Don’t Talk to the Police

First, a bit of background:

Police have two ways they can talk to someone in the public: consensual or seizure. A police consensual encounter is a voluntary, non-detention interaction where an officer approaches a person to ask questions or for identification. The person is free to leave, refuse to answer questions, or decline requests at any time- to include refusal to provide ID. It does not involve commands, force, or blocked movement. 

A seizure is where a person isn’t free to leave. Police can use force to keep you there, they can search you, demand your ID. Noncompliance with this is considered obstruction or resisting and is illegal. The person being questioned still has the ability to refuse to answer questions, or refuse to answer them without a lawyer present. This is why asking police if you are free to leave is so important. This tells you if you are in a consensual encounter or have been seized.

If the police want to talk to you, they can ask or they can seize. In order to seize, they have to have probable cause that you are or have committed a crime, or they have to have a warrant. If you are in your home, a warrant is generally required, if they don’t have exigent circumstances. Those include the belief you are destroying evidence (e.g., flushing drugs down the toilet), or there is something going on that is an emergency (say you are murdering someone in the home). Police cannot make a warrantless, non-consensual seizure inside someone’s home just because they have probable cause. They generally need an arrest warrant (unless exigent circumstances apply). This is important.

Now to the case at hand:

Two years ago, three men were involved in a fight in a bar in Saint Cloud, Florida. One of the men was reportedly armed with a handgun and had left the scene. The other two individuals who were in the fight contacted police: one of them refused to give a statement, and the other (visibly intoxicated) man did give a written statement claiming the third man displayed a handgun. Both of the men who spoke to the police at the bar were rather vague on details about the fight or what started it.

The next step you would expect an investigator to do would be to, well…investigate. You would think that the cops would contact the man, ask him to come in and answer a few questions, or perhaps even send a cop or two over there to ask. After all, he isn’t under arrest, they don’t have a warrant, and the contact at this point is consensual. Or supposed to be.

The cops immediately assembled a tactical team and had a meeting where they discussed the methods and tactics they would use to take him into custody. They surrounded the house by posting two cops at the rear of the home to prevent his escape, the cops out front had a K9, bullet shields, and NFA long guns with suppressors. They called him on the phone and asked him to step outside to answer some questions.

The Raid

What happened next was captured on body camera video, you can see the video below. They held him at gunpoint and ordered him to the ground. Even though his hands were raised, they kicked him to the ground, used the K9 to bite him because he wasn’t going down fast enough, and used quite a bit of force for a consensual encounter.

Any reasonable person would agree that they are not free to leave at this point. This is a seizure. They avoided the requirement for a warrant by luring him outside using a friendly tone and a request to just “Answer a couple of questions.” Since police tricked him to come outside specifically to avoid the warrant requirement, courts tend to scrutinize that. This trick is called constructive entry. This was never intended to be a consensual encounter, as evidenced by their own meeting and plans to take him into custody.

There was no reason to rush over there and arrest him. The incident was over, and there was plenty of time to secure a warrant. There were no exigent circumstances, and therefore no exception to the requirement to get a warrant. This doesn’t look like a casual “knock-and-talk” but more like a planned arrest operation without a warrant, which courts scrutinize closely. Payton v. New York ruled that police cannot do indirectly what they’re forbidden to do directly—i.e., they can’t avoid the warrant requirement by tricking or forcing someone out of their home.

• House surrounded by armed officers
• Officers positioned to prevent exit
• Suspect called and told to come out
• Show of force (guns, numbers) suggesting no real choice
• Use of force when subject was compliant and not offering active resistance

In my mind, there is little doubt that this man’s constitutional rights were violated, both in the arrest without warrant, and in the manner the arrest was carried out. There was no reason to use force on a man who had come out voluntarily and was offering no resistance. Not one of those cops mentioned “hey, maybe there is a better, more constitutional way to do this.” This, in my opinion, destroys the “few bad apples” trope.

To make it even worse, it turned out that this man was the victim and the two intoxicated men had attacked him. The prosecutor in the case dismissed all charges, saying that the case was “unsuitable for prosecution.” He has since filed a lawsuit against the city and its police department for violating his civil rights. The cops will almost certainly hide behind qualified immunity claims.

There is a lesson to be learned here.

Don’t talk to the police.

I’ve said this before- don’t talk to the police. Ever. There is no such thing as a friendly chat with cop. I will refer you to an old post of mine on the subject that contains a video titled “Don’t talk to the police.” Don’t talk to the cops, no matter what. They aren’t your friends. They aren’t there to help you. They are there to make a case to arrest someone, and they will get the arrest that requires them to do the least amount of work they can. At best, they are there to find reasons to take you to jail, at worst they are there to use their cool toys on you- whether that be a machine gun, a K9, or just a good old fashioned beating.

Most cops are pussies and cowards. We see that time and again- they will use overwhelming force on those who pose no threat, even going so far as to toss grenades into a baby crib, but will cower outside with their machine guns and body armor while children are being killed by an armed murderer.

A cop calls you on the phone and wants you to come out and answer questions, ask them if they have a warrant. If the answer is no, you tell them you don’t want to answer any questions or speak with them until you have an attorney. Offer to come down to the station with your attorney to answer questions, and tell them your attorney will schedule the meeting. Whatever you do, don’t open the door. You have a doorbell camera for a reason.

Open that door, and this just might happen to you. Ever since my incident in Orange County, Florida in 2001 where a Deputy Sergeant threatened to kill me when I presented him with my concealed weapons permit during a traffic stop, I don’t inform cops of shit.

The cops may not have enough to arrest someone, but you talking will give them what they need. If they DO have enough to arrest you, there is nothing you can say that will talk them out of it. Refuse to talk to them, don’t open the door, and go about the rest of your life.