Encounters with Law Enforcement: A Criminal Defense Perspective
Posted on by Michael Lowe.
Seven Steps to Take When Police Show Up at Your Home or Work or Call You on the Phone
More and more often, I pick up the phone to hear someone wondering what to do after local police or some other member of law enforcement (e.g., agents of the FBI, DEA, etc.) has surprised them with a phone call or by showing up to ask them questions at home or at their place of work.
Given the regularity with which I am getting these kinds of phone calls, I thought it would be a good public service to provide general information from a criminal defense perspective about these informal and unexpected encounters with law enforcement. Accordingly, this is an article containing general considerations from an experienced, Texas Board Certified criminal defense lawyer about what to do when any law enforcement agent shows up to your home or place of business or calls you on the phone.
- Please note that this article does not create any form of attorney-client relationship with any reader. The only way to establish an attorney-client relationship with me is if we meet, discuss the particular circumstances of your situation, and thereafter personally enter into a formal legal representation agreement.
Interacting with Law Enforcement: Fourth Amendment Protections
Anytime a member of law enforcement interacts with someone, the constitutional provisions against illegal search and seizure under the Fourth Amendment of the U.S. Constitution must be considered, where a basic privacy protection is provided:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
There are three overall ways an individual will interact with a police officer, sheriff’s deputy, or a state or federal agent, either in: (1) an encounter; (2) an investigative detention; or (3) an arrest. State v. Perez, 85 S.W.3d 817 (Tex. Crim. App. 2002), citing Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim.App.1996). As a general rule, dealings with law enforcement must pass constitutional muster and this is true for any detention as well as any arrest. It is not true, however, for the police encounter.
Encounters: No Constitutional Protections
An encounter is totally free from Fourth Amendment considerations. As Francis explains, using the definition of an encounter adopted by the Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), (citations omitted):
“An encounter is a friendly exchange of pleasantries or mutually useful information. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification …. In an encounter police are not required to possess any particular level of suspicion because citizens are under no compulsion to remain.”
The Danger of Evolving Encounters
The risk in any encounter between an individual and law enforcement is that the interaction can change and evolve as things progress. In a matter of minutes, an initial consensual encounter can turn into an investigative detention. The detention, in turn, can result in an arrest.
From a criminal defense perspective, the speed of evolution of an initial encounter to a formal arrest is one of the main reasons that most defense attorneys urge people never to talk with the police in the first place.
- For more on this issue, see my earlier video and read my discussion in Don’t Ever Talk To The Police! Never Give A Statement to Law Enforcement in Texas Criminal Investigation.
What Happens in a Police Encounter?
In the “friendly exchange” of a police encounter, a police officer, sheriff’s deputy, or other law enforcement agent initiates communication with an individual. It can be for any reason. It can be in person or over the phone. The encounter may or may not be a conversation that happens when a search warrant is being served.
Police officers, sheriff’s deputies, federal agents: they all have the freedom to conduct encounters with anyone, anywhere, and at any time. If the individual feels free to leave and free to not answer or respond to any questions or comments made by the officer, then the communication remains a constitutionally unprotected police encounter. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995).
Under both state and federal law, law enforcement officers can approach anyone they like without probable cause or reasonable suspicion, and start asking questions or even requesting to do a search. Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); State v. Velasquez, 994 S.W.2d 676, 678 (Tex.Crim.App.1999).
These encounters do not have to be justified by the law enforcement agent. They don’t have to give a reason or explanation. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); State v. Larue, 28 S.W.3d 549, 553 (Tex.Crim.App.2000).
Furthermore, it does not matter if being approached by a police officer or federal agent is embarrassing or inconvenient. Being approached by someone in law enforcement may be awkward or even humiliating – particularly if it happens at work, or in front of parents or friends—but this does not make a difference under the law. State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex.Crim.App.2008).
From a criminal defense lawyer’s viewpoint, police encounters are extremely risky for the individual and never in their best interests. What can be done here? There are two basic scenarios to consider in these “friendly exchanges” with law enforcement, and the advice is basically the same in each scenario.
