The Law and the Skin Trade in the Windy City

If You Get Arrested: Sixteen Practical Tips

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

While it is impossible to lay down fast and firm rules that will help everybody in every arrest, there are a few basic principles that will help the large majority of people most of the time they get arrested. Obviously, you should consult with a lawyer at the first chance you have to get particular and specific advice for the situation you find yourself in.

  1. Keep your mouth shut. Once you are arrested, the odds are close to nonexistence that you will be able to talk your way out of this situation. If there is any pretense of an investigation, you may be led to believe that you can talk your way out the door. Commonly, this is just a trick to get you to make a statement that will damage you. You have no legal or moral duty to hand the police a case against you in your own words on a silver platter. You violate no legal or moral duty by making the police do their own work if they want to have you prosecuted.
  2. Keep your mouth shut. You are not a lawyer and you have not had the luxury of reading the complaint at this point. While you may think that what you are saying will help you, it may actually make your position worse. What you say actually can lead to suspicion of new and different charges. Police officers are not lawyers either, and even a brilliant defense may leave them unimpressed. It is a common interrogation technique to accuse you to your face of something far more serious in the hopes that you will attempt to defend yourself, and in the process, put the noose around your neck for what you are actually accused of.
  3. Keep your mouth shut. No one ever got hanged for anything he or she didn’t say. Law enforcement officers know this better than anyone else. They are often amused at how seldom suspects insist on their right to silence, and how easily suspects are tricked into making damaging statements. By providing your proposed defense to the police, you will be educating the prosecutor as to where your defense will come from, far in advance of trial, and help him to craft a prosecution that avoids or defeats your defense.
  4. Keep your mouth shut and consent to nothing. The people who are arresting you do this for a living. They are trained in making arrests. Some of them are pretty good at it. You are playing on their turf, a place where they know the lay of the land, the ins and outs far better than you do. What you know is limited and some of what you think you know is downright misinformation. You have anxiety or you are downright frightened. This is not a time to make bold decisions. If they ask for your consent, it means that they either need your consent to do what they want to do or they have some doubt about their right to do it without your consent. By consenting, you destroy your lawyer’s best line of defense in keeping adverse evidence out of court.
  5. Keep your mouth shut and consent to nothing. Sure, there are consequences to refusing consent. If the officer has probable cause to pull you over, and probable cause to believe that you are drunk, your refusal of a breath test for alcohol will get you a suspension of your license. But your consent may produce evidence of guilt, evidence that may simply be wrong, but almost impossible to overcome. And to get to the point where he offers the breath test or blood test, he must have probable cause of your intoxication. By refusing to perform “field sobriety” tests (walking the line, standing on one foot, etc.) the officer will be forced to decide if he has enough for an arrest based on what he has seen of you and of your driving, without the acrobatics on the shoulder. Sure, you run the risk of looking guilty by refusing, but especially with those who are overweight and poorly conditioned, people who are entirely sober can have much difficulty passing these tests. If the officer wants to search your house or garage, and if he has probable cause, and if he cares enough, he can get a warrant to search without your consent. Maybe he doesn’t have probable cause. Maybe he doesn’t care enough. Maybe the search will never take place. What’s in it for you to waive your right to privacy? Often, nothing. If they want to search your house, let them do their job: Let them go in front of a judge and get a warrant.
  6. Keep your mouth shut and consent to nothing. Without your consent, without a warrant, a car can be searched only on probable cause that it contains the fruits, evidence, or instrumentalities of crime, or if you are close to the car, pursuant to an arrest based on probable cause that an offense was committed and that you were the perpetrator. The number of convictions stemming from evidence obtained from a consensual search, where there was no probable cause, is staggering. In other words, if they just said “No”, there would be no evidence of guilt.
  7. Keep your mouth shut and do not sign a statement. Don’t sign a statement. No one will ever give you a typewriter in the stationhouse and ask you to write up your version. The interrogation will be aimed at showing you to be guilty or a liar, and so will the statement which they prepare for your signature. It will be written in their words. They will often deliberately type in errors, so that you must initial the changes, as evidence that you read this document closely and had no problem with what remains after the correction. Later, you will be amazed at the gross misstatement of what happened that bears your signature. Just don’t do it.
