Natty Shafer Law

Utah lawyer for criminal and immigration cases

Tag Archives: Utah criminal lawyer


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You Can and Should Refuse Consent to the Police

Anytime the police ask you if they can look around your car/house/body, they aren’t being polite. They need your consent and you don’t have to give it. Every police officer has a personal style to the question, but their goal is to make it seem like they are just politely asking permission to do something they could do anyway. However, you have the right to refuse, but once you consent to a search, you have given up your constitutional right to be free of unreasonable searches.

This is a common theme of my blog, but even my close friends have a difficult time remembering this. This past weekend, the subject of police searches came up, and I had to remind my friends that they can tell an officer that they don’t want them to snooping around their car.

Some people are afraid of being rude, but it’s easy to politely but firmly tell an officer, “no.” To get you in the right mindset, think of the request to search your car/house/body as a rude request. For example, if a new friend came over to your house and said to you, “Do you mind if I look around your medicine cabinet? I just want to know what kind of person you are.” No matter how politely the friend said it, most of us would be flabbergasted. That’s really how you should think of any request to search you. They are asking to snoop around our private effects, and it’s within our rights to refuse. Regardless of whether the police will find anything illegal, I don’t like strangers rummaging through my personal belongings.


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People Forgetful after Physical Activity

Another problem with eyewitness testimony was highlighted with a recent study that showed police officers are more forgetful after a chase or an altercation. A CNN story about the study says that the officers had a briefing on three armed robberies and then shown six photographs of suspects. Then:

The group was split into pairs where one officer rigorously assaulted a punching bag until he was visibly tired, the other did not. They were then taken to a trailer set up to represent a realistic “home” environment complete with a “target” individual who had access to multiple weapons strategically placed around the room.

Each officer went through a scenario where there was a brief but angry verbal confrontation with that person. Shortly after the scenario was over, officers were given three memory tests. They were asked to recall details of their initial briefing, the encounter – and then shown the lineup photographs.

Researchers found the group that physically exerted themselves remembered less information from the original briefing and the encounter with the target individual. In fact, more than 90% of the officers in the non-exertion group could recall at least one detail about the target. Barely a third of the officers who were involved in the physical activity remembered seeing the target person at all.

Although the study was conducted on just police officers, there is no reason to believe that the results would have been any different if they had been conducted on the general public. The participants in the study were screened to ensure that they were physically fit, and, as police officers, they are regularly asked to remember crucial details, often after physical exertion. Only a third of trained officers were able to remember any details at all about the person they encountered, so laypeople are going to have a more difficult time. Winded witnesses simply cannot be trusted to adequately identify suspects. And yet juries continue to give undue credibility on eyewitness identification.


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Utah May Ban DUI Checkpoints

Today, the Utah House of Representatives passed a bill to prohibit the police from conducting DUI checkpoints. The Utah State Senate must also pass HB140, and then the governor would need to sign it for it to become law.

Police use DUI checkpoints by placing roadblocks on a public roadway and then they stop every vehicle or random cars and look for signs of alcohol or other impairment. The Utah bill would not affect law enforcement’s ability to look for fugitives, such as during an Amber Alert, nor would affect their ability to look for “invasive species.”

The United States Supreme Court deemed random DUI checkpoints as constitutional in the case Michigan Dept. of State Police v. Sitz. Michigan’s high court then found such checkpoints to be illegal under Michigan’s Constitution. Several other states have banned them as well.

UPDATE: HB140 never made it out of the Utah State Senate, so as of the close of the 2012 legislative session, Utah remains one of the states that allow DUI checkpoints.


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Voluntary Police Questioning

Sometimes, police officers may want to question you before they arrest you. Such “voluntary” questioning can be problematic for a suspect because police do not need to give you a Miranda warning until arrest. However, the government will still use any incriminating statements made before arrest in court. The government does not have to provide an attorney for indigent individuals, and those that could afford an attorney might not realize they really should have one.

It’s a common misconception that anything said before a Miranda warning is inadmissible. For example, here in Utah, a friend of mine was with a group of people on a school playground late at night drinking alcohol. When someone spotted the police, everyone scattered. Some time later, an officer saw him on the street and asked him if he was among the people who had been drinking. My friend said that he was. When he represented himself in a Utah court, his admission was the key evidence against him. He tried to tell the judge that the officer never gave him a Miranda warning, but, of course, the judge didn’t care because he hadn’t been arrested when he said it. And my friend is the son of a (non-criminal) attorney.

It’s important that anyone detained by the police ask if they are free to leave. Police can only detain a suspect for a short time—not much more than the average traffic stop—before a judge will conclude that the suspect was in custody, and thus under arrest. When police officers say you are free to leave, you should take advantage of their offer. To circumvent Miranda, police will sometimes tell suspects that they are free to leave when they really aren’t. Judges are skeptical that questioning occurred under voluntary conditions, if, for example, the police arrest you immediately after you decide to leave. Courts examine whether the questioning constituted “custodial interrogation,” and the fact that someone was not formally arrested does not necessarily mean that police do not have to give Miranda warnings.

Suspects who haven’t been formally arrested need an attorney just as much as someone who has. As I previously mentioned, it is paramount that you speak to an attorney if you are in custody.