respond in that type of situation?
JF: I advise everybody to handle law enforcement officers with respect. They are not approaching that car expecting to encounter a good, law-abiding citizen. For whatever reason, in their training (and I know this from their own words and from speaking to their training officers), they are approaching a normal traffic stop assuming you are a bad person and their life is in danger. Now, I don’t like to function under fear. We know what happens to our bodies when we’re in fear; we have two options, fight or flight, and let me tell you something. You can’t flee the police during a traffic stop because that will make it worse, and you also can’t fight the police officers in a traffic stop. So we need to make sure that we’re not functioning from a place of fear, number one. Number two, answer only the questions that are asked of you, and don’t try to explain anything. You have to be kind of careful of some of the questions they are asking, because their questions are designed to be very conversational, but what they’re doing is seeking probable cause. They’re asking you questions to determine whether or not they believe you’re up to good or no good.
BP: And these are kind of cop tricks, right? Them interviewing and asking questions?
JF: Right. And this is how they’re trained, and it’s been accepted by most courts most often. So when you know that cops are allowed to lie to you—and they are allowed to lie directly to your face—and nobody is going to do anything about that for you, then you now have to be suspect about some of the things that law enforcement is saying to you. They are not usually there to help you out of a bad situation, right? They have you pulled over, you’ve already violated the law in their eyes. Their goal now is to get into the car, search the car, see if there’s more criminal activity going on, ask you a battery of questions, ask your passengers a battery of questions. My advice to clients is this: if you’ve been pulled over on a traffic stop, treat the officer with respect. He hasn’t done anything to you to earn anything other than respect. And he may or may not be respectful for you in return. That doesn’t matter; we can’t control that. So you provide your driver’s license and insurance verification. As the follow-up questions start coming in, I often tell my clients to politely refuse to answer those questions. Where I am going and where I’ve been aren’t relevant to whether or not I’ve been speeding. Those questions are designed to ask me and my passenger what’s going on because, in their training and experience, those answers not matching up give them what they believe to be probable cause. This starts working toward probable cause to search your car, search you, and eventually arrest you. So these questions are not necessary for the purpose of their traffic stop. I advise my clients to politely say, “I’ve given you my license and registration. Is there anything you need from me to complete this traffic stop?” Now, depending on the temperature of our officer, that’s either going to be received well or not well. We have business cards in our office we’ve printed out based on Supreme Court cases and cases dealing with answering law enforcement questions. A lot of times clients get frustrated because they say, “Oh, I wasn’t read the Miranda.” Well, your Miranda Rights are only applicable if you are in custody and being interrogated. So they don’t have to read you Miranda Rights to ask where you’re going, where you’ve been, or your travel plans. What I tell my clients to do—and it’s on the business cards. I’ll just read it to you. It’s on the back of the card we provide clients in the office. It says, “On the advice of my attorney, I respectfully decline to answer on the basis of the Fifth Amendment, which according to the United States Supreme Court, protects everyone, even innocent people, from the need to answer questions if the truth might be used to create the misleading perception that they were somehow involved in a crime that they did not commit.” Is this going to be well-received? I guess it just depends on the police officer. The police officers who aren’t going to like the tone of this podcast are the police officers who won’t like the tone of that response. But always keep your own personal cool. You can’t help escalate the situation. We’ve seen it on videos and the CopBlock of how these people are trying to avoid answering questions at DUI checkpoints. The fact of the matter is, you have the right to refuse to answer those questions. If they want to arrest you, you have the right to refuse to answer questions then, too. If it’s going to get worse before it gets better anyway, then stop talking. That’s a huge problem that people have. You have a very important Fifth Amendment right to remain silent. It’s in the United States Constitution—in the Bill of Rights. And it’s there because it’s a very important right. Exercise it! The less you say, the less information you can give them to either rightfully or wrongfully believe that criminal activity is afoot. So I tell my clients to be respectful, answer the limited number of questions regarding your driver’s license and insurance. The rest of it, you really just need to keep your mouth shut. “Officer, I’d like to not answer those questions at this time. Is there anything you need from me for the purposes of this traffic stop?
BP: Usually are they required to tell you what they pulled you over for?
