Is There a Difference between Police Actions That Are Allowable and Those That Are Justifiable?
Interviewer: What are some other things that a police officer can and cannot do, but will do anyway?
Jerry Novak: The Supreme Court and the US Supreme Court permit police officers broad discretion to do almost anything. The question then is, is it justifiable?
The Police May Stop You for Almost Any Reason
Again, they can stop you for almost any reason. You’re driving too fast or you’re driving too slowly. You’re weaving within your lane. You waited too long at the stoplight. There’s something hanging from your mirror.
You’ve got a taillight or a license plate light out, or a headlight out. They can just randomly run license plate numbers, and you may come back suspended or revoked, or you may have an insurance violation, or something that gives them that reason to stop you.
Again, in Illinois, even if the police officer runs your plate, and the plate comes back belonging to a suspended driver, even if the police officer entered in the wrong information, the situation quickly escalates.
The Police Are Still Allowed to Claim Reasonable Grounds, Even If It Originated as Their Mistake
For example, let’s say your license plate is ABC123, and the police officer, by mistake, enters into his police cruiser computer as ABC133. If it comes back as an invalid plate and, of course, it is going to come back not registered to that vehicle, because he got the plate number wrong, that has been upheld in Illinois as reasonable grounds to make a stop.
The Moment You Begin Answering Police Questions, You Are Providing Them with Evidence
They can get away with a lot, which is why it’s always in your best interest to reply, when they say, “Where are you headed tonight?” “I’m sorry, sir. I don’t wish to answer any questions.”
The Police Are Trained to Ask Questions That Elicit Incriminating Answers
The minute you start answering questions, you start blocking yourself into a corner. “I’m coming home from work.” “Okay. Well, were you coming home from work, or were you really coming home from your girlfriend’s house?” Or, “Were you coming home from work and you stopped at your girlfriend’s house?” That can really be taken out of context.
I had one case where a police officer stopped a client and said, “Where are you going?” He says, “Well, I’m going home.” On the police report, the police officer wrote, “When I asked him where he was going, he told me he was going home.
However, he was headed in the wrong direction.” What he didn’t ask my client is, “What’s your itinerary?” Yeah. He was going in the wrong direction, because he was going one block out of his way to stop at the 7-Eleven to get a gallon of milk, before he turned around and went to his ultimate destination, which was home.
While You Should Supply an Officer with Any Requested Identification, Decline to Answer Any Questions
It’s really easy to innocently answer those questions, and have those facts used against you, which, again, is why I always advocate, “I’m sorry, sir. I don’t wish to answer any questions.” “Where are you going?” “I’m sorry, sir. I don’t wish to answer any questions.”
“Had anything to drink tonight?” “I’m sorry, sir. I don’t wish to answer any questions. Want my license and insurance card? No problem, sir. Here you go.” “What am I doing out this late at night? I’m sorry, sir. I don’t wish to answer any questions.” “You smell an odor? I’m sorry, sir. I don’t wish to answer any questions.”
A Non-Reply Works Better than a Denial
I wouldn’t even deny it. I think your best answer always is, “I’m sorry, sir. I don’t wish to answer any questions.” Anything you say marries you or locks you into that answer, because if you then answer any differently at your trial, then you’re going to be impeached by a previous answer that you said earlier that may have contradicted your own testimony at the hearing.
A quick wrap up—the police can get away with almost anything.
Will Refusing to Answer Questions Anger the Police?
Interviewer: The way you put that, would that upset an officer? Would that still lead to an arrest?
Because Police Have Complete Control over the Stop and Arrest, You Must Retain an Attorney to Advocate and Defend
Jerry Novak: The problem with the police is out in the street they have all the power. The people have no power in the street. The only place that the people have power is when you hire me, and I go into court, and I’m your freedom fighter, and I have all the power in the courtroom, because I can then be detain that police officer on the witness stand, and bring out the truth.
Let’s face it. If you start answering questions, you’re going to get arrested. If you don’t answer questions, you’re going to get arrested. Ask yourself a question. Would I rather get arrested and give them all sorts of evidence to use against me, or would I rather be arrested and give them absolutely no evidence to use against me? I think the answer is a no brainer.
The Best Way in Which to Answer Police Questions
Interviewer: What exactly should you say to the police?
Avoid Using the Word “Refuse”
Jerry Novak: First of all, I would never use the word, “I refuse.” That phrase that I would never use would be, “I refuse to answer questions,” because that leaves a bad taste in a jury’s mouth, because they say to themselves, “The only people that refuse to answer questions are guilty people.” We don’t want to automatically be lumped into that.
We certainly don’t want to say, “I’m taking the fifth amendment,” because that’s the right not to incriminate ourselves. We don’t want to use those words, and it’s really important.
If you say something like, “I’m sorry, sir. I don’t wish to answer any questions,” you’ve really accomplished the same thing, without putting yourself under the umbrella that the jury looks at that the criminals are hiding under.
Using Respectful Phrasing Can Benefit Your Case at Trial
Let’s say you are stopped, and you take my advice and say, “I’m sorry, sir. I don’t wish to answer any questions.” The police officer comes to court and the state’s attorney says to him, “Mr. Police Officer, when you stopped Dan Driver and you asked him if he had anything to drink or if he consumed any drugs, what was his reply?” “He refused to answer the question,” or, “He invoked his fifth amendment right to remain silent. He didn’t want to incriminate himself.”
That’s bad, but that’s not what you said. You said, “I’m sorry, sir. I don’t wish to answer any questions.” On cross examination, I can come back and say, “Officer, did he use the word refuse? He didn’t use the word refuse, officer, did he? As a matter of fact, he said, ‘I’m sorry, sir.’ He was very polite, wasn’t he?” “Well, yes, he was.” “In fact, he said, ‘I’m sorry, sir. I don’t wish to answer any questions.’ Isn’t that really what he said, Officer?” “Well, yes.”
Avoid Saying You Are Invoking the Fifth Amendment
“He didn’t say he was invoking the Fifth Amendment—did he?” “No.” “He didn’t say he didn’t want to incriminate himself, did he?” “No.” “What he said is, very politely, ‘I’m sorry, sir. I don’t wish to answer any questions.’ That’s pretty reasonable, isn’t it, Officer?”
What’s he going to say? It’s not reasonable?
He’s going to say, “Yes, that’s reasonable.” That’s great, because now in closing argument in front of the jury, “Ladies and gentlemen, even the police officer said that Dan Driver’s answer was reasonable, and that he answered it in a reasonable way, politely. “I’m sorry, sir. I don’t wish to answer any questions.”
Tone and Inflection: Speak to the Police in a Courteous Manner
It’s very important, not only what you say, because, remember, there’s, also, audio and video recording. It’s not just what you say, but it’s how you say it. That tone and that inflection will make a difference, because if you say to the officer, “I’m sorry, sir. I don’t wish to answer any questions,” with an exclamation point, with a gruffness, roughness with an arrogance, that’s not going to go over well with the jury.
Think Defensively the Moment You Are Stopped by the Police
You’ve got to remember, the minute you’re stopped, you need to start going right into defensive mode. You’ve got to lay a foundation for protecting yourself.
I mean, think about it. Didn’t the police officer go to school to become a police officer? Didn’t the police officer go to school to detect DUI drivers? Didn’t the officer go to school to learn how to administer, demonstrate, and use and employ these standardized field sobriety tests?
What’s the purpose of all that? The purpose is to arrest you and have a successful prosecution. What have you done to prepare yourself, to defend yourself against false allegations? Nothing. We think innocence will protect us. Guess what? It won’t.