Come Back With a Warrant
Episode 9: Before the Cuffs: Surviving a Pre-Arrest Investigation
Hosted by Brandon Dinetz and Monica Ishak
Intro
Brandon: Welcome back to Come Back With a Warrant podcast. I'm Brandon Dinetz.
Monica: And I'm Monica Ishak.
Monica: Before we kick-start this week's episode, this is your reminder that this podcast is not legal advice. It's real, unfiltered, and for entertainment purposes only. If you need to speak with a lawyer, call one. Or better yet, call us.
Brandon: Call us.
Episode
Monica: Welcome back to Come Back With a Warrant. I'm Monica Ishak.
Brandon: I'm Brandon Dinetz.
Monica: And today, we will be talking about surviving a pre-arrest investigation.
Brandon: This oftentimes comes up when someone's at work and they get a call from, usually, law enforcement, and that officer is interested in talking about something related to, potentially, a crime that someone was involved in.
Monica: And that's usually when the first stage is, like, when you're supposed to really call a defense attorney at that point.
Brandon: Correct. And that's because law enforcement is beginning their investigation, continuing their investigation by trying to get more evidence, and contacting the potential suspects. And at least with that first initial phone call that someone gets, they do not know what the status of that investigation is. The people that are getting that phone call that are the subject of the investigation really only know what the officer is willing to tell them, and officers are allowed to lie and kind of use trickery to confuse or mislead people to have conversations with them.
Monica: Yeah. A lot of people don't realize that cases can be won and lost right here.
Brandon: Yeah. When you have the opportunity to intervene as a defense attorney at the investigation stage, that's one of the places you can be the most impactful, before the case has become an arrest, before there's been the need to speak to the state attorney's office about making a filing decision. When it's just the investigation, it's just the initial beginning, there are a lot of things that can happen.
Monica: Yeah. I agree. And that is actually the first opportunity that our role, defense attorney, can actually, just like you're saying, make an impact on the case, but more so in the actual investigation. So, for instance, if they're trying to retrieve a statement from our client or that person who they're calling, they usually are also introducing themselves from whatever unit they're involved in, so then you kinda get an idea of what it is they're investigating. You know, if it's violent crimes, or special victims unit, or whatever it is, you kinda get an idea of what type of case they are investigating.
Monica: And they don't usually disclose exactly what it is that they're looking for. So, they'll be like, "Hey, we just have some questions. If you don't mind coming down to the station, we can just talk about it." It's super casual, and they try to be very, I think, friendly to the person they're trying to get a statement from, because at that point, they're not informing them that they are usually the subject of an investigation. That information usually comes out when they are already at the station or in front of the police in person, and then that's when I think things maybe start snowballing. Because then they can start saying, like, "We have this video of you," or whatever it is, even if it's not true, because they're able to, like you said, be dishonest and use whatever they get out of whatever dishonesty they present or misrepresentation against the person that they're getting it from.
Monica: So, whenever you get an attorney involved, that's when we're able to be like, "Do you have a warrant?" You know, "We're invoking our right if they're a suspect. You know, we're not gonna be giving statements." And—
Brandon: And we're talking about the— when we talk about the rights that we're invoking, as defense attorneys at this point, we're invoking our client's Fifth and Sixth Amendment rights.
Monica: Yeah.
Brandon: Okay? We don't want them saying anything, so the right against self-incrimination—
Monica: Exactly.
Brandon: and the right to counsel, the Sixth. We are explaining to these officers that, at this point, we are involved and they can direct all communication to us.
Monica: Exactly.
Brandon: Then, we try to figure out what's going on.
Monica: Mm-hmm.
Brandon: We can start asking questions, and we can be very frank with law enforcement. We can share things that we want to. We can withhold information from law enforcement that we want to. Often, it is like 2 dogs at a park sniffing each other—
Monica: Yeah.
Brandon: and trying to figure out what's going on.
Monica: Yeah.
Brandon: The clients that come to us and they are in this process, it's so important that they get to us early. Because we are able to tell them, "Hey, don't have these conversations, at least without us present." They are building a case using you. They either have the case already built and they want the cherry on top, or they don't have any case built and they're using you to set the foundation of what the case is going to be. But either way, that's not — we don't want our clients being the one that are trying to figure that out.
Monica: Exactly. And I was thinking, you know, I don't know if this might sound obvious, maybe, to other lawyers, but I don't know if many people know that 'cause, like, once your attorney steps in, anything we say is not — even though we are their voice, in a sense, it cannot be used against our clients. So, if we're representing something to either the state or law enforcement in this case, that's not something that can come later and be used against your client. So, that is also another benefit to having this person representing you as your kind of shield between you and law enforcement, or you and the government, especially in those stages.
