The rise of the opioid epidemic has swept up thousands of people into our criminal justice system over the last decade. Prior representing clients in private practice, I served as an Assistant District Attorney in Milwaukee County for approximately six years. As a prosecutor I saw firsthand that drug crimes cut through all socio-economic classifications. Stated differently, substance abuse issues have affected everyone from CEO’s of a large companies to people that have tremendous socio and economic disadvantages.
On the other side of the opioid crisis, is the spreading legalization of marijuana. While still illegal in Wisconsin, many border states have made the move to legalization. These two forces have created a significant legal risk to many people who would otherwise have no contact with our criminal justice system.
I know from experience that if you are reading this it is likely that you, or a loved one, a brother or sister, boyfriend or girlfriend – someone important to you, was recently arrested or charged with one or more drug crimes. The filing of formal criminal charges can seem overwhelming, create a lot of anxiety, and leave you or loved ones with a lot of questions, the first of which may be, what do I do next?
It is my intention for this blog to help you formulate an action plan. If you are reading this you are already doing a great thing. You are being proactive and actively seeking out information that may improve your current situation. You are already beginning to separate yourself from the vast majority of people who will not prepare and will simply react to developments as they arise. Reaction is not a good strategy and you are wise for taking steps to protect yourself from the very beginning of your case.
This blog is focused on providing you with five recommendations that you can use to protect yourself whether you are in the midst of an investigation or already post arrest. Thus, without any further introductory comments, let’s get to it.
Recommendation 1: Do Not Answer Police Questions!
Do not, under any circumstances, answer police questions if you are a suspect in a drug investigation. As a former prosecutor, I saw firsthand a very clear pattern from the cases that I handled, which is this: the vast majority of people the police arrest make statements that are not in their best legal interest. Those incriminating statements were then used against them in court, often times to devastating effect.
In my opinion, invoking your right against self-incrimination is best thing you can do to protect yourself during a drug investigation.
There is a lot of misunderstanding about when and how the police are required to advise someone of their rights. Here is the deal. The police are only required to advise you of the Miranda rights when you are in custody and the police are going to interrogate you.
Interrogation occurs when a cop asks a question that is reasonably likely to elicit an incriminating response. This expansive definition casts a wide net. For example, if I was arrested for having drugs in a car, the question, “is this your car?” is clearly interrogation because it is at least reasonably likely that I may say “yes,” which would be viewed as an incriminating response.
Whether you are in custody for purposes of Miranda is a nuanced topic that is beyond the scope of this blog. However, it is important to understand that the cops will often delay taking you into custody so they can question you without having to inform you of your constitutional rights. As the Miranda warnings indicate, “anything you say can and will be used against you in court.” This is absolutely true.
My rule of thumb is that if a law enforcement officer wants to ask you questions you should not say anything and consult with an attorney as soon as possible.
There may be a reason for you to give a statement to the cops and/or prosecutor, but you should only consider doing so after you have consulted with an attorney in private. This leads into my next recommendation:
Recommendation 2: Consult with an Attorney.
At the risk of you thinking that I am giving self-serving advice, I will state the obvious: if the government wants to take away your liberty, you need an attorney to fight for your rights. If you are reading this on behalf of a loved one, you are doing that person a big favor by researching information that will assist him or her in making make the best possible decision on how to proceed.
Whether you are currently in the midst of a drug investigation or you have already been charged with a crime, one of your immediate objectives should be erecting a barrier between yourself and the government. You have too much risk by interacting directly with the cops and/or prosecutors on your own behalf. By hiring an attorney, you are empowering an attorney to make statements or interact with the various criminal justice players in such a way that it does not expose you to additional legal risks.
You must keep this in mind at all times. The government has more resources than you and it employs trained professional investigators (law enforcement officers) and lawyers (prosecutors) whose job it is to prosecute your case and obtain a conviction.
You need to take your case seriously and prepare yourself accordingly.
Hiring an attorney does not make you “look guilty.”
The police would like you to believe that so you do not ask for an attorney. By contrast, you should think of hiring an attorney as taking a big step towards protecting your vital constitutional rights.
Recommendation 3: Beware of becoming a “Confidential Informant.”
It is very common during drug investigations for the police to ask the person who they just arrested to provide them with information about other people they know that use or sell drugs. The use of confidential informants is largely unregulated by the courts and the care in which police departments supervise and regulate the use of confidential informants varies dramatically.
