The Law and the Skin Trade in the Windy City

What to Do Before You Are Arrested:
Ten Rules That Could Save Your Life, Liberty, and Keep You Pursuing Happiness
Part Two

By J. D. Obenberger, Attorney at Law
© 1999 J. D. Obenberger, All Rights Reserved

There have been many articles written about what you should do after you are arrested. This is the second of two articles that concern themselves with what you should do and avoid before you get arrested, and what knowledge that you should have to prepare you for such an event.

I will repeat what I wrote last month: The leading cause of criminal arrest, prosecution, and conviction is stupidity, bad advice, and greed. Innocent people really do get arrested, they often plead guilty to things they didn’t do, or things that actually are not illegal, they get convicted in trials, and they go to jail or even to death row despite their innocence. And often they pave the road to their convictions with stupid decisions. I am writing these articles for those who are smart enough to take precautions and care before it is too late. The others will have a long time for regrets.

Rule 5. Understand Your Rights now so that you are prepared to exercise them if the need ever arises. Understand the right against self-incrimination. Take the time now to understand now the rights you have as an American. Take the time to fully understand that you do nothing at all morally wrong in invoking this right. In other countries, you have a duty to answer all the questions of the police and in those other countries you can be called as a witness in your own prosecution and forced to testify. Not in America. There is no duty on the citizen of our Republic to hand the police a ready-made case against himself or herself on a silver platter. The Police do not have to read you your rights every time they talk to you. They must do so only when they conduct what is called a “custodial interrogation”. When you are not free to come and go, when they are holding you, you are in custody. And no matter how informal they may seem in engaging you in conversation, if they are seeking answers, it is an interrogation. If both come together at the same time, the custody and the questioning, they must read you your rights. Even if you are never read your rights, you can still exert your right to remain silent. Never forget, no matter how bleak the situation may look to you, that if the people questioning you had all the evidence they needed, if they had all the answers, they would not be asking you any questions. Even when you are totally innocent of any crime, the fact that you are in custody suggests that the police have a different understanding, and especially when you are questioned about serious crimes, it is quite possible that whatever you say may be misperceived and misunderstood by them, convincing the police even more strongly of your guilt. Nobody ever got hanged for something he didn’t say.

Rule 6. Take the time now to understand your right to privacy. Both the Illinois and Federal Constitutions protect you against “unreasonable” searches and seizures. These provisions protect your bodily privacy against arrests without probable cause and against unreasonable searches of your person, your belongings, your vehicle, and the place where you live. Sometimes the police must have a warrant issued by a judge to arrest you or to search your belongings, and sometimes not. It is a very complex body of law, and even the Courts disagree from time to time about the scope of the protection which is given to your privacy. This article cannot explain the right to privacy in detail because that would take a book. You definitely should understand, though, that all of the protections given to your privacy by the constitution, by the blood of the patriots and the heroic veterans of all of our wars, can be waived and thrown away by your choice. You can waive your right to privacy, and this is often exactly what the police ask you to do. If a police officer asks whether he can inspect your trunk, your garage, your briefcase, if he asks whether he can search you, this should be a strong signal to you that he is unsure whether he has the right to do so, and he is trying to hedge his bet by obtaining your consent to the intrusion. If you do consent, there isn’t much chance that if the officer finds what he thinks are the fruits, instrumentalities, evidence, or proceeds of crime will be suppressed. If you are told that you might just as well consent because the officer can get a warrant anyway, if you are threatened with harm to yourself or your loved ones if you do not consent, these should also be signals to you that the officer is not as sure of his right or ability to make a lawful search as he might appear.

Rule 7. Find a lawyer whom you trust now, and develop a relationship with him. The worst time to make a decision about who will be your lawyer is when you are under arrest or facing bond court. There is too much going on too fast for you to make the best choice then. The lawyer who represents you has your future, your good name, and your very life in his hands. Take the time now to find a lawyer whom you can trust. A lawyer with whom you can communicate. A lawyer who listens to you and whom you can understand. You should look for common sense, good knowledge of the law, and a spirit within him that suggests that he is dedicated within himself to zealous advocacy on behalf of those who come to him for representation. In general, listen to what people say to you about their lawyers. One of the best ways to find a lawyer is from the recommendation of his clients. No lawyer will help you or advise you in breaking the law, but many times it is a lawyer’s advice that will steer you away from things that could get you in serious trouble.

Rule 8. Always take stock of the risks you are taking. Whenever you let someone into your car or your house, whenever you spend time with someone, whenever you take a job, you put yourself into intimate proximity that can have dangers. If the police stop your car with three of your friends aboard, and if a gun or drugs that you have never seen before are found on the floor, who do you think will get charged? Be aware that the people you hang with and the places you go to can get you into trouble just as much as the things you actually do. Understand the risks you are taking before you take them, especially with respect to those who are around you, and stay clear of risks you can’t assess and of those which can get you in trouble.

Rule 9. Understand yourself well enough to avoid situations that can lead to trouble. A little bit of introspection never hurt. Look at yourself honestly, look at the things that have gotten you into trouble in the past, and try to learn something from the experience(s), try to steer your life around the situations that lead to trouble. Each of us has human weaknesses. For an astounding number, it is alcohol, but every man has his own poison, and whether it be drugs, anger and violence, gambling, sex or stealing, if it is something you can’t control, and if it has gotten you into real trouble, you must take steps now or else it will get you into trouble again, and it may destroy your life.

Rule 10. Always be prepared for an encounter with the police. No man knows the day or the hour, because no one ever plans to be stopped by the police, or to be arrested at home, or to be present during a raid or the execution of a search warrant. When these things happen, the police know exactly what they will do, because they have been trained, briefed, and directed. You, too, should be prepared for the encounter. First and foremost, offer no physical resistance to any law enforcement officer. You have no right to resist even an unlawful arrest. Do not play games with the police in such an encounter. Keep your hands where they can be seen in any confrontation with the police. (This may save your life.) If you are pulled over in a vehicle, turn on the dome light before they approach and put your hands on the wheel. Have your passengers put their hands on the dash or wherever they can be seen. If they tell you to exit the vehicle, or to assume the position, do so immediately. If they want to cuff you, keep your hands still. While you break no law by protesting your arrest or that of a friend in a peaceful manner, it usually is not prudent to try to talk a cop out of an arrest he has determined to make, and when he inevitably tells you to shut your mouth (or some saltier version of the same), it is a smart idea to do so. Do not lie to any law enforcement officer. Do not run away. Do not throw contraband on the ground. Do not destroy evidence. The battle that is called prosecution and defense is not won or lost on the street, but in Court.

That having been said, whenever your consent is asked, be aware that this implies a choice, an option of refusal. If you open the door to police officers who are knocking, they will understand that as your consent to enter the house and to search it. In most cases, the police cannot enter your residence without 1) consent of a resident, 2) a warrant signed by a judge, or 3) emergency circumstances such as a violent crime in progress or a suspect running into the house. As we have said at length, you should consult with an attorney before you consent to any searches and before you answer any questions. If no one is asking for your consent to a search or entry, do not use any force to resist it. Try to make mental notes about what is taking place around you. Try to remember who did what. When you get to the station, ask for a phone call, use it to contact someone close to you, and get a lawyer.

This article is written only to generally inform the reader, and no attorney-client relationship is established by this article. If you have a legal question or a case, get in touch with an attorney and retain him. If you are arrested, do so at once.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com