Monica: Because this is the opportunity that you have to kind of block any opportunity for the government to come then and charge you with any crime that they're investigating at that point. Obviously, they can apply for search warrants and get things kind of, even despite our efforts in stopping that. But I think that, you know, even if they do get that warrant, you have an attorney to then review the warrant, make sure it's sufficient, or if there's any issues with it, you can address it then. And then they sometimes will give you a heads-up as to warrants so they don't raid your client at work. You know? Or if you have that—
Monica: I find that there's kind of this switch with law enforcement once I get involved. It becomes a little less aggressive from their end, because they understand that this person is taking it so serious that they went and hired counsel at this point, and that they are going to be checked if they are doing anything kind of the wrong way or they stray away from what proper procedure is. So, I find that most of the time whenever I step in, law enforcement is usually friendlier with me than they were with my client when they were calling them initially.
Brandon: That's fair, and I think the law enforcement speaking with defense attorneys, there are a lot of different approaches and angles, right?
Monica: Mm-hmm.
Brandon: You expect from movies and TV that the defense attorney's coming in all hot, "I'm invoking my client's rights," you know? Figure it out, pound sand. In reality, we wanna know what's going on. The law enforcement officers can tell us what's going on. They can give us the breakdown of what their case is, what the investigation is. And oftentimes, there is going to be a point where we do need to coordinate something with law enforcement so they know, "There's a professional on the other line that I'm coordinating with," if a client has to turn themselves in or if there has to be evidence turned over, et cetera.
Brandon: That can be coordinated between the officer and the defense attorney, and that makes the process less hostile and a lot less dangerous. Because if you can coordinate when your client is going to be turning themselves in, that avoids them being arrested and something potentially bad happening during that arrest. We see that all the time, that arrest warrants being served, things happen left and right. We've had cases against each other where there's been an arrest warrant being served, things happen, and other people get charged.
Monica: Yeah. It can get out of hand.
Brandon: So, knowing that there's that ability to speak with the defense attorney and coordinate makes things easier. The relationship between law enforcement and defense attorneys is important. And one of the things that we definitely talk about on this show is the other viewpoint, kinda what's going on. If we look at an investigation and we start looking at the investigation point from the side of law enforcement, what are they doing by the time they reach our client?
Brandon: Well, how does the investigation start? We know that there's some sort of complaint, allegation. There's something that the police get information on and they now need to investigate, whether that's a 911 call, whether that's a neighbor calling in a complaint. We don't know exactly where it's coming from, but that's how it starts. They go out, they start their investigation, and we hope they do a thorough investigation, that they're looking into any allegations that are being made, they're checking the credibility of those allegations, they're looking at evidence if there's surveillance or if there's other people to talk to, they're doing those things.
Brandon: And then comes the interaction with our client, okay? When we get to that point, any number of things could already be happening. They could be ready to send the case to the State Attorney's office, they could be ready to arrest our client, or they could just have somebody's word that's an alleged victim and then want our client's word to see if it's a he-said-she-said type of situation. And it could be anything at that point.
Monica: Yeah. And the times where I have experience where they do want — they're at the stage of ready to arrest, usually when we coordinate a turn-in or coordinate for them to either receive, like, a notice to appear or whatever it is, I find that they've been more likely to give them a notice to appear, which is effectively the same as an arrest. You get your court date, but you don't go into custody. So, that's also something, obviously, if it's not a super serious case. If it's a serious case, they're going to be arrested. But if it's, you know, maybe a misdemeanor they're investigating or a lower-level felony and this person doesn't have crazy history, because that's something that also can be considered by the officer. They have discretion to issue a notice to appear versus an arrest.
Monica: And I have found that it is just so much more beneficial to the client in general if they see counsel from the jump. And this was something that I actually didn't have experience with at the Public Defender's Office, and same probably with you at the State Attorney's Office. I know you guys had, I think, like, a week where you were on rotation—
Brandon: Mm-hmm.
Monica: for certain things, which you can talk about, 'cause I'm not really privy to that information or the process. But the Public Defender's Office, you get appointed at the first court date. So, you're not really involved at any point prior to arraignment or, you know, if it's first appearance that you're handling, whatever it is. You're not appointed prior to that, so you don't get to see the inside of what a pre-arrest investigation is until you go into private practice.
Monica: So, that was something that was kinda new for me when I went into private practice, where I was like, "Oh, okay. Like, this is really my opportunity to do anything I can outside of court with law enforcement." 'Cause at this point, state attorneys are not involved when it's pre-arrest. They are not—
Brandon: Mm-hmm.
Monica: involved in this process unless it's like, you know, they're called out to the scene on the night of the crime or something and they're applying for a search warrant. But like, things like that — usually they're not involved in the process of coordinating a turn-in date. They're not in the process of the investigation of law enforcement, of who they need to speak to, taking a statement and all those things. It's usually just the defense attorney and law enforcement.
Monica: So, at that point, it's just so important to not only retain counsel, but listen to — I think more than any other stage in the proceedings, like post-arrest — the most important time to listen to your attorney is during that time, because you can really avoid a lot of, like, issues for yourself, like in the process, or with the actual evidence—
Brandon: Mm-hmm.
