July 6, 2008
Legal Department
Knowing When to Bend Like a Reed In the Stream...
Back when I reviewed Barry Cooper's Never Get Busted Again DVD, I wrote this about the third chapter:
This chapter also has what's probably the most controversial piece of advice: Don't refuse the officer's request to search your car. That goes against everything I've ever read. However, on reflection, Cooper's argument isn't totally insane: As former defense attorney Ken Lammers has pointed out many times on his blog, you don't really have any effective Fourth Amendment protection against a search anyway when you're in your car.
By refusing to let a cop search your car, you've all but told him that you have something to hide. You could quickly find yourself surrounded by six cops and a drug-sniffing dog, all willing to spend as much time as it takes to find a reason to search your car without your permission. According to Cooper, you're better off hiding the drugs really well and letting the cop make a quick but unsuccessful search. That makes a kind of crazy sense, but I know people who've refused a search and the cop just went away.
I was certainly right about that: This was the most controversial part of the video (at least in the libertarian-ish blogosphere---I imagine drug warriors hated other parts of it). Jon Katz weighed in on it, Loretta Nall trashed it, and Scott Morgan at FlexYourRights really laid into it. Barry Cooper himself turned up at all these sites to mount an energetic defense.
I ended up almost defending Cooper's position, not because I believed he was right, but because his opponents seemed to be missing his point.
Criminal defense lawyers everywhere tell you never to consent to a search. In fact, many of them tell you to not even talk to the police. That's very good advice, but it's often less than completely helpful.
First of all, criminal defense lawyers only see the people who talked to the cops and got in trouble. The people who talked their way out of trouble don't need lawyers.
Second, refusing the cops is hard. Really hard. And defense attorneys writing for general consumption almost never give you advice about how to actually do it. They explain the importance of not giving up your rights, but they rarely have practical advice about how to manage a stressful encounter with a hostile law enforcement officer.
(Two obvious exceptions are the folks at FlexYourRights and the Just Cause Law Collective.)
Third---and this was Barry Cooper's point---refusing to talk to the cops will make them suspicious. Legally, you have every right to remain silent, refuse searches, and refuse to explain yourself. You may not even have to identify yourself. But all of these things will make the police suspect you of something illegal. It may not be reasonable suspicion, but it could be enough to make the cops spend a lot more time with you.
Perhaps a less confrontational approach would help. Military philosopher Sun Tzu advocated a style of warfare that defeated the enemy with the least amount of fighting possible: "Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting."
Cooper's advice to consent to searches---and most of his DVD for that matter---can be defended as the application of this principle to encounters with suspicious policemen: The best way to keep the police from bothering you is to keep them from wanting to bother you. Make the cops think they are wasting their time. You do that by doing what most innocent people do: Cooperate.
(Be warned that Cooper's advice to consent to a search depends on two assumptions: First, that you have followed the rest of his advice and hidden whatever you're hiding well enough that a cop won't find it with a quick search---if you have drugs in your coat pocket, you're out of luck---and second, that your police force has little respect for your rights---like Cooper's former Permian Basin Task Force---and won't just leave you alone when you invoke them.)
To summarize: Defense lawyers expect the police to respect your rights and respect your refusal to cooperate. Ex-cop Barry Cooper expects the cops to trample your rights, so you might as well act like you have nothing to hide. I suspect the truth is some combination of these views.
I'm bringing all this up again because of something I read in the blawgosphere a few days ago. Criminal defense lawyer Jon Katz---someone very aware of the rights of people being questioned by the police---was questioned by police.
He was at the airport, waiting for some visitors to arrive on a delayed flight, so he decided to practice his t'ai chi in an out-of-the way place. (He was doing this.) Perhaps someone found this suspicious, because a few minutes later some cops caught up to him. Here (slightly simplified) is the part of the conversation I found most interesting:
Cop No. 2 (playing the good cop role): Excuse me sir. Would you mind stepping over here? (Another choreography direction from the cops while I am not free to leave.) All we want to know is what you were doing if you are willing to tell us.
JK: (Do I stay silent, which I tell others to do when they are suspects, or do I wear the hybrid hat of a criminal defense lawyer who stands up to cops all the time for my clients, and someone wanting to be there when my visitors arrive at the gate (how often do cops try to divide and conquer like that?)? It's the Chinese martial art of t'ai chi. I hadn't gotten around to doing it yet today.
Cop No. 2: (Already nodding her head knowingly before I finish talking). I thought so.
JK: Am I free to leave? (One of the Busted video's most essential lines.)
Cop No. 2: Yes.
Katz's explanation for why he cooperated with the police is that the second cop seemed friendlier, and he was worried that if he didn't answer their questions, the cops would keep detaining him.
Fair enough. But I'll bet he hears that same explanation from a lot of his clients.
I don't mean to pick on Katz---he's a friend of the blog---but frankly I feel a little better about my own obsequious performance with the police after hearing that even seasoned defense lawyers don't always handle it by the book.
Update: I notice that Katz ends his post with this:
Will I continue practicing t'ai chi in airports, empty subway platforms, outside courts, in parks, and in my own backyard? Absolutely. Join me?
Jon, T'ai chi looks like too much work for me, but I'll tell you what: Next time I'm in D.C., meet me at the airport. You can do suspicious t'ai chi and I'll take suspicious pictures of you. Maybe we'll both get a story worth posting about.
You do have a bail bondsman you work with, right?
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