Frequently Asked Legal Questions …
In this section Donald Lykkebak provides answers to questions that frequently arise in many criminal investigations. Because of the unexpected timing of most investigations, this information may prove to be valuable in your initial evaluation of your current problem. Do not delay seeking professional consultation because you see an answer you think applies to your situation. Call our office immediately and make certain you have an accurate understanding and receive professional guidance.
Frequently Asked Questions …
WHEN CONTACTED BY THE POLICE, WHAT ARE MY RIGHTS?
If you are ever the focus of a criminal investigation, be very wary of speaking to the police. This is the time, before an arrest or a search warrant has been obtained, to first assert your constitutional rights. Do not be concerned about what the police think of you. When you are the focus of their investigation the police are not your friends. If the police are conducting a criminal inquiry they do not necessarily mean you well and cannot be trusted to even tell you the truth. The law allows them to deceive you about what they know and permits them to trick you. How you handle your first contact with the police may be critical in avoiding a possible criminal conviction and a prison sentence.
WHY IS IT SO IMPORTANT NOT TO SAY ANYTHING TO THE POLICE?
You take a great risk by speaking with a police officer (or anyone else who is not an attorney) about anything that might be related to a criminal investigation. If you make this mistake it will most likely create a later problem for you. The police officer’s version of what you said may be different than what you remember saying. You will be misquoted and that misrepresentation will be unfavorable to you.
WHAT IF THE POLICE SHOW UP AT YOUR DOOR AND ASK TO COME INSIDE?
Police have been known to knock on your door in an attempt to engage you in what they refer to as a “consensual encounter.” This is also often called “knock and talk.” When the police lack probable cause to make any arrest or to obtain a search warrant of your residence, they may hope to trick you into waiving your constitutional rights. They want either to search without warrant or to speak with you against your best interests. This police practice has been criticized by recent appellate court decisions.
Tell the police that you do not wish to discuss anything with them without first speaking with a lawyer.
NEVER let the police enter your home without a search warrant. If they show up at your door in furtherance of their own criminal investigation, you should be very guarded. (The only time you should let them in without a search warrant is if they are at your home in response to a 911 call that you made because you need their assistance to address a problem.)
Tell the police they may not enter unless they have a warrant. Evidence obtained from the search without warrant may be used against you because you agreed to the entry. Even when you have absolutely nothing to hide insisting on a warrant protects you. If you consent to a warrantless search you invite them to ransack your residence without judicial oversight. A warrant gives your lawyer a judge to whom he may complain about excess.
Resist the temptation to simply be courteous. It may be your custom not to leave a visitor standing on the front porch. Perhaps, you invite them into your foyer or entry way of your home. Do not open the door and do not afford this courtesy to the police.
Many officers will immediately enter and exceed the scope of your invitation by wandering into your living room, dining room and other common areas of your household. Their eyes are looking everywhere and they are using their other senses including smell to determine if there is any contraband. You have unwittingly invited an invasion of your privacy. The Fourth Amendment to the U.S. Constitution as well as the Constitution of the State of Florida does not require you to allow them into your home without a search warrant. Your constitutional rights protect you from such warrantless intrusions.
WHAT CAN I DO IF THE POLICE JUST WALK INSIDE MY HOME?
If the police barge into your home without invitation after you answer the door immediately tell them firmly but politely, “You may not come into my home unless you have a warrant. You do not have permission to enter. Please leave now.” Always be courteous, but do not allow them to intimidate you or put you on the defensive with any lies such as “if you cooperate with us it will go much easier on you” or “if you have nothing to hide, why would you object to our looking around?” You do not owe them any explanation. The Constitution guarantees this protection for you.
WILL THE POLICE CORRECTLY REPORT WHAT HAPPENED?
It is foolish to believe that the police will correctly represent the circumstances or their conversation with you during these confrontations. They will not. It is important to know that there normally will be two sides to the story: what they say you said and what you say you said. That is why you must not engage in conversation with them. Your position must be simply and briefly expressed: “Please leave my home. You do not have permission to be here.” Experience demonstrates that they may misrepresent what you say and they may tell the Judge that you invited them into your house when you did not. Repeatedly ask them to leave, tell them that they do not have permission to enter without a warrant and that you wish to consult with an attorney. You are making your point with them and you want to make certain a correct record of your objection is presented later to the Judge.