Monica: for your client. So, I think that's huge. And it's really, the onus is on them. Like, they have to be like, "Okay, I should probably call a lawyer." You know?
Brandon: Yeah. And one thing I'll touch upon, as a prosecutor, I got to see certain parts of the investigation stage. When you are at the state, there is a rotation of people that are on duty. And the on-duty prosecutor gets phone calls after hours from law enforcement that are seeking a warrant, whether it's an arrest warrant or a search warrant. And those calls come into the prosecutor. The prosecutor has to weigh whether or not they believe that this is the type of situation where an emergency warrant is required, and if so, the warrant is written up and drafted by the law enforcement. It goes to the prosecutor to take a look at. The prosecutor approves it. It gets sent from the prosecutor to a judge, and it goes — or from the officer to the judge directly. And then the judge reviews it and then signs the warrant from their computer.
Brandon: There's still the concept of, "Hey, man, you gotta go wake up the judge."
Monica: Right.
Brandon: That still exists, but it is a lot more computer involved now. It's wake up the judge with a phone call, and then the judge logs onto their computer, checks the warrant and then signs it. Sometimes the police do show up and meet the judges in person in the middle of the night and they sign warrants. It all does happen. As far as being a prosecutor, I was privy to the investigation at that stage—
Monica: Mm-hmm.
Brandon: in certain cases, but really only when I was on-call. Otherwise, I wasn't privy to anything that happened pre-arrest. When I became a defense attorney, I learned how important it was—
Monica: Mm-hmm.
Brandon: and it is, to be involved pre-arrest. If I can get involved and I can speak to the officers, there are occasions where there's information that I can provide the officers that will lead to my client not being arrested at all.
Monica: Yeah.
Brandon: And the charges not occurring. There's sometimes information, a lot of times it happens in leaving the scene of an accident cases—
Monica: Yeah.
Brandon: where I can provide the officers with information and my clients ultimately do not get charged.
Monica: Right.
Brandon: Or there's information that they already have that I can either tell them is accurate information, meaning, you know, again, in leaving the scene of an accident is the case where a lot of times there's heavy pre-arrest involvement.
Monica: Yeah.
Brandon: Things come up all the time where you're speaking to officers about the owner of the vehicle, potentially who was in the vehicle, and a lot of those conversations can be had and your client's not involved in those conversations, and depending on how they go, the officers may realize, "Okay, well, barking up that tree, going after that person isn't the right move at all," end the investigation and it's done there.
Monica: Mm-hmm.
Brandon: And your client never has to see the inside of a courtroom or jail or anything like that. That's the best case scenario as a defense attorney dealing with the investigation.
Monica: Yeah.
Brandon: Right?
Monica: For sure. And the other part is having the ability to later say, if it doesn't go in that route and you end up getting arrested for any reason, if you have somebody that's checking police and being able to be like, "Okay, that's fine. Whatever," or, "We'll coordinate a meet-up," or whatever, all of those scenarios can later be used in front of the judge to say that you were cooperative throughout the investigation even though you were invoking—
Brandon: That's a great point.
Monica: your rights. So like, that is something that — invoking your rights can never be used against you in later proceedings.
Brandon: Right.
Monica: But what can be used against you is that you were not cooperative — whenever you were asked to do, to make it easier on you for the process, in terms of, like, coordinating a turn-in, let's say, versus them getting an arrest warrant and coming to execute it at whenever, wherever you are—
Brandon: Mm-hmm.
Monica: and that's something that, actually, the courts consider. And I think that it's weighed heavily whenever you're asking for a bond release or any sort of, like, mitigating circumstances. You can always point to things that happened pre-arrest, where you were actually involved in helping, in a way. Not helping them — I don't want to say helping law enforcement arrest you, but kind of cooperating in terms of getting the process done for everybody involved.
Brandon: Right, so it's not a violent incident.
Monica: Right.
Brandon: And the other thing is, you know, I talk about this in other places, but when you are getting arrested, your behavior while you're getting arrested is going to impact your case. And I tell this to people all the time: screaming that you know your rights, screaming about who your father is or that you're gonna sue them or that, "Wait till your lawyer gets them in court," none of that helps your case and it oftentimes makes things worse for you.
Monica: So much worse.
Brandon: I have never had a client that I've surrendered behaved that way during an arrest.
Monica: No. And I think, ultimately, the people that self-surrender, the process is a lot smoother.
Brandon: Yes. Often, they're going into custody and coming out of custody is one, 2, 3. It's a smooth process. There's nobody that's concerned about their safety. I've turned over clients right to officers and they've, you know, put the handcuffs on the front of them and they've walked them into the jail. Like, it's a very different scenario than what you see on TV where people are having these crazy reactions when they're getting arrested or they refuse to get out of their car—
Monica: Oh, my God.
