You are suspect

Whenever you come into contact with police, you are face to face with a hyper-sensitive, suspicion-seeking machine.  Virtually everyone and everything which comes before a cop is immediately mentally screened and scoured for any possibility of crime.

Admittedly, this behavior by cops can be a good thing because it can sniff out crime.  All too often, though, innocent people find themselves in the cross-hairs of cops’ suspicion rifles.  So-called “Officer Friendly” types are no exception to this truth.  Stay off cops’ suspicion radar as much as possible.  The easiest way to do this is simply avoid unnecessary contact with police.  Whenever you come into contact with police, understand they could be helpful to you, but they often have no idea how to evaluate you, and their default mode of behavior is to be overly suspicious.

Sometimes, of course, you may call police for help or to file a report.  Let cops do their job, which is important, and cooperate to the extent they serve your need, but be on your guard.  Whatever you say can be used against you, and you may be unaware you are under growing suspicion of some unknown crime.

Innocent circumstances create suspicion  

Many people scoff at what I just wrote.  Experience shows it happens frequently.  How could this happen?

Imagine you are speaking with a cop at the scene of a minor car accident in which you were a driver.

You get a little nervous or excited from the circumstances, resulting in you mixing up your words or story, perhaps mistaking the exact route you were taking or misstating a street you used.  While you are talking to the cop, you are thoroughly worried because you are driving your brother’s car, the same brother who is letting you live with him while you are unemployed.  You fear he may decide to kick you out of his home.  You never mention this to the cop because it has nothing to do with the accident.

The cop notices you seem overly nervous or distraught for a fender bender and what you said is not quite right, but he doesn’t say anything to you about his observations.  His ears are perked, and his mental eyebrow is lifted, however.

Telling the truth isn’t good enough

Suppose the cop then speaks with the passenger in your car, and what the cop hears is not quite consistent with what you said.  You nervously told the cop you were just now headed to the grocery store, but your passenger tells the cop you were headed to a friend’s house.  The cop has already noticed some bagged groceries in the back seat of your car.  His vague suspicion about you has just spread to both of you, and you both seem to him to be lying.   Of course, why would you be lying, if you didn’t have something to hide?

You and your passenger know it’s not an actual inconsistency because you were going to stop at the grocery store for a large container of nacho cheese for watching the game at your friend’s house, and your pantry already had some of the snacks you wanted for the game, and you used plastic grocery store bags to tote them with you.  You know the source of your nervous behavior, and it has nothing to do with criminal activity.

Nonetheless, it is common for a cop to suspect either or both of you of some as-yet-undefined crime because you seem to him to have something to hide. You still don’t even know you are under any suspicion.

Cops are just doing what they do

The cop has already determined your comments and behavior as a “red flag” which needs further investigation.  You may hear some strange questions or hear a seemingly innocuous request to look in your car.  You may not be aware of it at that point, but you are under suspicion of criminal activity.

Most people don’t realize cops often lie as part of their jobs, and they can legally lie to you.  In this example, the cop feels justified in lying because you are clearly up to something.

For example, the cop may come back to you and tell you a lie calculated to get you to volunteer to a search; he may say your passenger told him you were smoking marijuana just before your accident and simply wait for your response.  He may be bold enough to reveal to you he noticed how overly nervous you were and the other observations which make you look awfully suspicious to him.  You are not in custody (YET!), and he hasn’t even asked to search, but the cop knows even guilty people voluntarily give consent to search.  He might even put you in handcuffs “for his safety” as he investigates your suspicious behavior.

(To make this story worse, suppose, unbeknownst to you, your brother has a tiny bag of marijuana under the driver’s seat, which was within inches of your reach, and you wind up being arrested for something you didn’t do.)

Your rights are in your hands: Protect them, Lawyer Up

We criminal defense lawyers see this sort of thing happen more often than you might think.

I’ll repeat what I wrote: Let cops do their job, which is important, and cooperate to the extent they serve your need, but be on your guard.

Limit unnecessary encounters with police and be on your guard whenever you must have a police encounter.  Do not consent to searches, do not give statements, do not take police encounters lightly.  Be ready to invoke your right to consult with an attorney at any point, whether you are in custody or free to leave.  You need to be assertive and specifically say you want to remain silent, and say you want to talk to your attorney.

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The feds are proposing a rule change to FINALLY allow commercial drivers to modify the MCMIS to reflect dismissals, acquittals, and reduced charges.

The proposal is a very small step forward in treating professional drivers with a bare minimum of decency and respect, but it does not go far enough. Providing the means for a driver to remove an untrue, unjustified, and sometimes vindictively issued stain against his/her record is only necessary because swift and unreviewed punishment precedes an opportunity to defend themselves.

The FMCSA has effectively turned justice on its head and empowered police on the street to summarily control and sometimes destroy the lives and livelihoods of drivers, as well as undermining the businesses for which the drivers work. Even assuming every officer is honest and conscientious, mistakes are common. 

Basing the entire reporting (and PUNITIVE) system upon mere accusation is horribly unfair and unjust, violating the critical protection we are supposed to have against government tyranny: “innocent unless proven guilty”. The burden of proof should always be on the government, yet the mere accusation by the lowest level government official can easily lead to drivers being immediately fired and possibly becoming effectively unemployable. I doubt employees of your agency would consider it fair for a consumer complaint to result in their immediate suspension without pay and/or firing without any recourse, outside of eventually prevailing in court, with no further recourse thereafter than to have his/her record cleared.

As it is, a driver must affirmatively prove his innocence, often many months later, to be afforded relief from summary punishment. Many times, the damage is already irrevocably done. The entire system is an affront to justice and should be changed. The convenience to the government to punish without an opportunity to be heard does not justify the violation of the right to due process.

Docket No. FMCSA-2013-045

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