Today's issue addresses one of those things no one ever told you. The police can, may and will lie to you. They can tell you they have evidence when they don't, can tell you they will take your kids to Social Services if you don't let them search your house though that isn't true, tell you they are going to let you go if you confess/hand over the drugs/etc. when they have every intention of arresting you if they can, and yell and tell you they are going to search your car anyway, get a search warrant they may or may not be able to get or take you to jail for refusing to let them search, to name a few examples I have seen in my practice.
I have also read police reports that say a defendant consented to a search when my client denies consenting to anything. In my experience, the judge will believe the cop word for word, every time. I have yet to have anyone come in with a recording of themselves firmly, clearly refusing consent to search, and would like to see what could be done with one. I am not saying a lot of police deliberately lie on their reports, though there are bad apples in every bunch. But if you do not make your refusal crystal clear, it may not be enough for an officer or the court.
Why is all this even an issue? Usually, there is an officer wanting to do a search involved, and they can't just search you at will. The 4th amendment protects you against unreasonable searches and seizures. I could spend the rest of my life on all the law about what is 'reasonable', but here are the basics. Law enforcement needs specific things showing a crime is probably being committed, or 'probable cause', to search you or your property. However, if you give consent, confess or hand over evidence, then that's the end of it. You've waived that entire set of protections, and everything found and said comes in against you, period. This is why police lie to you. So you'll make your own case against you. Lots easier than applying for a search warrant, or defending their search, right?
It is certainly true that being polite and cooperative with police is in your best interest, and the vast majority of them really do deserve to be treated with respect anyway. Their jobs are hard enough without you getting snippy. However, you do not need to do those jobs for them, particularly at your own expense. Be polite and cooperative by saying ma'am and sir, excuse me, and being calm, firm and polite when you say no, you do not want him or her to search. Continue to be respectful no matter how much flak they give you. And remember, if you are put under pressure, that if that officer had enough probable cause to search, they would be doing it already, not pressuring you.
Friday, February 1, 2013
Wednesday, January 23, 2013
"Where did you hear that?", Issue #1.
Are there many honest lawyers? More than you probably think. Still, we're not in the business of making ourselves unneeded. It's bad enough in North Carolina with seven law schools; you can't throw a briefcase without hitting some kid with a new tie who wants you to pay him for his freshly minted thoughts. So, why am I chewing the fat on a virtual front porch with random readers, probably keeping a few of you out of our offices and a few of your dollars in your pockets? A self destructive streak of do-gooder, in part, I suppose, which is why I washed my own Passat today rather than having a Mercedes detailed. Also a little bit of liking to hear myself talk. Oh, yeah, and somebody told me this was a good way to get some free advertising. There, I said it. Who says there are no honest lawyers?
This post is issue #1 in a series I think I'll call: "who told you that?" The internet and armchair lawyers who watch Judge whoever and SVU have gotten a lot of folks all screwed up as to what they need and don't need, what their rights are and how pretty much anything works. Yes, I recognize the irony of saying this here, on the web, in a blog, the world's best opportunity for anyone who can type to spew out alllll the random crap that, in a just and decent world, would stay in their heads. But I went to law school, so I get a sort of spew license, I think, no?
Ok, first post in the "who told you that?" series is on separation agreements. I don't know what people mean when they want a 'legal separation', though there is something called a divorce from bed and board, which we can address some other day over another glass of tea. Here are a few basics. You do not need a separation agreement in North Carolina to get separated, or divorced. They do have some advantages, but basically, when you pack up and don't plan to come back, you're separated. One year later, you can get divorced. Now what about that old-time's- sake visit to pastures well-known? You do not necessarily need to start the year over. Even our crochety old legislators realize that, well, things happen; there was some Barry White on the radio, you know, and you forgot how cute his ears are, all that kind of thing. It happens, and you are not un-separated. However, if you try to work the relationship out and are unsuccessful, maybe the year does start over. Check with an attorney if you want to get divorced and aren't quite sure where the Barry White stopped and the reconciliation began. The last thing you want is your spouse arguing you haven't been separated a full year and telling the court about things you really wanted kept behind closed doors, and paying a lawyer for the pleasure. Just ask ahead of time.