Brandon: and then it becomes just chaos. When you have a defense attorney, those things don't happen.
Monica: Well, yeah, and you also have the opportunity to mentally prepare your client so they kind of know what they're getting themselves into prior to. And you explain to them the benefits of doing this.
Brandon: Right.
Monica: So, understanding that, they have a huge incentive to just zip it and not act out. And, you know, it is on TV, but I do see it on body-worn camera whenever I get my evidence. Sometimes I'm like, "Why? Why?" You know what I mean? Like, just let the defense attorney handle everything when it gets to court, because at that point, they've already decided to arrest you. Nothing you say at that point will keep them from arresting you. If anything, you're giving them opportunities to charge you with resisting or resisting with violence, resisting without violence, whatever it is.
Brandon: Right.
Monica: Or if you give a false name, that people do that sometimes, you know. That's obviously, if it's pre-arrest, that is unlikely to happen. But it's just the way you act, like you're saying, during arrests, is huge. And you're really giving either yourself or them an opportunity to act accordingly. So, I think we can also talk about maybe the common mistakes that people make when they are contacted by law enforcement in the pre-arrest investigation stage.
Brandon: Well, the biggest mistake that somebody makes when they're contacted by law enforcement in the pre-arrest stage is talking to law enforcement.
Monica: Yeah.
Brandon: The most that somebody should be saying to law enforcement is, "Can I give you a call back? Please, can I have your number, your name, your badge number, and I'll give you a call back?"
Monica: Yes.
Brandon: That's about it. Anything else is gonna cause a problem. So, put the phone — take the phone call, ask for their information, and then give it off to your defense attorney to handle it. Something that lawyers, doctors, professionals — I don't even know why I'm giving a caveat. Something that everybody needs to understand is you cannot talk your way out of these situations.
Monica: Yeah.
Brandon: You can talk your way into the situation where you get arrested, but you cannot talk your way out of it. There is just nobody that can, and it doesn't matter who you are. It doesn't matter that we do it for a living. It's not gonna happen.
Monica: Yeah.
Brandon: If the officers are going to arrest you, if they're there to arrest you, if they've made the decision in their investigation that it is time to arrest you, it is happening.
Monica: Yeah.
Brandon: Let it happen. Shut your mouth. Be respectful and let your lawyer handle it.
Monica: Yeah. It's really it at that point.
Brandon: Yeah.
Monica: That's so true. And also, along with speaking is also consenting to searches. Obviously, when you get arrested, the police are able to search your person. But, you know, searching the inside of your house or maybe your phone. You know, I have a pre-arrest right now where they're wanting to search my client's phone. And I'm like, "Do you have a warrant? Let me see the warrant. Come back with a warrant."
Brandon: I have a client who, his first interaction with law enforcement in this case was them serving a warrant to take his cell phone. So, they took his phone, and then now he's been charged with aggravated battery. And—
Monica: Yeah.
Brandon: armed robbery with a firearm. That process of search warrants on phones is such a brutal process, because you're most likely never getting your phone back. And—
Monica: Yeah.
Brandon: if you do, it's going to be at the very end of your case after they've like extracted everything out of it. So—
Monica: Well, here's another big mistake, opening your phone for law enforcement.
Brandon: Yeah, exactly. Don't unlock your phone.
Monica: Exactly. Don't consent to that search.
Brandon: You can't get into an iPhone. Well — you can get phone records from an iPhone, but getting into an iPhone and getting into the apps and stuff is something that they — there was terrorist attacks on other side of the country where they couldn't get into the iPhones. I mean, I don't know.
Monica: If they have a search warrant, what they include in the search warrant for phones is like, the person who's like the owner of the phone will provide all the passwords and all the whatever, so they can actually get into — and it won't just be the phone. It'll be like social media or whatever else they have like listed in there. But I've had a client in the past where they've searched their phone, and they were required in the warrant, to provide all of the passwords and passcodes in it. But still, they can't get into the phone.
Brandon: Right.
Monica: The person would have to — but, so a warrant can require you to give your password and—
Brandon: Yeah.
Monica: everything else, but the consent, on its own, you know, if they don't have a warrant, then don't consent. Don't give them that, don't—
Brandon: Right. Well, of course, right.
Monica: Yeah. So, that's huge. But we were — I was thinking also, the other mistake that people make is destroying evidence. And that's kind of related to like the phone situation. And, you know, once you hear that police are investigating you or potentially something related to your phone, if you delete any evidence on there, you can then be charged with tampering because you've been notified that there was an investigation going on. So, that's also another reason why you should have counsel, because there have been times where, you know, it sucks to know that they're investigating your phone, but you can not delete that evidence because that's a felony. You can get charged with a felony.
Monica: So, and there are ways for them, if they do get a warrant later on, for them to see if it was on there and later deleted, because it's always backed up into this like folder or whatever it is, where they can then extract it. And they have like their experts or whatever — do their like computer things to get their extractions done.
