How Do You Say No? Responding to a Search, Arrest,
or Other Close Encounter with the Police

By David Gerger

You became a “civil” lawyer so clients would not call you from jail at 2 a.m. But what should you do if one does? This article gives a broad outline of issues that arise when your client, or someone you know, confronts a criminal law problem — such as an arrest, a search, or a grand jury subpoena.

Should your client talk to the officers?
Perhaps the first and most important question you will be asked is whether the client should answer the officers’ questions. Your caller generally will be feeling pressure to talk to the officers and answer their questions. The encounter is inherently intimidating. The officers are carrying guns. Americans are socialized from an early age to trust the police, and we look to law officers to help us in times of need. People feel guilty saying “no” to the police, especially if the officers are using threats or more subtle forms of coercion, such as: “If you talk with us now, it will go easier for you”; “If you haven’t done anything wrong, you have nothing to hide from us”; “If you don’t talk with us now, we’re going to take you downtown”; “If you need to call a lawyer, then you must feel guilty”; “Someone else has already told us that you were involved.” These statements may be true or false, but they are not a reason to talk to the police unprepared.
First, the officers’ job, among other things, is to gather evidence for prosecutors to decide whether to file criminal charges. The best outcome for your client is for nothing to happen. Anything your client says can be used against him.
Even worse, something not said can be used against your client. That is, after an interview, the law officers will write a report about what your client said to them. It has been my observation that even if the officers try to remember and report exactly what was said, they can’t. When witnesses (or by then, possibly, criminal defendants) read police reports of their interviews, they often sharply disagree with what was written. Unfortunately, at that point, it is her word versus the officer’s, and the officer may be considered more credible.
Third, witnesses in such interviews are under extreme stress, if not feeling outright intimidation. They have not had an opportunity to refresh their memories with documents, calendars, or other materials, and they are susceptible to giving incorrect answers. Because lying to a law officer is itself a crime, incorrect answers, if misinterpreted as intentionally false, can lead to criminal charges independent of the matters under investigation.
So, should your client talk? The prudent answer probably is: “Not right now.” The risks of talking to the police during an arrest or search generally far outweigh the potential benefits. Your client can always choose to talk to the police later when he is rested and prepared, but he cannot easily retract what he said in the past.

How to say “No”
Once your client decides not to talk to the police, or at least to defer the decision until later, he must tell that to the officers. Some officers respect and accept the decision. Some do not (and try the tactics described above). The client must remain polite, but firm. I suggest saying: “I won’t talk with you without my lawyer; please call my lawyer,” and repeating that same answer to follow-up or other questions until the officers stop. This wording avoids a direct confrontation between the client and the officer while preserving the client’s rights.

Can the officers search?
Remember that one of the officers’ jobs is to obtain evidence of crimes. If they cannot talk with your client, they will obtain no evidence that way. They then might ask to search the client’s home or other property.
This article does not purport to explain the complexities of Fourth Amendment law. In general, however, the officers may search if they have a warrant and, with limited exceptions, they may not search if they do not. If the officers do not have a warrant, they may ask the client to “consent” to a voluntary search. If the client gives consent, then the officers may search and seize what they find. And the search itself will create a continuing risk of questions being asked and, more importantly, answers being given.
If the officers do have a warrant, signed by a judge, then the client should not interfere with the search (but need not assist it either). Even in that situation, however, many complicated questions may arise during the search. For example, the officers seeking particular items (such as contraband or specific documents) may ask the client where the specific items are, to avoid a search that can result in the location being effectively ransacked. Or, the officers may ask the client to open a safe or locked area to avoid it being broken open. The client’s cooperation – while preserving order – may create what the government argues is evidence of guilt (i.e., that the client controlled the area where the evidence was located, leading to the inference that he knew it was there). Your goal is to insert yourself as quickly as possible between the client and the officers, so that all communications with the officers go through you (not the client). If possible, get to the scene while the search is still in progress both to ensure your client’s rights and to observe what is being searched and recovered.