Another tidbit on separation agreements - no, they do not transform themselves into divorces after one year. If you want a divorce, you have to get a divorce. You might be able and interested in sticking your separation agreement on to the divorce, called "incorporating", but it is still a separation agreement.
While I'll have a few more things to say about separation agreements in the future, experience suggests that I do need to point out the obvious. Separation agreements are agreements. They require agreement. You cannot serve your spouse with a separation agreement, make them sign it and run away with all the lawn equipment. A separation agreement comes from the two of you having drawn up a deal between yourselves about, well, whatever you agree about. Common subjects are the debts, the house, household things, vehicles, custody, child support and post separation support or alimony. However, can include pretty much anything - who gets the Richard Petty photo collection, who pays for little Muffy's dance lessons, a shared custody arrangement for the dog - you get the idea. There is a little strategy involved; there may be reasons to include certain things, or not to, particularly when it comes to property and spousal support; I remember having someone who obviously thought they knew what they were doing sitting in my office with a smug look, thinking she was top dog of the day. I suggested twice that she seek independent counsel because I knew full well she didn't know what she was doing, and didn't want her coming back and arguing she was pressured into signing if she ever figured it out. But noooo, she's watched some TV. And she sat right there and signed an agreement that, in essence, lost her about twenty grand she could have easily gotten out of my client. And the moral of the story? You don't have to have a separation agreement, but if you have one, do it right.
This post is issue #1 in a series I think I'll call: "who told you that?" The internet and armchair lawyers who watch Judge whoever and SVU have gotten a lot of folks all screwed up as to what they need and don't need, what their rights are and how pretty much anything works. Yes, I recognize the irony of saying this here, on the web, in a blog, the world's best opportunity for anyone who can type to spew out alllll the random crap that, in a just and decent world, would stay in their heads. But I went to law school, so I get a sort of spew license, I think, no?
Ok, first post in the "who told you that?" series is on separation agreements. I don't know what people mean when they want a 'legal separation', though there is something called a divorce from bed and board, which we can address some other day over another glass of tea. Here are a few basics. You do not need a separation agreement in North Carolina to get separated, or divorced. They do have some advantages, but basically, when you pack up and don't plan to come back, you're separated. One year later, you can get divorced. Now what about that old-time's- sake visit to pastures well-known? You do not necessarily need to start the year over. Even our crochety old legislators realize that, well, things happen; there was some Barry White on the radio, you know, and you forgot how cute his ears are, all that kind of thing. It happens, and you are not un-separated. However, if you try to work the relationship out and are unsuccessful, maybe the year does start over. Check with an attorney if you want to get divorced and aren't quite sure where the Barry White stopped and the reconciliation began. The last thing you want is your spouse arguing you haven't been separated a full year and telling the court about things you really wanted kept behind closed doors, and paying a lawyer for the pleasure. Just ask ahead of time.
Another tidbit on separation agreements - no, they do not transform themselves into divorces after one year. If you want a divorce, you have to get a divorce. You might be able and interested in sticking your separation agreement on to the divorce, called "incorporating", but it is still a separation agreement.
While I'll have a few more things to say about separation agreements in the future, experience suggests that I do need to point out the obvious. Separation agreements are agreements. They require agreement. You cannot serve your spouse with a separation agreement, make them sign it and run away with all the lawn equipment. A separation agreement comes from the two of you having drawn up a deal between yourselves about, well, whatever you agree about. Common subjects are the debts, the house, household things, vehicles, custody, child support and post separation support or alimony. However, can include pretty much anything - who gets the Richard Petty photo collection, who pays for little Muffy's dance lessons, a shared custody arrangement for the dog - you get the idea. There is a little strategy involved; there may be reasons to include certain things, or not to, particularly when it comes to property and spousal support; I remember having someone who obviously thought they knew what they were doing sitting in my office with a smug look, thinking she was top dog of the day. I suggested twice that she seek independent counsel because I knew full well she didn't know what she was doing, and didn't want her coming back and arguing she was pressured into signing if she ever figured it out. But noooo, she's watched some TV. And she sat right there and signed an agreement that, in essence, lost her about twenty grand she could have easily gotten out of my client. And the moral of the story? You don't have to have a separation agreement, but if you have one, do it right.
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