Brandon: Yeah.
Monica: I don't really know the process of that. But—
Brandon: The technology gets you. I mean, that's one of the things, in seeing it as a prosecutor and seeing it as a defense attorney, the technology that you have is usually the number one thing to get you caught. Or, it's up there.
Monica: Or—
Brandon: It's up there, because whether it's GPS data, conversations that you had, posts that you put up, when they can figure out where you were and what you were doing and it's just from your phone, it turns your phone into your enemy when it comes to a criminal investigation.
Monica: Yeah. And it has like all of these — basically, every app that you use, you pretty much consent to it tracking where you're at and what you're doing.
Brandon: Mm-hmm.
Monica: Or if you're sending messages, it has a backup. You know, like Snapchat and all these things that you think go away after 24 hours, no, it's still in the cloud somewhere where they're able to retrieve that information if they need to or if they have a warrant. So like, those are other things that can later come up if you choose to delete or try to get rid of evidence. They can then come back with that. And another mistake is people contacting other people involved in the potential investigation.
Brandon: Oh my gosh.
Monica: Yeah.
Brandon: Well, that's—
Monica: Like I'm cringing thinking about it. Yeah. And I have seen that recently too. If you think that these other people are not being monitored—
Brandon: They might be—
Monica: by law enforcement during this—
Brandon: They might—
Monica: I mean, there's an active—
Brandon: They could be snitching.
Monica: a huge — correct.
Brandon: And there could be a huge active investigation. You have to assume either that the phones are being listened to or that the information that you're sharing is going to make its way back to the police because the person's going to snitch or the information is not just between the 2 of you.
Monica: Yeah.
Brandon: Um—
Monica: And that's huge because if you have an attorney—
Brandon: Right.
Monica: it's attorney-client privilege. Like, even if they are tapped into your phones, they are not allowed to use that against you. They're not even allowed to be listening to it. Like, that technically should be destroyed. But anything outside of that, if you're talking to anybody else that does not have like a privilege, which we can talk about privilege, you know, that could be like with your, if you have, you know, a spiritual leader that you can confide in.
Brandon: Rabbi.
Monica: Yeah.
Brandon: Priest.
Monica: Yeah.
Brandon: Doctor.
Monica: Yes.
Brandon: Psychologist.
Monica: Psychologist — exactly. Those are the common privileges. Attorneys have that with their clients, so everything we talk about is protected. But when you talk to your friends about it over the phone, that could be — if they're listening to you, they can hear it. So, like, even people maybe not involved in the investigation, if you're contacting them and they're maybe tapped into something, you don't know if they have, you know, they're listening to either your friend's line or your line, whatever it is—
Brandon: Mm-hmm.
Monica: You could end up, you know, providing evidence that you really shouldn't. If you had just hired an attorney and listened to them not to talk, that's the first thing I tell every client, "Do not talk to anybody about this case."
Brandon: And I think if you hire an attorney from the beginning, that prevents a lot of these issues from happening because your attorney will advise you, "Hey, here are the things to not do and that you can do moving forward." But if the rules are laid out and the person understands them, they can avoid some of the traps. That doesn't happen for a person that doesn't know the law and doesn't know how the investigations work. So, if you don't have an attorney, you're open to all of those problems happening.
Monica: Yeah.
Brandon: You're open to being taken advantage of by law enforcement. You're open to being taken advantage of by co-defendants. You're open to being at risk of making your situation worse because of the things that you're gonna say or do. Whereas having an attorney should advise you to not do those things, ideally.
Monica: Yeah.
Brandon: And if you follow that, you're putting yourself in the best position given whatever situation you're in.
Monica: Yeah, and it's every single step of the way. It's advice every step — like, before you or law enforcement really do anything, before there's any movement on the case, which obviously law enforcement can go and get their warrant separate from contacting you or your attorney. But I oftentimes try to establish some sort of rapport on the first phone call with the law enforcement officer that's the head investigator. And I will tell them, you know, if there is a warrant down the line for anything, please give us the courtesy and we will cooperate. And I do try to make it known, you know, that's before I even know anything, but I just want them to know where we stand because if you have a warrant, send it to me first, but if it's legit, it's good to go, let's go, you know?
Brandon: Mm-hmm.
Monica: Like, what are we gonna do about it? So, that gives your client the opportunity — like we said, opportunity to be mentally prepared, opportunity to prepare physically to go into custody because, you know, you go in, they take everything from you. You don't, if you don't want everything in their possession, you can just leave everything at home and go in, you know, ready to go. But those are things that really are meant to protect people more than anything, and it's such a crucial stage in, out of all of the stages.
Monica: Obviously, this entire thing is important because it comes down to someone's freedom and their livelihood and their future. But, you know, this could really affect so many different aspects of your life, especially if, you know, nobody wants an officer showing up to their work being like, "We're here to speak to XYZ." Like, it doesn't even matter if they're talking about what it is that they're going to be talking about or if they're there to arrest that person. Like, at that point, I think everybody will be like, "Oh, no." Like—
Brandon: Mm-hmm.