The police can present the idea of working as an informant in a variety of ways, but the gist of the pitch is generally the same which is you the person that was just arrested are better off working with me (the cop) and giving me information that I desire. In exchange you are hoping the government will agree to dismiss or reduce your case and in some situations that’s exactly what happens.
However, there are at least three huge potential risks for anybody that is considering, or has agreed to, work for the police as a confidential informant.
Risk 1: The police do not have the authority to dismiss or reduce your case. Stated differently, the most a police officer can do is to “recommend” a certain course of action to a prosecutor. The decision whether to issue, or dismiss, formal criminal charges or not rests solely with a government lawyer, a prosecutor, not a police officer. This is a big legal distinction and one in which the cops, at least in my experience, often times gloss over.
If you have information to provide that would be valuable to a police investigation you may be able to use that to your benefit but you want to ensure the discussions about those potential benefits occur with a prosecutor and not with a police officer.
Risk 2: Working on as a police informant is potentially dangerous. There is just no way around this point and one in which the cops generally downplay dramatically. If you want an example of what can go wrong while working as a confidential informant look no further than the murder of Rachel Hoffman who was murdered while she was acting as a police informant during a botched Drug sting in Florida (google it). Ms. Hoffman’s case received a lot of press at the time. However, even after the increased scrutiny that Ms. Hoffman’s murder brought to law enforcement’s use of informants, there continue to be reports of informants getting killed or injured while working as an informant.
Risk 3: The police cannot guarantee that you will remain confidential! If done correctly, your identity would not be disclosed in the police reports. However, there are situations where the government may be forced to disclose your identity and call you as a witness if there is a jury trial. I know from experience as a prosecutor that the disclose of an informant’s identity creates a tremendous amount of stress and anxiety.
Before you agree to assist the police you will be well served by considering the two points that I mentioned above. My recommendation is that you do not engage in any work with the police unless and until you are able to consult with an attorney in private who is advocating for your best interest and not the government’s best interest.
Recommendation 4: Consider Substance Abuse Treatment.
One of the most common questions that I am asked is whether a client should be in substance abuse treatment while his or her case is pending. The answer depends on the case, but here are some general rules.
First, getting treatment will not make you look guilty. In fact, getting treatment makes you look like you are dealing with a difficult situation in a responsible manner.
Second, most people convicted of a drug crime arising from personal drug use will be ordered to undergo an assessment and to follow through with any recommended treatment. This requirement is often a condition for successful completion of probation or extended supervision.
Third, most judges consider the nature and extent of treatment to be one of the most important factors in deciding on an appropriate sentence. In terms of the effect a treatment program will have on the court, the earlier and more extensive the treatment, the better.
Recommendation 5: Prepare for Court.
I firmly believe that a goal without a plan is just a wish. Thus, if your goal is to get through your case in the most efficient manner, and obtain the best possible outcome, you need a plan. I am hopeful this blog will set the foundation for your plan of success. Below are three practical steps you can take to prepare for court:
1. If you have been released from custody and provided with a future court date for the initial appearance be sure to attend court. If you are at all uncertain about future court dates, you should call the court clerk to verify. If you fail to appear in court the judge will issue a warrant for your arrest. Missed court appearances will also increase the likelihood that the judge will impose cash bail in the future. If you are running late, or something unexpected comes up, call the court as soon as you can.
2. Develop a plan for bail. Whether you are arrested and held in custody until the initial court appearance or released from custody and summoned back to court, the odds of obtaining favorable bail conditions improve greatly if you can demonstrate: (1) a stable residence, (2) ties to the community or low risk to flee, (3) proof of employment, and (4) any efforts at counseling or treatment. The importance of these factors will vary by case and jurisdiction.
3. Lastly, I want your experience with Lawton & Cates to be a positive one, even if we never speak or meet in person. I wrote an eBook titled Oh Sh*t!: How to Obtain the Best Possible Outcome to Your Criminal Case, which is designed to help you get closer to your best possible case outcome. The book gives an in-depth explanation of the criminal case process and contains some of my most common recommendations.
There is no cost or obligation for receiving or keeping this eBook. If my book helps just one person see light at the end of the tunnel then my time and effort has been well spent. If you would like to receive a copy of the eBook simply email me at: email@example.com and put criminal eBook in the subject line.