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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: May 20, 2009

What Should You Do If You Are Being Arrested In Boston? The Boston Criminal Lawyer Blog Answers The Questions Of What To Do Until You Contact Counsel

Once again, you are being arrested in Boston. Maybe you are out for a “night out on the town” and the town, and its inhabitants, has turned on you. Perhaps you are carrying something that has been branded as illegal…such as a gun or some drugs. Maybe there is a warrant out for your arrest and, for some reason, those police officers on the corner are looking at you kinda funny. Whatever the circumstances are, members of law enforcement are coming to approach you and they are not baring gifts…except for the Commonwealth’s Bracelets of Shame. Oh, how you wish you had your lawyer standing right beside you.

But you don’t.

You are on your own until you can get to the experienced criminal defense attorney whom you long ago learned from this daily blog you should consult.

What to do.

In today’s weekly Thursday Attorney Sam’s Take, we look at these crucial moments during which time you will decide how to respond to the approaching officers. If you are a regular reader to this blog, you probably know a lot of what I am about to tell you already. However, it is worth reviewing, since getting it wrong could cost you a lot of years.

Last week we discussed some of the choices you might make from the perspective of bail. For example, you read how running from the police, or trying to out-fight them, is likely to impact on your bail conditions.

“But, Sam”, you ask, “what if I have contraband on me…or if I have a warrant out for my arrest? In those circumstances, I know that if I stay put, they are going to arrest me.”

Yes, I suppose that is true.

“So, I should give the officers a good shove and take off, right?”

Well, that would be a decent approach if your goal is to make the situation much worse for yourself. Assuming that is not the objective, though, it would be a bad approach.

If there is a warrant out for your arrest, or you absolutely know that the officers are going to take you into custody, then guess what? You are going to be taken into custody. If you run, hide, fight or learn to fly…you are going to be taken into custody. The question becomes how to best cut your losses and minimize the damage.

“I gotcha, Sam”, you smile and say. “I should stay there and give them my side of the story regarding whatever they want to arrest me for. After all, I can outsmart them, right?”

Hmm. If your goal in that case is to pave the way for a “Thank you note” from the prosecution for giving them statements to use against you in court that is a marvelous idea.

The Miranda Rights you have heard so much about explain to you that you have a right not to speak with the officers and actually reveal to you that whatever you do say can and will be used against you later on. There are a variety of ways the statements can be used against you that have not even occurred to you if you do not handle these types of cases, on either side, each day. Therefore, along with not fighting or fleeing is not offering your version of events.

Now, occasionally, there are cases wherein the police, after having decided who they are going to arrest, change their mind. Those cases are in the distinct minority. Certainly if you have a warrant out for your arrest, or are carrying contraband, there is no question what they are going to do. Likewise, if you have been pulled over and know you have been drinking.

“Wait a minute”, you interject. “Isn’t it true that it is not, per se, illegal to have a drink and then drive…that it is only illegal if you are driving under the influence?”

Yes, that is correct. However, if the police have pulled you over, and you know you have had a few drinks, do you really want to trust your own judgment about whether or not the alcohol has effected you over the fact that there was something that brought you to the officers' attention? Further, can you be sure that you will absolutely pass field sobriety tests and a breath test?

By the way, you have the right not to perform either tests.

The bottom line is that statements like, “Yes, I have been drinking…but I only had two drinks” do not help your case. Silence does.

Now, I have told you that, as the police come to arrest you, you should not try to out-reason them, out-fight them or out-run them.

So, am I telling you to become a statue and be completely nonresponsive?

No.

You want to be polite and let the officer know that you know that he is in control of the situation. You would be surprised at how far that can take you. If he asks your name, or for your license, you quietly comply. Adding “Yes sir” does not exactly hurt either.

If the questions start to get into the event at hand, and the officer asks, for example, “What were you going to do with this?”, as he holds up the firearm he found in your pocket, that changes the situation. You do not simply offer, “Well, sir, I am a drug dealer, you see. In my line of business, it is always wise to carry protection, don’t you agree?”

In other words, that is when you indicate that you do not wish to answer questions and want a lawyer. In fact, I usually tell my clients to blame me if they feel the need and say that they would love to talk about everything, but they know this crazy attorney who is always jumping up and down yelling “Don’t talk! Don’t talk!” and so, they feel they have no choice but to follow my advice.

Likewise, should you an officer come to your home without a warrant and ask to “look around” the place, and you know there is a kilo of cocaine laying safely by the sofa, giving consent with a hardy, “Sure, Mr. Policeman. I have nothing to hide!” is unwise.

Should the officer have a warrant, you have to let him in. If he notices that kilo by the sofa, do not exclaim, “Hey! Where did that come from?” or anything else. It is time once again to remain silent about it and say you want a lawyer.

There are those who fear that asking for a lawyer will damage them later on in court. However, the Commonwealth cannot use your request for a lawyer against you. It is inadmissible at trial because you were merely exercising your Constitutional rights.

“Ok, Sam. I see how all this works if I was actually guilty of something. But what if I have not done anything wrong? Obviously, I am not going to try to flee, but shouldn’t I answer all the officer’s questions?”

Well, that is a tougher situation, but, in most cases, the answer is still the same.

Words get twisted. People get misunderstood. Finally, the police may well have already decided what the “truth” is by talking to someone who has made accusations against you. In such a case, your statements are not likely to help you.

One more question remains. You want them to know your side of the story. After all, you feel you are the victim here. Shouldn’t you tell them that?

In most cases, no. That is what you use that experienced criminal defense attorney for. That is usually what trials are about. If you are indeed a victim, there is always a chance to try to bring a complaint after the fact, although you would want to jump on that opportunity as soon as possible.

What you do when law enforcement comes a-calling has a direct relationship with what happens next…and what happens further down the line. Remember that it is critical for you to communicate to the officer that you know that he is in control of the situation.

Be polite. Be compliant. And, other than that, be quiet.