Monica: "Why are they here? Why are they at my work of all places?" Like, "What is my employer gonna think?" Especially if you're a professional or maybe a teacher, you know, you might have a job where you really can be investigated within your job just because a law enforcement officer showed up just to ask to speak with you. So, that is huge and I think that, you know, if you have an attorney involved in that process, we can avoid that from even happening from the jump.
Brandon: Mm-hmm.
Monica: You know? It's like, okay, if you wanna talk to them—
Brandon: We can set up a time and a place to meet and talk.
Monica: Exactly.
Brandon: If that's the way that it's supposed to happen.
Monica: Exactly.
Brandon: That's a huge benefit to your client because they don't have to deal with that embarrassment that you're talking about and they don't have to worry about some of the collateral consequences of just on a criminal investigation. Because remember, if the investigation goes nowhere and it ultimately becomes nothing, then great. Then that was just this little thing. But if you were at work when this was happening, now it's a whole—
Monica: Yeah.
Brandon: big issue.
Monica: Yeah.
Brandon: And people don't forget about the time when the police showed up to talk to you at work.
Monica: Yeah.
Brandon: Or wherever you work, whether you work at Subway or you work at a high school.
Monica: Yeah.
Brandon: People don't forget that.
Monica: Yeah.
Brandon: So avoiding that is huge, and having a defense attorney can do that.
Monica: Yeah.
Brandon: The other mistake people make is ignoring police entirely.
Monica: All together. Yeah.
Brandon: Yeah. Which is not necessarily the worst mistake. I'd probably put it on the lowest. If you're gonna make any mistake, this is probably the one to make, but I'm not condoning this.
Monica: Okay.
Brandon: Just because they — ignoring the police can't really be used against you other than the police or state or government saying in court that you weren't cooperative.
Monica: Yeah.
Brandon: And it won't make—
Monica: Some consciousness of guilt arguments, I guess. Yeah, and it would — I mean, it just obviously would make the process harder, kind of like what we're talking about.
Brandon: Mm-hmm.
Monica: But I don't see the worst harm that could come of that. You know what I mean? 'Cause usually, like we said, the worst mistake you can make is speaking to law enforcement. So ignoring law enforcement can't be worse than that.
Brandon: Fair. But if you know that law enforcement is investigating you, then there's a pretty good chance it's not going away.
Monica: Yes.
Brandon: Whatever that investigation is, if you're aware of what it is, then you know this is probably not something that's going away. If you were involved in a collision or an accident and you left the scene, and it was bad, you know it's not just gonna go away.
Monica: Yeah. So—
Monica: 'Cause they can continue— your point is that they can continue their investigation.
Brandon: Right.
Monica: Whether they speak to you or not—
Brandon: is not gonna prevent them from going forward with the investigation.
Monica: Yeah.
Brandon: They oftentimes can just, you know, say, "Oh, well, we never got your side of the story, so we decided it's time to arrest you." But that shouldn't ever be incentive to give your side of the story. That's just common police tactic that—
Monica: Exactly.
Brandon: if we get your side of the story, you know, we just want your side or we just wanna hear your position or what you say happened.
Monica: Or that we're taking basically all the statements in consideration and like—
Brandon: Right.
Monica: one of them is yours, even though you're a primary suspect. Like that oftentimes comes in, like, he said/she said cases or domestic cases, you know, and the worst is, like, when — if it's a self-defense case and they start talking, and then they're gonna flip it, you know?
Brandon: Mm-hmm.
Monica: And it's gonna be, "They admitted, they admitted to touching them." You know?
Brandon: Well, that often happens is people think if they admit to something—
Monica: Mm-hmm.
Brandon: less serious than what the major issue is, then, oh, that'll make it go away.
Monica: No.
Brandon: That doesn't help.
Monica: No. It doesn't happen.
Brandon: Yeah.
Monica: And you'll just get in trouble for whatever that thing is. Believe them when they tell you anything you say will be used against you.
Brandon: Yeah, it will be. It literally will be. It will be used against you.
Monica: Yeah, yeah. And then another mistake, and this kind of goes into talking to people on the phone but putting things online. People love to put things on the internet. Even if it's on your story, stop putting your business out there.
Brandon: Yeah, that's true. I think there are so many — I was shown a video on my way here today of somebody doing illegal tricks out on their motorcycle in front of somebody's house, and there's a big case going on in Broward with aggravated stalking, and— anyways, this guy is revving and riding his motorcycle and, like, doing wheelies and stuff in front of another guy's house. And there's all these injunctions and things in place, and it's a nightmare situation in Broward.
Monica: Oh, my gosh. Yeah, well, then that stuff ends up coming into discovery because there's Ring cameras and—
Brandon: Yeah.
