If Cops Can’t See You, They Can’t Arrest You

The television series Miami Vice glamorized the drug war of the 1980s with good-looking people bathed in pastel colors. The show first appeared in 1984 on NBC and ran for five seasons. Detectives Sonny Crocket and Rico Tubbs wore thousand-dollar suits designed by Gianni Versace and Hugo Boss. Newly enacted civil forfeiture laws enabled the two detectives to drive a Ferrari and Cadillac Coupe de Ville convertible. They also wore Rolex gold watches, all supposedly seized from drug kingpins. Police work is never this glamorous. In fact, most officers patrol on the streets, they do not investigate. The basic patrol activities are responding to calls, pulling over cars, and stopping people. Most cops most of the time are driving around in cars. Says former Miami police officer and FBI agent turned defense attorney Dale Carson, author of Arrest-Proof Yourself, “what you need to do to become less arrestable is to be less visible to car patrols. If cops can’t see you, they can’t arrest you.”

Visibility is one of several factors that significantly increase the likelihood of being arrested. Often people are on the porch of a home or in their front yard, visible to anyone who drives by, including the police. Included in this would be areas around schools, housing complexes, government buildings, and retail locations which likely have surveillance cameras and regular security walk-throughs. High-crime areas usually have more police patrols, so these areas have a higher likelihood of arrest as well. If someone is in a private residence, police need a search warrant with very few exceptions, so it is safest to consume cannabis there.

Another kind of visibility is from photos and videos from smartphones posted to the Internet. One reviewer described the video quality of the iPhone 12 as “insanely good.” Photos on phones from Apple, Samsung, and Google Pixel deliver great results in almost every case with balanced colors and excellent details, even at night or indoors with low light. With these cameras, people capture the fun and unique moments in their lives. They often share these important life experiences on highly public Internet platforms like Instagram, Facebook, Twitter, and YouTube. Unfortunately, these photos and videos can be used against someone in a legal proceeding or start an investigation. Carson said in a Facebook Live presentation in 2017 that photos and videos shared online “is evidence that is almost irrefutable.” He said police and prosecutors “are happy to charge people for cases made in heaven for law enforcement.” After reviewing both civil and criminal law, it seems clear that it would never be good to share photos, even privately with friends, consuming cannabis or possessing cannabis, cannabis products, and paraphernalia in or around cars/motor vehicles, anyone under 21, and firearms. A similar caution applies for housing, if smoking, growing cannabis, or use of any cannabis is not allowed by a landlord or homeowner’s association. Police, child protective services, employers, and others are usually alerted to photos from former boyfriends and girlfriends, roommates, tattling co-workers, nasty neighbors, and nosy distant relatives, which is why sharing questionable photos and videos with individuals outside the big platforms can be a problem. Incongruity is another factor that increases the likelihood of police stops. Police constantly look for patterns. If you look different from what is typical, you will likely be stopped by police. For example, someone in well-worn jeans and a T-shirt raises suspicions at a fancy hotel where everyone is well-dressed. The same is true if someone is wearing summer clothes outside in the winter. Yes, when dudes have long hair, dreadlocks, lengthy beards, tie-die shirts, cargo pants, or when folks wear psychedelic or trippy colors, people, including police, will take notice and be curious. If someone looks out of place, Carson says police believe they probably are.

Finally, Carson says that looking like a crook increases arrestability. This includes pulling a hat or hoodie down to conceal the face, slouching, and looking at the ground, running, crouching in bushes, wearing socks on the hands, and carrying tools without a toolbox.

How to Approach a Police Interaction

Carson repeatedly stresses the importance of making every reasonable effort possible to avoid being stopped and questioned by police. That is because “once you’re stopped, even if you’re completely innocent, you can commit crimes right in front of cops that can get someone arrested. You can go from innocent to guilty in minutes by doing things that you don’t even realize are crimes.” The most common offense is lying to police. Adds Carson, “Cops can verify much of what you tell them. They have cell phones to call anyone you mention. By computer, they can verify addresses, licenses, registrations, permits, warrants, criminal records, and much more. Because they constantly drive the neighborhood, they have a better idea of what’s going on minute by minute than you do.” When interacting with cops, there is an underlying tension of psychological domination. “Savvy people instantly realize that cops and criminal justice are a separate subculture in which they are not players,” explains Carson. “Whatever power, money, and prestige they have accumulated in their world mean nothing to cops. They acknowledge at once that on the streets cops are boss. In front of cops, savvy people shut up and get polite. They let their lawyers do any arguing later that has to be done. They know that the most important contest is staying free. Why get into an argument with a cop and get busted? It’s not worth it.” Former Baltimore police officer Peter Moskos writes in his book Cop in the Hood, “The vast majority of calls for service do not result in an arrest, and the bulk of arrests are not felonies. For minor and nonviolent offenses, such as traffic citations and non-felony arrests, police officers exercise a great deal of discretion.” Offering them deference can prevent a low-level misdemeanor arrest.

What to do when stopped by police:

Carson offers this grab bag of recommendations when encountering an officer, particularly during a street stop.

• Stand straight: Carson says it shows respect for the cop and crooks slouch.

• Make eye contact: Staring at the ground is considered suspicious behavior by police. So is moving someone’s eyes or head around wildly while in conversation.

• Maintain a neutral face and don’t smile: Carson says cops don’t like smiles.

• Tell the truth: Lying to police can be a crime.

• Ignore provocations: If cops call a detained person names, they should be ignored. The same goes when cops lean into a detainee’s space or scream at them.

• Stay calm and restrained: Do not raise hands, touch the officer, touch police equipment or police dogs.

• Keep hands at sides: Do not reach into pockets or bend down to reach for ankles.

• Remain in place: Running away from police is a crime and will likely result in hands-on contact.

• Obey commands: If an officer asks you to walk over to his car, do it. Do not argue or question his authority.

When asked about the biggest mistake people make when first encountering a police officer, Carson told Marc Clair of the Lions of Liberty podcast in 2013, “They are not pleasant. That’s it. Listen, I have let more people go from traffic tickets who simply said, ‘Officer I know why you stopped me.’” By the way, as a criminal defense attorney, I would never want you to do this. Let me be clear because I would never want you to admit anything. But I am just telling you as a practical matter when people would say to me ‘Officer I know I was speeding. I’m sorry. I was thinking about… [something]. I’ll take the ticket.’ I’d look at them because people so rarely did that, and I’d say after looking at their license and making sure it was a good license ‘Have a nice day Mr. Smith.’ The key here, and I think so many people miss this, is that you just need to be polite. That’s true not just in police citizen encounters. It’s true in almost everything we do in life.”

In his book, Carson says “Cops are the archetypal representatives of the American middle class. They expect people to be reasonably polite and obedient to authority, and they punish those who aren’t. In the presence of police, you have to act, briefly, like middle-class Americans. Cops themselves are middle class. They respect the middle class and will cut some slack for people who act middle class. This means no cursing, yelling, screaming, or game playing with cops. Those who are not polite and complain get arrested and misdemeanor offenders can escalate an incident into a felony.” Says Carson, “When you’re upset, you’re vulnerable because your emotions are raging and you can’t think clearly. Cops will take advantage of this, intensify routine questioning, and then search you and your vehicle. Adds Peter Moskos from Cop in the Hood, “Criminal behavior and a bad demeanor will certainly increase the likelihood of arrest. Polite people can often avoid arrest while rude folks can talk their way into handcuffs.”

In part three of this series, I will describe how to talk to police, the absolute importance of remaining polite, and how to use your constitutional rights to avoid an arrest.