  8. Don’t Lie to Police Officers. Ever. Not even once. Many experienced detectives have no problem when a suspect lies. They may even encourage the suspect to make a self-serving statement that is easily proven to be false, because after the suspect makes such a transparent lie, no judge or jury will believe him on anything else, and he will go down. If there has been a shooting, to deny that you were there is to destroy any chance that anyone will believe you later if you say you acted in self-defense. You destroy your credibility by lying, and you won’t get it back. By lying, you tie yourself down to the lie and you may destroy any real defense you have. Finally, it is a crime to lie to a police officer in any investigation, even an investigation about you.
  9. Don’t Resist Arrest. Resisting arrest is a crime. It makes you look more guilty. Even little things, like moving your hands away when the officer wants to cuff you, against his direction, can amount to this crime. You don’t need the complication to your case, and you will gain nothing by resisting.
  10. Don’t argue with the officer. Arresting someone is stressful to police officers, too. You are not likely to see an officer’s most kind and compassionate side at this moment. He lives with the fear that one of these days, some suspect will hurt or kill him. It might be you. Don’t get into any long, involved, or heated argument with the arresting officer, do not swear or curse him, do not threaten him, and do not insult his female relatives. Like it or not, he disagrees with you, he has a job to do, and he thinks that arresting you is his job at that particular moment. There will be absolutely no advantage to you by increasing his degree of stress. While arguing with the officer is not a crime, and it is not resisting arrest to disagree verbally while you comply with his directions, it just isn’t smart.
  11. Do not run away from a police officer. Yes, America is still a free country, and yes, at least in theory, you have a right to walk away from a police officer unless you are detained or arrested. However, in practice, the U.S. Supreme Court has determined that, at least in some neighborhoods and under some circumstances, like drug-dealer corners, running away can give the officer probable cause to arrest you. It does not work to your advantage in the station house, later, that you tried to run away. Trust me. I have it on good authority.
  12. Do not throw away or throw down any contraband while the police are after you. The drugs, gun, knife, wallet, credit cards, or other contraband that a suspect tosses while he is being chased or when he is arrested are considered to have been abandoned. That means that you have surrendered any right to privacy in your person or auto. When the officer picks it up, he doesn’t need probable cause. Also, you are establishing “guilty knowledge” of what the item is and of its contraband nature. You may actually help the prosecutor by throwing contraband away.
  13. Co-operate with the police in providing your identity information. You will get processed faster and make bail faster by providing the officers with all of the identity information that they request. You will not be released until the police satisfy themselves that they know who you are and that there are no outstanding warrants or other holds on you. Information about prior arrests ties you into your IR, the number that Chicago Police use to identify you, and providing this information may hasten the process of your release.
  14. Don’t talk about yourself to other prisoners. In a police lockup or in a jail, you will may run into two dangerous kinds of people. Desperate people who know that they are going down and are looking for any leverage they can get, and undercover police officers posing as prisoners.
  15. Don’t try to make a deal with the officers. Police officers don’t have the authority to grant immunity or enter into plea bargains. Only prosecutors can do that. If you are going to have a deal with any teeth, it must be worked out by your attorney with the prosecuting authority.
  16. Request the opportunity to make arrangements for a lawyer immediately and do not back down. You have the right to make a reasonable number of phone calls. This right is renewed every time that they move you to a new place of confinement. In practice, you may only get one call. Use it wisely to contact someone who can make all necessary notifications, to raise bond if necessary, and to secure a lawyer for you. In any serious case, it is important to get the lawyer to see you immediately, to advise you and to prepare for a bond hearing. You need objective, trained, and experienced advice, and you will find this among the members of the profession of law. Make sure your lawyer knows all the facts and don’t leave him with blinders. If he falls in the ring by a surprise punch he didn’t see coming, you’re the one who will hit the floor, and there may not be a mat.

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