Monica: it goes on social media, and there's screen record, and the police will be monitoring social media. Like, they know that people will put it on the internet.
Brandon: Yeah.
Monica: So that's an option for them to—
Brandon: And they—
Monica: Not just the police.
Brandon: The — in this one case that I'm thinking of, the HOA is getting involved, because they saw these videos of this guy doing this in front of his house. So, you know — stop.
Monica: Yeah.
Brandon: Stop putting everything online. We put a lot online, okay? We're lawyers, and we are trying to market ourselves or market different messages or give people advice or give people entertainment. But that's fine compared to half of the things that we see or more than half the things that we see online where it's just, like, you can get likes and clicks without committing crimes online.
Monica: The most common thing I see online is usually people posted up with their guns.
Brandon: Mm-hmm.
Monica: And the amount of times I've had that as evidence in, like, a delinquent in possession or felon in possession case, I'm like, "Oh, my gosh." Like, "Did you really think this was a good idea?" Because also law enforcement, if they're heavily policing a certain community, they start getting familiar with faces, and they start knowing people in the community, and they start knowing their nicknames or their street names or whatever.
Brandon: Mm-hmm.
Monica: And at that point, they're, like, just checking for fun, you know? They're like, "Let me see what Smokey's up to this weekend."
Brandon: Yeah, and oftentimes Smokey is putting on a pound of marijuana, his gun—
Monica: and, you know—
Brandon: illegal gummies and whatever else, and just Snapchatting it out—
Monica: And a lot of cash.
Brandon: and just like, yeah.
Monica: It's like — you don't need to do that.
Brandon: Yeah. Let's not do that. That's making our jobs harder.
Monica: Much harder. Because they will inevitably get in trouble for it, and it does make our jobs more difficult to say that they are innocent and try to mitigate the situation, when you're especially talking to prosecutors and you're trying to go into—
Brandon: Hmm.
Monica: how good of a person your client is and why they shouldn't throw the book at them. When they flip through their file and they pull out a picture of your client with a stack of cash, a grill and like, you know, a pound of weed—
Brandon: Clearly thinking he looks real cool.
Monica: it's not great.
Brandon: Right. Yeah. It's not great.
Monica: It takes away from the argument that he's a really great member in the community. Maybe he is.
Brandon: Yeah. But posting that stuff doesn't help.
Monica: No.
Brandon: Not even a little bit. And it often comes back around and hurts the case.
Monica: Yeah. And you don't know who might be snitching on you or who may — like even if it's on your close friends or whatever, like maybe you're like, "Oh, maybe I won't put it on My Full Story." No. Do not put it anywhere, because if it's on, even on your close friends, you don't know, let's say it's a drug case where it's like guns, drugs involved in the photos, money in the photos. That could be maybe a trafficking charge, or it could be with intent to sell.
Brandon: Mm-hmm.
Monica: Whatever it is. And if somebody that you sold to is being investigated, they have an incentive to be like, "This is my dealer." Because usually the officers are not interested in the buyer. I mean, yeah, the buyer might get a possession, simple possession charge, but if they are cooperative, they usually avoid it or it gets reduced. They're usually after big dog or the guy that's running the enterprise, or the guy that's doing all the sales, so they're trying to go after that guy.
Monica: And if they have that to show, like, this guy is actually involved in whatever, and oftentimes it is. I've had cases, it's always like the drug cases, the firearm cases, where it's like those are pieces of evidence I always get where it's like they're posted up online with their photos and their guns and their drugs, whether it's weed or not, and then they end up — that leads to another piece of the investigation. They start following them around, and then they get a warrant, and then the whole thing just trickles into another thing. But you do not know who's watching your story. Even if you think you trust them, do not post that. You know?
Brandon: And for the real drug dealers, their bosses are watching.
Monica: Yeah.
Brandon: That's gonna be bad. Bad. You don't see the top bosses posting on—
Monica: No.
Brandon: you know, TikTok with like their money and guns. They're low-key, very low-key.
Monica: And tigers and whatever else they own. Like, you don't see that.
Brandon: There's a reason.
Monica: Yeah.
Brandon: Because they don't wanna get in trouble for dumb things.
Monica: Yeah.
Brandon: And if you are already committing a law violation, don't commit another one at the same time. That's what — my criminal law professor in law school, Megan Chaney, who I love to death, one of the things she said was never commit 2 crimes at once. If you think about it, like your odds and the chances of you getting in more trouble—
Monica: Yeah.
Brandon: are coming from that other offense.
Monica: Yes.
Brandon: Oh my God.
Monica: That's so true. You know?
Brandon: You have drugs in your car, you weren't gonna get stopped if you weren't speeding.
Monica: Yeah.
Brandon: You know, there's just certain things that you don't need to commit 2 crimes at once. So, if you are out there and you are selling drugs, don't put it online.
Monica: Yeah. Pretty simple.
Brandon: Yeah.