WHAT DO I DO IF THE POLICE STOP ME WHILE I’M IN AN AUTOMOBILE, TRUCK OR OTHER VEHICLE?
A person’s right to privacy is not as secure in an automobile on the highway as it is in his own home. The courts more often find circumstances justifying warrantless search. However, there are guidelines.
When you drive any vehicle, you are obligated to drive one that is fully equipped with all of the required equipment, and you must obey the rules of the road or you risk being lawfully stopped by a law enforcement officer who observes you. Failure to observe any simple traffic law or an equipment violation may provide a legal and legitimate reason the police can use to pull you over.
A driver should be very conscious of the expiration of his driver’s license. Normally this will happen during the month of your birth. Even if you have not committed a moving traffic violation or your vehicle has no defective equipment you may be susceptible to a stop and be surprised when an officer demands your license. Computers available in police cars allow an officer to call in the tag number of a vehicle he is following or has observed. The computer can tell him whether the owner of that vehicle has had his license suspended, revoked or if it is merely expired. The police have been known to check vehicles in a parking lot and after finding one whose owner has a revoked, suspended or expired license, they may then wait in the parking lot until someone comes to drive the car away. The car is pulled over to ascertain whether the driver is the owner of the vehicle.
IF I AM STOPPED FOR SPEEDING, WHAT CAN I EXPECT?
You should know that once you have been stopped for a traffic infraction, the police officer has the right to issue you a ticket for that infraction. This is a summons and it is not an arrest. Because it is not an arrest he does not automatically have the right to search you or your vehicle. If you are receiving a ticket for a traffic infraction, the officer might ask for permission to search your vehicle. Do not give permission for any search without a warrant. If you do so, you may be delayed for hours and your vehicle may be ripped apart in an aggressive search process. If any contraband is located in the search you have already waived your constitutional rights and have made it more difficult for your lawyer to help you.
If you experience a routine traffic stop, you should know that the police officer may legally detain you only as long as it takes to reasonably write a traffic citation. Make note of the time of your stop. Also make a mental note of the time that the officer first asks for permission to search. Ask him to please give you the citation so that you can be on your way. Do not attempt to educate him about the restrictions on his right to detain you. Simply ask him to give you the citation and return your driver’s license so you can leave. He may try and detain you while he summons a dog to sniff your car. In many cases this is more time-consuming than the law will permit, but you must know your rights and inform your lawyer later that you were detained a length of time waiting for the dog.
DURING A TRAFFIC STOP, HOW WILL THE POLICE TRY TO SEARCH MY CAR?
After the ticket is written and right before or after it is handed to you, the police officer may say in a casual manner: “Oh by the way, you don’t happen to have any weapons, explosives, drugs, contraband or large amounts of cash in the vehicle, do you?” The driver then responds, “No, sir” at which time the officer quickly replies, “You don’t mind if I have a look, do you?”
BE VERY CAREFUL HOW YOU ANSWER THIS QUESTION!
This question is designed to catch you off guard. If you say, “no” meaning that you don’t want him to search, it will purposely be misconstrued by the officer so that “no” to him is interpreted as “no, I don’t mind if you have a look.” The question is framed so that a “no” gives permission. You are cautioned to state your position clearly and in complete sentences. “No you may not search.” “You do not have my permission.” “I do mind and will not consent to a search without a warrant.”
When you tell the officer this, he will have to drop back to Plan B and may not have probable cause to seek a warrant. Resist in talking any further with him. Tell him that you will not discuss these matters further with him without a lawyer. Ask him if you are under arrest. Tell him you would like your driver’s license and citation so that you may leave unless you are under arrest. Make note of the time because your lawyer will want to know how much longer you are detained if the officer does not allow you to leave at that point.
HOW DOES A TRAFFIC STOP ESCALATE INTO A SEARCH FOR MARIJUANA?
If the police officer who stops you claims that he smells marijuana, he is going to search your vehicle without a warrant and without your permission.