JF: Yes, I think most police officers know they have to tell you—they’re going to have to tell somebody why they pulled you over. It’s going to be in the PC affidavit at some point. So yeah, they should tell you why they pulled you over. Often they like to ask questions like, “Do you know why I pulled you over?” That’s a tricky one. I’m asked that question—I have a lead foot and tend to get pulled over a lot—and sometimes, I say, “Yes, Officer Smith. I was speeding. I apologize.” But I feel very comfortable interacting with law enforcement, and I also understand that me acknowledging the fact that I was speeding is probably going to help me move the situation along. Sometimes maybe I don’t know why I got pulled over, or sometimes I think it was speeding but I’m not sure, so sometimes I say, “No, Officer. Why did I get pulled over?” because maybe he pulled me over for something besides speeding and now I’ve just ponied up to another crime and I’m not taking my own personal advice. So do as I say and not as I do. But I don’t like answering the question “Do you know why I pulled you over?” because the much more appropriate thing is the officer telling you why he or she pulled you over.
BP: When do you consent to a search if they want to search your car?
JF: My advice is always don’t consent ever. People ask me why, and because unless nobody else has been in your car for the entire time you’ve owned it, then you probably don’t know everything that’s in your car. And law enforcement doesn’t ask for your permission unless they need it. They don’t have a right to search your car without a warrant first or your consent. They must be able to, in the future in legal documents, articulate reasonable facts that gave them a reason to believe that criminal activity was afoot before they searched that car. That right is so important. Why just give it away? That’s my position on consent: why just give it away if people literally have lost their lives defending it? So, I generally advise not to consent to a search. Sometimes, if you know the dog’s coming anyway and you know you’re about to get busted anyway, people wonder what to do. If it’s going to happen, let it happen. Don’t let your own words “put you in the pokey.” Don’t say, “Oh no, please, Officer. Don’t search. Here’s the marijuana in my console.” You’re hurting my ability to help you in the future. And law enforcement would disagree. They’ll say you’re cooperating and they’ll tell the DA. But that’s absolutely not true. I’ve represented well 5,000 criminal defendants, and not one district attorney has said, “You know, your client confessed and handed over the smoking gun, so we’re just going to let him slide on this one.” That’s a cop trick, the idea that they’re going to work with you on this one and make this better for you. They can, theoretically, by not arresting you, but what law enforcement officer do you think is going to not arrest you with the marijuana or the smoking gun in your car? So, my advice? Don’t consent. My advice with respect to making voluntary statements? Don’t do it. If you’re going to make a statement to law enforcement and you don’t have a lawyer with you, you’re doing yourself an incredible disservice. Call me. I have taken my clients in and made statements before, but those are strategic, thoughtful, meaningful decisions that we made together, not in a fast environment, not on the fly. You have to have the advice of counsel, and you have to have somebody representing your interests when you’re talking to law enforcement, because they are not there to represent your interests. So you’re protecting your Fourth Amendment right by not consenting to a warrantless search. Good job. Protect your Fifth Amendment right by not saying anything that can be used against you because they will, if they can, use it against you. It’s not that it might be used, it’s that it can and will be used against you. And the third important right is your Sixth Amendment right to an attorney. That’s why you don’t talk without a lawyer, and it goes back to why do you hire a lawyers? Because we have these important rights that have to be protected against government intrusion. The Fourth, Fifth, and the Sixth Amendments specifically apply to all of my clients, so you never want to waive any of them without the advice of counsel. You have the right to record law enforcement. I tell all of my clients to have a recording mechanism on their phone—and I don’t mean your phone’s recorder, because unfortunately, not all officers but some officers will take your phone and destroy that. So I advise my clients to put some sort of app on their phone (and there are plenty through the app store) that allow you to record law enforcement. That recording is sent via the Web to a streaming service, and it’s there if and when your phone gets “lost” or “broken” or “misplaced” in the evidence room. I believe that any law enforcement officer who’s doing his job and doing his job right would want that, too. I advocate very strongly for police cameras—body cams, dash cams, interior car cams—because it protects everybody. It’s not designed to punish the officer; it’s designed to protect the citizen accused.
BP: All right. You’ve been listening to Your Best Defense Podcast with Attorney Jacquelyn Ford, and you can see her website at www.fordlawokc.com.
