I was stopped by a police officer outside his jurisdiction. Can he do that?

Written by: Christopher Yotz

            The short answer is, yes. However, like almost all of the answers I give on this blog it depends on several factors. An officer in Missouri can leave his jurisdiction and still act as a police officer only while in fresh pursuit.

            The Missouri statute that extends the officer’s jurisdiction while in fresh pursuit is very restrictive. If properly challenged it requires the prosecutor to show the facts necessary to meet the fresh pursuit doctrine or there may be some problems with any evidence obtained outside the jurisdiction.

            The elements the prosecutor must show are:

1.                  Fresh pursuit was initiated inside the officer’s jurisdiction.

2.                 The officer witnessed a criminal act inside the jurisdiction. (This can be as minor as a speeding violation).

3.                 The accused must be attempting to escape or at least have knowledge of pursuit. (I believe the accused has to still be in the jurisdiction when this knowledge is conveyed, but this specific question hasn’t been challenged yet).

4.                  The officer must pursue without undue delay.

5.                  The pursuit must be continuous and uninterrupted.

6.                  There must be a relation in time between the alleged criminal act inside the jurisdiction, beginning of the pursuit and apprehension of the accused.

            Some criminal charges are often, or always, based on evidence obtained after a traffic stop such as DWI, drug possession, drug paraphernalia, driving while suspended, etc. If an officer conducted a stop outside his jurisdiction resulting in these types of charges a criminal defense attorney would probably file a motion to suppress any evidence obtained after the traffic stop. So, tell your attorney if you believe the officer stopped you outside his jurisdiction. This information could be very important and it’s unlikely the officer would write this information in his report, so you need to tell your attorney about it.

            A violation of the fresh pursuit doctrine only invalidates evidence obtained after the officer leaves his jurisdiction. Evidence obtained by the officer while still in his jurisdiction such as speeding could still be admissible in court. Therefore, an officer could pursue someone outside his jurisdiction and simply write a speeding ticket as long as the officer witnessed the defendant speeding inside the jurisdiction. This is probably frowned upon by the officer’s supervisors so it doesn’t happen very often.

            Let’s look at my favorite example of a DWI stop by a Kansas City, Missouri police officer. Here the officer is following a car that he sees weaving between lanes heading east nearing the city limits. The officer continues watching and following the car and just after passing over the city limits of Kansas City he turns on his roof lights and stops the offending driver. He then conducts a DWI investigation which, as it often does, ends with the arrest the offending driver for DWI. The officer then searches the suspect’s car and finds illegal drugs and paraphernalia. In this case, the evidence of the DWI, drug possession and paraphernalia charges may be suppressed due to an improper search. However, the traffic charge of weaving may well be valid as the evidence of this offense was obtained inside the jurisdiction and would be admissible.

Nobody read me my rights when I was stopped or arrested. Now they have to dismiss the case, right?

Written by: Christopher Yotz

            I’ve heard this question several times over the years. I think this may be another myth perpetuated by Hollywood. Just because you did not receive the Miranda Warnings does not mean that the criminal case against you must be dismissed based on that fact alone. However, there may be issues in the case against you that an attorney can use based on this fact which could lead to some evidence being barred from use at trial. If enough, or the right parts, of the evidence is barred then this could lead to a dismissal of some or all of the criminal charges.

            In a brief nutshell, the Miranda Warning is only necessary if: 1. you are arrested, 2. the police question you, and 3. the government wants to use what you say as a result of those questions against you. If any of these factors are missing then the lack of a Miranda Warning may not matter.

            During a DWI stop or other criminal arrest/investigation there are times when you may be under arrest and must have the Miranda Warning read to you before a solicited statement could be used against you. And, there are other times that it isn’t necessary.

            Let’s use my favorite example of a DWI stop here in good ole Kansas City, Missouri. A Kansas City police officer stops you for a traffic violation. When the officer walks up to your window he (I’m going to use the pronoun he but the officer could be a he or a she) asks if you know why he stopped you. An answer to this question could be used against you. The courts believe that at this time you may not be under arrest. Therefore, no Miranda Warning is necessary here.

            We’ll keep going with the example above. Let’s say that the officer decides to put you through the Standardized Field Sobriety Tests. These are the three tests that the NHTSA endorses for officers to use in order to show probable cause for a DWI arrest. (I’ll talk about these tests in another post later). After these tests the officer places you under arrest for DWI. Now, even the courts believe you are under arrest. But, when the officer helps you into the back seat of his car you typically still haven’t received the Miranda Warning. If at this point the officer asks you questions the answers may not be useable in court. However, let’s say you get scared and suddenly blurt out that you are sorry you are so drunk. Since this statement was not solicited by the officer it could be used against you.

            Back at the station after the above DWI arrest example the officer should read you a list of questions about where you’ve been, what you’ve eaten, and what you’ve had to drink, etc. The very first part of this questionnaire is a list of the Miranda Warnings that the officer is required to read to you. At this point all the stars align and we have all three elements above; arrest, questions and (unfortunately) answers.

            Considering all of the above, the short answer to the title of this post is; maybe. A criminal charge might be dismissed due to a lack of the Miranda Warning being given but only as a small part of the complicated whole. This is why you hire a lawyer to take a deep and long look at the case against you. Like I’ve said before on this site; you don’t have to hire me, but hire the best lawyer you can afford. This gives you the best shot at protecting your rights in a criminal case.

Can the police lie to me when asking me questions?

