As Seen On:

David Benowitz on Arrests and Searches

Below, DC criminal attorney David Benowitz answers questions about arrests and searches in DC.

If a person is arrested and insists on speaking with an attorney, does that imply guilt?

Fourth Amendment Arrests and Searches IssuesDavid Benowitz: If a police officer says, “You have the right to remain silent. You have the right to an attorney. Anything you say can be used against you,” and then they ask you if you want to speak with an attorney, it will never be a problem for you if you say “yes.” I tell clients all the time: You say, “I want an attorney.” What I do with clients who are in danger of being arrested, they haven’t been arrested yet but it’s pretty clear that the government’s investigating them and they may well be arrested, I give them a letter from me addressed to the relevant law enforcement agency that says [essentially] I represent so-and-so, he is asserting his right to silence and to counsel, to a lawyer. He does not want to speak with you. He doesn’t want to be put on video so he can say he doesn’t want to speak with you, because that’s what the police do to try and get you talking. They try to take two bites of the apple that way. And I give [my clients] three or four copies of the letter, so they can have one in their pocket at all times, one in their car, one in their house. So they don’t have to say anything when or if a police officer approaches them and arrests them. All they do is give them the letter, and they don’t have to say anything. [That makes it easier for clients] who feel like, “I don’t want to offend anyone” or “I don’t want to be the person causing trouble.” They might think, “It’s going to get me in trouble if I say I don’t want to talk.” It will never get you in trouble, in that sense.

What about requests for searches? If an officer says,” May we search your car? May we search your person?” You say…

David Benowitz: The answer is no.

And they say, “What, you have something to hide?”

David Benowitz: I always advise people to be as polite as possible. You should be just very polite and politely decline to have your vehicle, for example, searched. The answer to the question, “Well, if you have nothing to hide, then why do you mind, why do you care if I search your car?” Again, I wouldn’t advise answering the questions. I would, again, just politely say, “I do not want you to search my car. Sorry.” In this country, you don’t have to let anyone search your car, or your house … unless they have a search warrant. Then you don’t have a choice. But barring that, you don’t have to consent. And that’s what our constitution guarantees. You should never feel bad about standing on your rights. Just do it politely. There’s no reason to get in a fight about it.

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