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Comment by xoa | Hacker News Reader

Ken White, a criminal defense attorney and former US prosecutor at Popehat.com, writes about these subjects, and has an entire series devoted to this sort of thing under the what-it-says-on-the-tin tag of Shut Up:

https://www.popehat.com/tag/shut-up/

His writing makes for accessible, knowledgeable and amusing posts on a very serious topic and are extremely well worth a read. But the summary version is pretty straight forward: there is no such thing as an out-of-the-blue innocent visit from Law Enforcement, ever. This is kind of common sense when you stop think about it: agents are not free and budget is not infinite. If they are actually devoting an actual warm body to talk to you, particularly a warm body to visit you, it is always, always potentially serious. It is not on a lark, they did not roll some dice and have your number come up for a community chat. They're talking to you for a reason and given their fundamental purpose that reason may be quite bad for you, whether you did anything wrong or not. The true super power of government is patience and grinding, relentless inertia. By the time they talk to you odds are high that they have already done their research, extensively. They have a legal theory and narrative already in mind. If the Feds are knocking it's time to get a lawyer, period, particularly if you're fully innocent.

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When two FBI came looking for me, they went to my mother's old employer that she had left 6 years prior. Someone at the school called her and she called me.

I called the agents and they asked if I could meet them at their office. I agreed.

I had invested in a project with an out of state person. He was referred to me by a close friend. When I stopped sending money, the person disappeared. This person had a reputable background, a family and lived in an expensive house. But he'd call me crying begging for money, claiming other investors were closing soon.

I being young and foolish, contacted his partners and my friend. I could had handled it better but I knew I hadn't broken any laws. I did tell him I'd tell everyone he knew that he was a con-artist.

The FBI agents were comically dense. One was dressed in tactical gear. They claimed they had an email I sent where I threatened the investor's young children. I strongly denied this and then asked to see it.

They refused to show me and responded, "We are the Federal Bureau of Investigation not the Federal Bureau of Information". Then they asked me if I was a member of a foreign intelligence service but mispronounced the name.

They told me not to contact the person and I should consider a lawsuit.

Before I met with them, I did ask a US based intel person what he thought. He said FBI agents are sometimes employed by private interests and that I should ask for identification and verify it with the local branch. I'm not sure if this is actually true but it certainly wasn't in my case.

That does not sound like FBI to me but rather like two posers.

Comically dense can be a useful ploy. I had it pulled on me and only long afterward did I learn that the person was not remotely stupid.

I felt stupid, and irritated, afterwards.

Mind elaborating without revealing personal info? This stuff is pretty interesting..

While I agree, these were 2 FBI agents in a town of 100,000 people. And my mother knew the son of one of them. To me, it seemed like the person who scammed me had some law enforcement connections and they did it as a favor.

Certainly some agents are extremely bright, and if you are involved or connected to a serious crime, there's likely to be agents interviewing you trained in deception.

Law enforcement can be incompetent or liars (legally!) just as well as private citizens can.

>Then they asked me if I was a member of a foreign intelligence service but mispronounced the name.

That sounds like it could be a ploy. If you correct them, it proves you know about the agency.

A couple of cops showed up asking for my roommate once. I had no reason to think that he'd done anything questionable, but my first instinct was still to hedge and find out what they wanted before admitting he was in. Turned out they were returning his lost wallet. I was so relieved that I hollered for him immediately, and all was well.

In retrospect, I probably still should have hedged, said "let me see if he's in" and got his okay first. Even if they do mean well, it costs nothing to be cautious.

> In retrospect, I probably still should have hedged, said "let me see if he's in" and got his okay first. Even if they do mean well, it costs nothing to be cautious.

Yeah, I wouldn't put it past a cop to lie to you about returning his wallet.

If you were my roommate you'd get a talking to about answering the door at all. That's what the peephole is for.

This was an apartment building with a locked, windowed outer door and a bellbox. If someone knocked on my front door I could use the peephole, but if someone rang the bell you had to step out into the hall, and then they could see you as well as you could see them.

This was an apartment building with a locked, windowed outer door. If someone knocked on my front door I could use the peephole, but if someone rang the outside bell you had to step out into the hall, and then they could see you as well as you could see them.

You strangely discount the quite reasonable possibility that something serious happened and you have important information about it but are not a suspect. Now, law enforcement can certainly abuse their power, but there is nothing axiomatically entailed that makes a critical witness into a suspect.

True that it's a possibility, but FWIW I think if they're actually just seeking relevant information from a third party who they believe to be completely innocent, they're much likelier to call than conduct an in person interview. And in either case, you are still exposed to legal risk from the interaction.