Two Criminal Defense Scenarios of Police Encounters
Remembering that police officers, sheriff’s deputies, and federal agents have varied levels of interest in investigation witnesses and criminal suspects, let’s consider: (1) the phone call; and (2) the uninvited visit.
Scenario One: The Phone Call
The phone call encounter is most likely going to be a state or local law enforcement agent. Federal agents rarely initiate contact over phone or email.
Investigations are happening all the time, and caseloads can be voluminous. The police officer or sheriff’s deputy may just make a phone call to someone considered to be a person of interest.
- Who is a “person of interest”? Essentially, it is someone that law enforcement suspects, rightly or wrongly, of having committed a crime.
First thing to know: the phone call may be recorded. However, it is almost impossible for the prosecutor to use recorded phone call conversations later, in the courtroom. It is not good evidence in court. This is because evidence must be authenticated and it is very difficult to authenticate the identity of the person whose voice is heard speaking with the police officer on the phone.
Of course, that recording might get admitted if there is no criminal defense objection to its admissibility. Learn more about how evidence gets booted from the prosecutor’s case in our discussion, What Is A Motion to Suppress?
Another thing to remember: there’s always an agenda supporting that phone call. Anytime someone gets a phone call about an offense from any member of law enforcement agent, that agent or officer has a hidden agenda.
Maybe the purpose for the phone call is to build enough trust so the agent can persuade the person to come down for a visit at their office. The agenda is to facilitate and schedule a meeting.
That law enforcement agent will use various tactics to persuade the person to come down and see them. They have honed their skills in getting people to comply with their phone call suggestions when they don’t have any power to force a meeting.
The most common tactic that I’ve seen used in Texas is a subtle threat. The agent will mention they are conducting an investigation about you and they need to know more information. They will say they want to hear your side of the story before they decide whether to issue a warrant or drop the case.
In other words, the implication will be: if you don’t comply, and come to my office and give me a statement, I will have no choice but to issue a warrant for your arrest.
Of course, it’s natural to want to defend yourself. Most folks believe they will get arrested BECAUSE they didn’t give a statement to the law enforcement agent. But that isn’t the case.
Here’s what is usually going on. Typically, the agent is calling to get a statement because he (she) feels that a statement is needed to either establish probable cause for an arrest or to bolster their case investigation.
If the agent believed he (she) had all the evidence they needed, they would likely issue a warrant without any prior contact. They would not make the phone call.
This is especially true in violent crime cases. However, it can also apply in financial crimes and other fraud-related charges.
My Seven Step Suggestion to the Uninvited Encounter
What to do? From my vantage point, there are seven (7) simple steps that can be undertaken in these uninvited phone call scenarios.
1. Act surprised and dumbfounded about the call.
Even if you know why the agent is calling you, pretend to have no clue about why they are calling you. It is common for the agent to say stupid provocative things like: “You know why I’m calling ….” Don’t fall for this silly trap! Keep your cool and act surprised.
2. Don’t answer any questions.
Be polite (or not). Just don’t answer any of their questions. You don’t have to do so.
3. Don’t volunteer any information.
Even basic information like phone numbers, emails, website domains, social media handles and other online accounts can be very incriminating in certain cases. Just because you know this stuff does not mean that you are legally required to volunteer it in the phone call.
4. Don’t mistake friendliness with good intentions.
Most highly trained agents are skilled in befriending people and winning their trust. Don’t fall for it. Their job is to gather information that will lead to your arrest and indictment. Law enforcement agents can be good people but that’s not why they are being so affable toward you.
5. Let the officer speak and write down all of their information.
Make sure you get their name, phone number and/or email, and the agency for whom they work. You do have a right to identify the law enforcement agent who has called you. Also, taking notes of everything they tell you in that call can be very helpful to you – and your defense lawyer – later.
6. Firmly let the agent know that you will have your lawyer contact them.
You don’t have to have retained a criminal defense lawyer before the phone call. You can state that your lawyer will contact them, and then get your attorney on board.