It turns out to be just a grand jury subpoena
Despite impressive origins, the grand jury today is neither “grand” nor a “jury.” In practice, it is a discovery tool for the prosecutor to use to obtain documents and witness testimony. The client and his counsel will have to decide how to respond to the subpoena. An individual subpoenaed to a grand jury has the right to decline to answer questions that might advance a criminal prosecution – even if the prosecution is wrongful and even if the witness believes himself to be, and is, innocent.1 When a witness declines to answer questions, the government has two primary options. First, it may challenge the witness’ ability to invoke the Fifth Amendment, but this is a difficult burden for the government and rarely argued. Second, the government may “immunize” the witness, meaning that no information given can be used against the witness in any criminal case, thereby forcing the witness to testify by removing the risk of incrimination. Sometimes, the witness and the government negotiate other arrangements – for example to conduct an informal interview rather than a grand jury appearance – in exchange for certain protections for the witness. Like much of criminal law, negotiating the terms of such an interview is a trap for the unwary, and what is advertised as a letter of protection may offer little comfort when needed.
Finally, the lawyer representing a client in the grand jury or a government interview must learn as much as possible about the facts and about what the government believes happened. Testifying without reviewing documents increases the risk that the witness will misremember facts or contradict a long forgotten e-mail. Testifying inconsistently with the government’s theory can create new sources of discomfort for the witness: testimony that the government disbelieves can be worse than no testimony at all.

How to arrange bail
A. State Charges
If your client has been arrested, the Texas constitution guarantees a right to bail in most cases (with some exceptions). Some counties have “standard” bail amounts that apply to most cases. Many defendants hire a bonding company to post bail. These companies typically charge a non-refundable fee of between 10-15 percent of the bond amount and may require collateral for the balance. In the alternative, friends or family may pay the full bond amount in cash to the County Sheriff, who will then return the bail money at the end of the case.
As mentioned above, the Texas constitution guarantees the right to bail in most cases. If the bond is too high – either because the client is unable to pay it or because it is not reasonably necessary considering the risk of flight and danger to the community – then the accused should ask the prosecutor or Court to reduce it. If an acceptable bond cannot be agreed, then the client jailed on an unreasonable bond may file a “writ of habeas corpus” to reduce bond and even subpoena witnesses including police officers to a hearing. Often the writ hearing, or the mere filing of the writ, results in an affordable bond.
If your client has not yet been arrested, but an arrest warrant has been issued, then it often is possible to make bond before an arrest occurs – which is desirable. The practice will vary among counties. In Harris County, the bonding companies can prepare the paperwork, take the client to be processed at the Sheriff’s office, and arrange the release without arrest.

B. Federal Charges
Bail in federal cases is governed by 18 U.S.C. 3142. This statute creates a presumption of bail in many cases and a presumption of detention without bail in others (generally involving drugs or violence). One facing federal charges will be brought or will voluntarily appear in person before a nearby federal magistrate for an “initial appearance” – where the prosecutor will recommend either conditions of release or detention. If detention is recommended, the magistrate judge will schedule a hearing, usually within three days, until which the accused generally is detained. At the hearing, the magistrate judge will consider the defendant’s risk of flight or danger to the community; the nature and circumstances of the alleged offense; the weight of the evidence; and the history and characteristics of the defendant. The magistrate is aided by a background report prepared by a U.S. “pretrial” or “probation” officer.
In Houston, bail in a federal case is rarely satisfied by a bonding company. Rather, a magistrate judge setting a financial requirement for release usually will require a cash deposit directly to the Court of part or all of the bond amount – to be returned at the end of the case to the depositor.

Conclusion
Our system protects the rights of those who fight for them. A search or arrest can be a traumatic experience, during which valuable rights can be lost. Obtaining quick and effective counsel is crucial at that stage to ensure the preservation of those rights.

Endnote
1. Ohio v. Reiner, 536 U.S. 940 (2002).

David Gerger represents clients in government investigations, trials and appeals. He earned his B.A. from Yale University and his J.D. from the University of Texas Law School, then clerked for two federal judges. Before starting his own firm in Houston, Gerger was an Assistant Federal Public Defender and practiced 10 years with Foreman, DeGeurin, Nugent & Gerger. His court cases include the metal building insulation price fixing trial, the Spring Shadows Glen psychiatry fraud trial, the leading environmental case, United States v. Ahmad, and the representation, along with John Keker, of Enron CFO Andrew Fastow.

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