No, but if they don't have any better leads, they may feel that they want to start investigating the person who knows the most about the crime.

If the police are at your door, and,

1. you know a crime happened around you recently;

2. you saw/heard something;

3. you either feel some sense of moral responsibility in helping to catch the criminal, or you just feel unsafe in your home and want to feel safe again;

then I don't see what's wrong with taking part in a conversation with a police officer that goes specifically along the lines of "we know you were at [place] at [time]" or "[crime] happened in your building", followed by "did you see or hear anyone or anything suspicious?"

Sure, if the conversation goes anywhere else, lawyer up. But is there any risk in providing the same statement when the police come to you, that you'd have willingly provided by actively going down to the police station to give a witness statement?

(Which is, after all, the majority of the interviews the police do. For every one person the police speak to under suspicion, they speak to 5+ other people—witnesses—to figure out who to suspect. This is exactly the "research" you mention above.)

The advice still stands. You have nothing to gain from speaking to the police without an attorney, and everything to lose.

I guess, in the case of a crime committed in my neighbourhood, where I saw something, I see myself as having the safety of my neighbourhood to gain.

And also, if someone was murdered a few blocks down and then you refuse to say anything and say that you want your lawyer, won't that just needlessly make them suspect you for the murder? I'm all for encryption and a right to privacy and so on but I mean when it's obvious they just want to solve a crime and they are looking for info from you as a witness, well I don't see any reason not to be helpful.

No, it would not give them reason to suspect you of the murder. You can learn more from a lawyer here: https://www.youtube.com/watch?v=d-7o9xYp7eE

> And also, if someone was murdered a few blocks down and then you refuse to say anything and say that you want your lawyer, won't that just needlessly make them suspect you for the murder?

You watch too much TV. I know it's hard, but when talking about real life law enforcement, try to forget everything you've ever seen about it on TV. It's about as accurate as the hacking scenes in NCIS.

Saying something you would think is harmless might very well lead them to suspect you. It's not the police's job to decide your guilt or innocence, it's their job to collect evidence and find someone the state can prosecute. Even if you are innocent, it will cost you hundreds of thousand of dollars and being arrested and innocent goes on your record.

The justice system in the US is completely broken. You should be very afraid.

As I understand it, I suppose it could make the cops suspicious, but "So-and-so refused to answer questions and asked to speak to a lawyer first" is legally inadmissible in court as evidence against you.

If the police are suspicious of you, it makes it more likely that they will be inclined to view information recieved from other sources in a light unfavorable to you, and devote resources to investigating you rather than others. Depending on how focussed that gets, you run into the "Three Felonies a Day" problem.

To be fair, if you read up on the 'three felonies a day' book, you find that most of the examples given are fairly contrived. Some of them are things you should absolutely know are likely to be illegal, the rest are situations that require significant legal contortions to be plausible and are unlikely to survive scrutiny by a judge. Average Joe doesn't really go around committing three felonies a day.

But then in the one case the cops have everything someone else said against you; in the other case the cops have everything someone else said against you and everything you incriminated yourself with by opening your damn yap. So clamming up is definitely a strategic option.

One time I had a friend who was robbed in Philadelphia and beaten enough to be hospitalized. A detective came and talked to me, alone, with my parents in another state, with no attorney. He informed me that if my friend died, I'd be a 'prime suspect'! Apparently, based on nothing other than their lack of other information... Or he was trying to intimidate me in case i did know more. I wasn't even 18.

Who knows... you do hear of cases where crimes are pinned on innocent people, seemingly because some DA would rather prosecute anybody than leave it 'unsolved'.

I worked at a pizza chain in college; closing manager on the night shift. Due to some stuff I won't get into here, tons of "safety" stuff in the store didn't work (camera was fake, bell on the door broken, etc), and I ended up getting robbed at gunpoint one evening.

I called the police, they interviewed me. Came back a few days later and did it again. At the time, what I remember feeling like was that they were trying to figure out if I made it up and kept the money rather than actually catching the person who had a gun to my head. I was pissed.

I don't have anything to gain for holding a door open either. I know this is HN, but not all decisions in life are based on benefit to you.

But you don't have anything substantial to lose by holding open said door. This is a poor analogy because the stakes are not even close to comparable.

Sure I do. The person walking through the door could mug me, getting a free first punch at me because my hand is on the door.

The question is, what are the odds? Most people walking through the door don't do that to me.

But if the police come to your door, what are the odds that they're going to treat you unfairly? I suspect, higher than the odds that the person I hold the door for is going to punch me. Are the odds with the police unacceptably high? For me, no. (But then, first, I've never yet been treated unfairly by the police, whereas at least three times I've received better treatment than I objectively deserved. And second, I'm white and fairly conservative in appearance, so I'm probably going to get as much benefit of the doubt as anyone ever does.)