If you were driving around while smoking marijuana, or after having recently smoked marijuana with the odor still on your clothes, or if you have made the mistake of having some marijuana in the vehicle with you, your situation is now quite different than the normal vehicle stop.
If the officer has reasonable suspicion to make a stop in the first place and approaches your vehicle and smells the odor of marijuana, he is authorized by law to search the vehicle without a warrant. This is a classic mistake which gives rise to many marijuana arrests. If this happens, all passengers in the vehicle would be smart to remain silent and make no admissions. If questioned, ask for an attorney: “I have nothing to say without a lawyer.”
IF THE OFFICER FINDS MARIJUANA IN MY CAR SHOULD I TELL THE POLICE OFFICER THAT IT IS NOT MINE?
Do not say anything about the ownership, knowledge or possession of the controlled substance. Also, do not volunteer to the police that others in the car, “knew nothing about it.” Just because the police have found it does not mean you are obligated to make any explanations. Keep your mouth shut. Do not attempt to explain anything about the situation in the hope of avoiding a problem.
If you are the driver and there are other people in the car as well, then it does not necessarily mean that because you are the driver or owner of the car that the marijuana in the vehicle is yours. In fact, when marijuana or any drugs are found concealed in a car, under a seat, in the trunk, in the console and not out in plain view, the State must prove that each person charged with possession knew that the marijuana or drugs were in the car. “Possession” requires proof of knowledge. This is why it is important for everyone to remain silent if there is more than one person in the car.
WHAT MUST I SAY OR DO WHEN A POLICE OFFICER STOPS ME WHILE I’M DRIVING OR RIDING IN A CAR?
You can expect a certain amount of minor chit-chat in most any traffic stop. Questions may be, “Where are you going? Where are you coming from?” There is no harm in answering a couple of harmless questions as the officer is taking your driver’s license information. There is no requirement to submit to a detailed questioning about your personal affairs. For example: “Where are you going?” “Who did you visit?” “Where have you been? None of this is the police officer’s business, and prying questions are designed to set a criminal investigation in motion. Avoid answering these types of inquiries, but do not lie. Tell him you prefer not to answer personal questions.
CAN THE POLICE SEARCH MY VEHICLE IF I’M ARRESTED?
If you have been pulled over for a traffic infraction or an equipment violation and the officer discovers that you are driving under the influence and makes an arrest for DUI, there is a good chance that your vehicle is going to be towed, and it is going to be thoroughly searched. That search would be lawful and does not need a warrant.
The same is true if you have been driving while your driver’s license is suspended. Driving while license suspended is a criminal violation for which you will be immediately arrested. Your vehicle will be searched. Arrest after any other criminal traffic violation will lead to search of the vehicle. Examples of criminal traffic violations are reckless driving, leaving the scene of an accident, or fleeing and eluding. These criminal traffic violations will lead to an arrest.
If the automobile is going to be towed by a wrecker company, then the police are responsible to take an inventory of the contents of the car before they turn it over to the wrecker company. This is called an “inventory search” and it is legally permitted. Sometimes if you have a passenger who is a licensed driver and physically able to drive the car, the officer will forego this procedure. He may decide not to tow the vehicle and allow your passenger to drive it away.
WHAT IS THE DIFFERENCE IF I AM STOPPED FOR SPEEDING?
The above examples differ from moving traffic infractions such as speeding, failure to yield or running a stop sign. Those are civil infractions and do not result in an arrest. Infractions do not provoke a search of your car without other circumstances such as your consent or the odor of marijuana.
You may be required to produce your driver’s license, vehicle registration and proof of insurance before the officer writes the ticket. You may not be legally detained longer than is required for the officer to prepare the written traffic citation. This is normally just a few minutes. Make note of the time that you are stopped and give the required documents to the police officer. You must be released and allowed to go on your way unless the stop and investigation are for a criminal law violation. Traffic violations are civil in nature and that is why a citizen may not be unreasonably detained.
WHY SHOULD I BE DILIGENT IN GUARDING AGAINST WAIVER OF MY CONSTITUTIONAL RIGHTS?