7. End the conversation.
There’s no law that requires you to stay on the phone until the law enforcement officer is ready to hang up. From a criminal defense perspective, it is best to end the phone call encounter as soon as you can.
Scenario Two: The Uninvited Visit
There are two different situations when law enforcement may show up unannounced at your home or your place of work. The first is to run a search warrant. They are there to search for physical evidence.
1. Uninvited Visit for an Interview
The second scenario is they show up to interview you, and to try and get your voluntary consent for a search of your home, car and/or electronic devices. (Of course, there can be overlap in these two different scenarios.)
In the second scenario, if the agent is a federal agent (e.g., OIG, Homeland Security, FBI, DEA, IRS, US Postal Service or BATF) they may also serve you with a target letter from the prosecutor at the Office of the Attorney General (AUSA) handling the investigation.
- For more on target letters, read: Federal Investigations: Target Letters, Proffers, And Plea Deals.
In these cases, the agent will have already gathered significant information about you and your activities. They know a lot and they will not disclose everything they know to you. It is never wise to communicate with these investigators.
From my perspective, NEVER attempt to finesse these agents. You will not be prepared to speak to an agent in a situation like this.
Instead, it’s best to follow the seven steps listed above in dealing with surprise phone call encounters. The agent will not be surprised if you handle yourself in this manner.
In my experience, the agent will gain respect for you if you handle the situation in a disciplined manner and allow your attorney to speak to them instead.
2. Uninvited Visit with a Search Warrant
Search warrant situations are much more stressful. Without warning, someone is entering your home or office or job site and looking through your things.
You will feel powerless: the agent will enter your home or work without asking permission. They have a warrant that allows them to do so. It’s an official document signed by a judge.
Please be aware that they may not even show you the warrant for some time. Meanwhile, they may be doing things like grabbing all your devices (phones, tablets, laptops, etc.) and demanding to know all the passwords to get into the devices.
What’s going on here? The agent may be looking for drugs, evidence, or other electronic records to prove a suspected case.
Since law enforcement has appeared, uninvited, with a search warrant, you do know one thing: the agent already has established probable cause of a crime sufficient to get that warrant, as well as probable cause that evidence of that crime is inside the search premises (your home or place of work).
- For more on probable cause, read: What Is Probable Cause For Police To Arrest In Texas?
What to do when faced with an uninvited visit where they have a search warrant? First, it’s wise to follow those same seven (7) steps listed above for the phone call scenario.
Second, it is never a good idea to be cooperative here. From my viewpoint, DO NOT try to talk to the agents or explain yourself to the agent in these cases. You are not required to cooperate.
It’s wise not to answer even innocuous questions about emails, passwords, user logins, or ownership/use of any electronic device. It’s not a good idea to discuss who pays for internet or whose name is associated with the internet service. It’s not smart to discuss which visitors have been to the premises.
They may ask you about all this stuff. All of the questions are designed to incriminate you. You don’t have to help them build their case. Silence is smart in any search warrant uninvited encounter scenario.
For more on search warrants, read:
- Illegal Search Warrants: Challenging the Underlying Affidavit
- Search of A Residence in Texas: When Police Search Your Home
- Challenging the Search Warrant in Texas: Illegal Search and Seizure.
Police Encounters and Criminal Defense
Law enforcement in real life is not the same as it is on television or in the movies. Anyone who is vulnerable to being investigated, much less charged and prosecuted for serious crimes under either state or federal law needs to understand how any encounter with law enforcement can endanger their rights and freedom. The agent may be nice, or the officer may be intimidating. Either way, encounters with law enforcement – from a criminal defense perspective – are never in the best interests of the individual.
I can say from personal experience that those individuals who gave out the least amount of information and cooperated the least with law enforcement have tended to get the best results on their case after I’m involved in their criminal defense representation.
Of course, there’s no certainty with any case. Life does not come with guarantees. But I can safely say that the averages will be in your favor if you follow my Seven Steps whenever faced with any kind of police encounter, while getting a criminal defense lawyer to advocate on your behalf as soon as possible.
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