Written by: Christopher Yotz

The short answer is, yes. The police are legally allowed to be untruthful (with very few exceptions) in order to get someone to talk or otherwise give the police what they want.

Like many myths in the law, I blame Hollywood. The movies and television perpetuate so many false legal claims and false results that I’m astounded. But, they keep using these falsehoods and people begin to believe that they are true. Look at it this way; if an undercover officer always had to tell the truth to the “bad guys” then do you really think the concept of undercover officers would even exist?

            As I often do, let’s take a DWI stop for example. Let’s say the police have stopped you for a traffic violation and they want to escalate the stop to investigate you for DWI. The officer typically asks if you’ve been drinking. Let’s say you tell the officer, no. Then the officer says, “come on, I can smell it on your breath.” Even if the officer couldn’t really smell the alcohol they can make factual claims to you about other evidence against you in order to get a confession.

            Let’s take another example. Let’s say the police stop you for a traffic violation and the officer tells you he can smell marijuana and that if you just tell him where it is and let him search without getting a warrant then it will go easier for you. He can say this to you even if he can’t smell the marijuana.

            In both of these examples the officer is trying to get you to confess to a crime by leading you to believe he already has the evidence against you. I’m always surprised how often this works. If an officer is trying to convince you that he has all the evidence he needs to arrest you then he must not. If he did, then you would already be under arrest rather than having a discussion about how easily the officer could arrest you.

            Please also see my other blog post titled Should I answer questions from the police. As I said in that post, “You have a right to remain silent and you should use it.”

Should I agree to let a police officer search me, my car or house?

Written by: Christopher Yotz

            No, no, no, no, no!

            If that wasn’t plain enough I’ll say it again. No, you do not have to consent to a search nor should you. Attorneys see the opposite of this all the time. A situation where the officer has no basis for a search so they just ask for permission, and get it. If you consent to a search, you are waiving your fourth amendment rights against unreasonable searches and you take away one of the possible items an attorney can use to help you later. Don’t do it. It will not make you look innocent by agreeing to a search. It simply gives the police evidence they didn’t have to work for.

            Please note that I am not saying you should fight the officer, argue or try and prevent them from searching. You simply say, no. If the officer intends to search then they will search. But, by saying no you have a chance for your attorney to fight the search in court.

            If the officer asks why you won’t agree to the search then you can either refuse to answer or state that you will not waive your constitutional rights under any circumstances. (Please see my blog entry about whether you have to answer questions by the police).

            So, back to the beginning. If the police ask for your permission to search you, your car or house the answer is? (Everyone together now), NO!!

Should I answer questions from the police?

Written by: Christopher Yotz

            This is a question I don’t hear much from people. I’m surprised by this. Let’s take a DWI arrest as an example. People will ask if they should blow in the breathalyzer machine or refuse but not think twice about everything they said leading up to that moment. It’s quite possible that by the time you are blowing into a machine the damage may already be done.

            If someone is stopped by the police either for a traffic violation or at a checkpoint one of the first questions an officer asks is whether you’ve been drinking. What’s the answer? You could say the same thing almost everyone does, “yes, I’ve had 2 drinks.” I guess people think that the officer will smell the alcohol so I have to admit to it but let’s minimize it by saying only two. This response is a cliché at this point. I’d say maybe 7 or 8 out of ten DWI reports I read lists some form of the this response by the arrested person. Notice I say arrested person. This response does not help you, it only helps the police. You could try and deny drinking but lying to police can be used against you as well. So, the correct answer is no answer. If you aren’t going to slur your words then you could say, “I’m not answering any questions.” I’m not sure this is entirely safe either. The best response may simply be silence. The police may later try and claim that you aren’t responding properly to their questions. However, you don’t have to respond to questions that can be used against you. You have constitutional rights and you should never give them up for free.

            In the above example the officer may also ask where you are going or where you came from. Again, answering will only help the police officer. The officer is asking these questions to try and catch you doing something illegal, not to start a new friendship. He or she may be trying to hear whether your speech is slurred and also when you talk you expel breath at a higher rate which makes it easier to smell alcohol on your breath. See how they do this? Tricky isn’t it?

            Now, let’s assume you’ve been arrested for DWI. Let’s face it, if you smell like alcohol these days you are quite probably going to be arrested. I’ve seen quite a few videos of people who were arrested for DWI who did quite well on the Standardized Field Sobriety Tests (SFST). I’ve even had a case where the officers are talking to each other on camera saying the soon to be arrested person doesn’t look, act or smell drunk and they then step out of the police car and immediately arrest him. (Oops, I just digressed into story time. Sorry about that).

            After you are arrested the police take you to the station or maybe a nice truck or trailer in a parking lot. This is where the breath test machine likely resides. Here they have more questions for you. They may say these questions are just a form they have to fill out. Actually these are questions included in the Alcohol Influence Report they have been working on since they first laid eyes on you. These questions were created in order for you to admit to all the elements of Driving While Intoxicated wrapped up in a nice little package for the police. You don’t have to answer these questions. Almost everyone does. The officer will act like it is just another government form that has to be completed. This is true; he has to complete the form. You don’t have to complete the form or answer these questions and you should not. Again, no answer just like above. I’ll digress into story time again and say that a report I once read listed some very creative responses from the arrestee on this form. While certainly entertaining, it wasn’t the best way to go.

            To sum up, you don’t have to (and should not) answer questions that might be used against you even if the question and answer sounds innocent. You have a right to remain silent and you should use it.