Remember that the criminal justice system does no favors for the defendant against whom it has a lock-solid case. It rarely shows leniency to an accused person who has given a full confession or waived his right to search without a warrant. When the prosecutor holds all the cards he is most inclined to play hard ball with you and your lawyer. On the other hand, if you have handled yourself wisely and kept your mouth shut and if you have refused to waive warrantless search and seizure of your property, your lawyer may be able to make the most of any evidentiary problems. By raising these issues, your attorney may be able to obtain either an acquittal or at the very least, a much more satisfactory resolution of the problem for you. Unfortunately, if you gave a confession because the police promised you it would be better, or the Court “would go easier on you,” you’ve left your lawyer with less chance to help you. Also, if you consented to a search and didn’t insist that the police show probable cause to a Judge, you may have lost your right to complain of an unreasonable and unconstitutional search and seizure. Be smart about this. Leave your lawyer some good facts to work with.
WHITE COLLAR CRIMINAL INVESTIGATIONS
Donald Lykkebak has extensive experience in representing people accused of business-related crimes including bank fraud, mortgage fraud, grand theft, scheme to defraud, etc. It is important for a person who believes he is the target of a criminal investigation, either federal or state, to seek legal assistance immediately at the very first indication. Sometimes a friendly banker will tell you that investigators have come by the bank asking about you or your business There are several questions that are regularly asked at the beginning of these investigations. These are addressed below:
WHAT SHOULD I DO IF I, OR ONE OF MY EMPLOYEES, RECEIVE A GRAND JURY OR STATE ATTORNEY SUBPOENA?
You may already be aware of the investigation into the operation of your company. If not, this subpoena has put you on notice of the prosecutor’s interest in your business. If you have not already consulted with a Board Certified Criminal Trial Lawyer you must do so now. It may also be your responsibility to see that your employee has legal representation. Your employee is probably quite frightened and does not know what might be expected of him or her. He or she should have independent counsel. Speak to your lawyer about the wisdom of getting an independent lawyer to answer your employee’s questions.
WHAT SHOULD I DO IF I RECEIVE A SUBPOENA FOR BUSINESS RECORDS?
A subpoena for business records usually signals the first stage in a criminal investigation of your business. If you have not already, then this is the time to seek representation of a Board Certified Criminal Trial Lawyer and obtain guidance in how to properly respond to the subpoena. A subpoena seeking records of a corporation may well obligate the company to produce everything requested. It may also be overbroad and burdensome to the point that your lawyer can file a legal objection to its scope. Do not destroy records in an effort to conceal them from inquiry.
WHAT SHOULD I DO IF AGENTS APPEAR WITH A SEARCH WARRANT AUTHORIZING SEARCH OF MY BUSINESS PREMISES AND SEIZURE OF PROPERTY OR RECORDS?
If you already have a lawyer, immediately contact him and request that he recommend a Board Certified Criminal Trial Lawyer. Give only limited cooperation to the officers and do not interfere with the execution of the warrant. Obstruction is a separate crime and would have separate consequences. Your lawyer may find it advisable to come to your business while the agents are still there. His presence may speed up the process. The agents may have the legal right pursuant to the warrant to remove your computer hard drive as part of their search. You may find it to your advantage to work with them to obtain copies of the hard drive so that minimal stress is caused to your business.
HOW MUCH SHOULD I BE INVOLVED WITH THE AGENTS DURING THE SEARCH?
A warrant for search of your business is not an order compelling statements or admissions from you. Keep your mouth shut and do not answer any questions about the operation of the business or any aspects within the focus of the investigation. At first, you may not clearly understand the basis of their investigation. Make no assumptions. Do not explain company protocol, policy or chain of command. Because the agents are executing a warrant on your business premises, and you are not under arrest, they will not be inclined to advise you of your constitutional right to remain silent or to have counsel. Despite the lack of any caution from them, you do still retain these rights and should assert them.
WHAT CAN I EXPECT IN THE EARLY STAGES OF THE INVESTIGATION?
Consult with your lawyer regarding the timetable; he can advise you based on the complexity of your case and his previous experience with these same prosecutors. You should focus your energy to carefully select your defense attorney and see that he has all the resources necessary to prepare your defense. White collar cases are normally document intense. The government regularly spends many months preparing the indictment. The trials are often long and tedious. Answering this challenge will become your number one priority. Find a lawyer that will be willing to make your problem his priority also.