By: Jeremy Rick
An ancient Chinese safe named Lao Tzu once said: “He who knows, does not speak.”In the words of Bellingham-based attorney Sean McKee: “The right to remain silent is the best piece of legal advice anyone could get.”
Whatcom Community College recently held a discussion on interacting with law enforcement officers. McKee, alongside fellow attorneys Aaron Lukoff and Jeffrey Lustick, and Bellingham police officer Todd Osborn, relayed legal pointers to attendees at the April 22 “Know Your Rights” event in Heiner Auditorium.
“If you take nothing else out of this forum, do not waive your rights,” Lustick said in his opening remarks.
One must, however, understand the rights individuals are ensured under Washington state law in order to heed Lustick’s words.
“The hardest thing I ever do is defend an innocent person,” Lustick said, adding that “sometimes they dig a hole deeper, and deeper, and deeper.”
Innocent people often “admit too much” and mistakenly incriminate themselves because there is a lack of legal education available to the public, McKee said.
“There is, generally, just no education about it,” he said, and researching the law alone “can be hard to decipher.”
Further complicating the matter, police are not required to be honest with civilians.
“I can lie to you if I want,” Officer Osborn said. “I can use a reasonable ruse.”
This is a tactic Lustick described as using “certain mental prods to get you to admit something.” These dishonest interactions can be avoided by knowing and utilizing the rights Washington guarantees to individuals, and the “Know Your Rights” event was an opportunity for attendees to gain this knowledge from formally educated lawyers.
“As lawyers, our job is to be the hammer of truth, the hammer of justice,” said Lukoff. With that in mind, Lukoff and his colleagues offered three steps for handling most police interactions.
“The first words out of your mouth should be, ‘Can I help you?’” Lustick said. “The next question should be, ‘Am I detained?’” Then, “ask to speak to a lawyer,” and refrain from answering any questions.
Police “must stop questioning you” at this point, otherwise it “will be considered coercive,” Lustick said, which is inadmissible in court.
“There are on-call public defenders 24 hours a day,” McKee said, ready to assist in these circumstances.
McKee said people often think they will appear guilty if they ask for a lawyer and decline answering questions. He disagrees, and suggests that people refuse answering questions at all costs.
“If you don’t play the game, you can’t lose,” he said. This tidbit of advice is especially applicable when a police officer asks to search a car that smells like marijuana.
“Odor by itself is insufficient” without permission from the owner, McKee said. “Simply, do not consent to a search.”
In response to the refusal of a search, police may threaten to use the “hard way,” McKee said, which would involve utilizing K-9 units and search warrants.
“Go with the hard way,” he said, because police “have to get probable cause for a warrant.”
To obtain a warrant, an officer must contact a judge and provide them with information that suggests probable cause for investigating possible criminal activity. Then, the judge must sign a warrant granting the officer permission to search private property, such as a car or home.
If an officer suspects someone of being under the influence of marijuana, alcohol, or other drugs while driving, they may ask the driver to
perform a field sobriety test.
“Field sobriety tests have not been designed for marijuana,” Lukoff said. “The only way they can find out [if someone has been smoking marijuana] is blood tests,” and “a blood-draw is a search-and-seizure under the Fourth Amendment,” which would require a warrant.
In the case of alcohol, Lukoff and McKee suggest refusing sobriety tests and mobile Breathalyzers, but consenting to the use of a blood-alcohol content (BAC) machine at the police station.
“The best thing to do [is not to] volunteer,” McKee said, and added that people should comply when it is necessary, but it is not necessary to comply with every request from an officer, and that is why it is important to “invoke your rights.”
As Lukoff put it, “Be polite, don’t lie to them, but don’t answer any questions.”
“I strongly recommend, under no circumstances you waive your right to be silent,” Lustick said.