Monica: And no, and it's also like, to that point, consciousness of guilt. The government loves to use opportunities to say that this person did X, Y, and Z after they committed this crime, whether it's a new crime or maybe not a new crime, but kinda sketchy. They can use that act to show that you were acting that way to avoid getting in trouble because you knew you did something wrong, and that's something we call consciousness of guilt.
Brandon: Mm-hmm.
Monica: And that is oftentimes their opportunity to be like, "Well, that's how you know—"
Brandon: Right.
Monica: "they did this with criminal intent." That's how the state often proves intent—
Brandon: Yeah.
Monica: is through the guilty mind of the person and showing, oh, clearly they're guilty, they ran. Clearly they're guilty, they refused to give a breath sample.
Brandon: Oh my God.
Monica: Like—
Brandon: Oh, my God.
Monica: that's a very easy way for prosecutors to prove parts of their cases and if you're giving them all of that ammunition on social media through pictures of things like ammunition, it is a problem.
Brandon: Yeah.
Monica: Yeah. Yeah, exactly. So, just, I would say in terms of pre-arrest, the most important thing is make sure you are honest with your lawyer as well. Like, if that stuff has already been done in the past and you are now realizing that there's things that were put out into the social media world or internet where things could come back and bite you, if you are aware or thinking about it because you got that call from the police, let your attorney know so that way we are able to kind of mitigate as much as possible or maybe try to understand what the police are trying to get or if they are privy to that information.
Monica: Because oftentimes I don't volunteer information to law enforcement. They have to do their own job and try to figure that out, but I'll, you know, try to finesse my question to be like, "What do you guys got against my client?"
Brandon: That was some finessing. "Well, what do you guys have?" I'm real smooth.
Monica: Yeah, that's—
Brandon: You know?
Monica: That's some killer finessing.
Brandon: Yeah, I usually, like, depends on what's going on, but I'll be like, "Yeah, so, like, why are you here?"
Monica: "Why are you guys—"
Brandon: "Uh, heard you're investigating our client. What's up with that?" "Tell me more about why you're—"
Monica: Yeah.
Brandon: calling us, please."
Monica: Yeah. "I'm their attorney. What do you want?" And then they're like, "Um, well—" Yeah, that gets you real far.
Brandon: Yeah. I mean, usually get something.
Monica: Well, you can be friendly when you invoke your client's rights.
Brandon: Yeah, why not? Try to be nice when I invoke my client's rights.
Monica: Always, because then I'm like, "But if you have a warrant, call me."
Brandon: Right. My client won't be saying anything to you.
Monica: Yeah.
Brandon: But—
Monica: Exactly.
Brandon: feel free to say things to me.
Monica: Yes. Well. And also, the benefit of having an attorney, and I probably said this, but I just think it needs to be — and you did say this actually — is that, like, direct all communication to me. At that point, your client's not getting calls from law enforcement anymore. Once you step in, law enforcement is required to talk to you—
Brandon: Mm-hmm.
Monica: to get to your client. So, that's huge. I think that's a huge, huge, huge protection. Like, there's so much anxiety associated with people speaking to police even in general, or just, like, getting that call, you know?
Brandon: Right.
Monica: So.
Brandon: I have anxiety thinking about my clients speaking to police.
Monica: Me too. Me too. That's like—
Brandon: So, I don't want that.
Monica: No, not even a little bit. Please put me on the phone and hang up. Thank you.
Brandon: Right. Right. You don't need to talk to the police at all.
Monica: No.
Brandon: I've got it covered. I think the big takeaway is when somebody is aware that they are under investigation, hire a lawyer.
Monica: Immediately.
Brandon: That's it. That's the first step. That should be the only step. Hire a lawyer. If you get a phone call from the police and the police are saying to you that you're under investigation, ask them for their information, tell them that you will get back to them, and you give that information to your lawyer and let your lawyer do that.
Monica: Exactly.
Brandon: And that's the safest way to handle it.
Monica: Yeah, because you have to remember, the objective of law enforcement, it's to make an arrest. Make an arrest and close the case.
Brandon: Yeah.
Monica: So—
Brandon: Yeah.
Monica: they're not trying to — their objective is not to protect you. It's not to be there for you, none of that. That's your—
Brandon: No.
Monica: your attorney's job to handle everything for you and protect your rights and protect your liberty, so hire an attorney if you get a call from law enforcement or know that you're involved in an investigation and don't make any of the mistakes that we've discussed 'cause—
Brandon: Let us tell them to come back with a warrant.
Monica: Yeah. You don't need to do that.
Brandon: Yeah. Let us do that for you.
Monica: Exactly.
Wrap-Up
Monica: So, I think that wraps up today's episode. Make sure you check the show notes and like, follow, subscribe, and leave us a 5-star review. We are @ComeBackWithaWarrant.pod on all platforms and if you don't like listening to us—
Brandon: Come back with a warrant. You get it at this — make sure you come back with a warrant.