> Sure I do. The person walking through the door could mug me, getting a free first punch at me because my hand is on the door.

What are the highly likely penalties for an assailant attacking you in broad daylight like that, in a society under rule of law?

Now, what are the penalties to the FBI treating you unfairly during a surprise visit?

Further-- in the extremely unlikely event of getting punched in the face in broad daylight because you held the door open for somebody, what's it like to recover? Keep in mind that the public at large, law enforcement, and the court system would very likely all be on your side as you seek medical care, justice and remuneration.

Same question for FBI treating you unfairly after entertain their surprise visit without counsel. What does a recovery from that look like, and who would you likely have on your side?

You are forgetting the situation wherein you are the victim of a crime.

This advice is too generic to be used in every situation. If I see a van drive up, a man come out and throw a child in the back and speed off, I'm damn well going to tell the police everything I saw immediately, without waiting on a lawyer.

Perhaps more obviously, if you've been a victim of a crime—especially one you have reason to believe will likely be repeated or escalated without police involvement—while it might not be a bad idea to involve a lawyer in your law enforcement contacts if you have the means to do so immediately, there may be very good reason to report the crime to police without delay, even if that requires talking to them without an attorney. (And, yes, the basic risks of talking to police still apply. But there are, in this cases, risks of not doing so, as well.)

OTOH, I think the advice is strongest in the case where the police are initiating contact, and you don't have a pre-existing and independent basis to think there is an interest in talking without delay that justifies the additional risk of doing so without an attorney.

To be fair, xoa and Ken are typically talking about Federal agents, not the cops from your local police department.

Ken White would say the exact same thing about talking to the police. I think there's an unspoken subtext to this, which is especially painful on nerd message boards where we contest the existence of unspoken subtext, that you'll still help the police do their job when it makes sense to do so.

> I think there's an unspoken subtext to this

That's very much a mindset from your generation. It's not at all prevalent in the newer (millennial and younger) generations. We grew up with more real world tales of people being screwed over by overzealous police than real world tales of murder, muggings and drug crime. We're more likely to give the benefit of the doubt to anybody suspected by the cops than we are to give the benefit of the doubt to the cops themselves.

Eh, I don't know. Have you lived in a ghetto†? (Not a racial ghetto; I mean a class ghetto—the part of a city usually referred to as "the projects.")

In a ghetto, "murder, muggings and drug crime" are [still] facts of life. In a ghetto, police cars are like beacons radiating "no crazies are gonna try to get in your face" as long as you stay within line-of-sight of one. Homeless people cluster near police stations in ghettos—for protection.

In a ghetto, someone's always passed out on a street corner, and the police are always there trying to see if they're just drunk or if they need to get to the hospital. Once or twice a night (more often on Fridays), you'll see a dude being forced into a cop car while a working girl stands there crying and bruised.

If you live in a ghetto, you've probably been mugged yourself. In fact, it's probably happened more than once. (3 times for me!) As well, you've probably been "threatened"—ended up surrounded by some "friendly" strangers, in situations that could very well have resulted in your death, if you did anything to provoke anyone. You've also probably had people follow you for blocks ranting and trying to grab at you. Or follow you, giving you a "guided tour" you didn't ask for, then insisting you pay them for their "tour" to get them to go away. And each time one of these things has happened, you've likely wished that there was a police officer nearby, but there wasn't; they were too busy dealing with all that other shit above.

If you live somewhere "nice", police officers can seem kind of pointless, and might in fact be a bit stir-crazy and awful. But if you live in a place where they're as over-worked as hospital ER staff with all the shit that goes on each day, you're usually somewhat thankful to have them there. Even if you still do feel intimidated and a bit scared every time you pass by one.

---

† To disclaim in advance: I don't mean one of those weird mid-US ghettos, with the police who grew up somewhere else, likely of a different race from the people who live there; the kind where all the awful racial police violence happens. I mean a ghetto patrolled by its own.

Do the majority of the generations I mentioned come from ghettos? I'm not arguing against the efficacy of the police or whether or not we need them. I'm describing a mindset prevalent among a large number of people. I'm aware exceptions exist.

Yes and no; the majority of young people living on their own in large cities at this point are living in half-gentrified previously-class-ghetto areas, still home to many social-housing buildings, and still with high crime rates. Because these are the "affordable" places to live in a city.

I don't know what percentage of the generations you mention qualify as "young people living on their own in large cities", but I think it's a fair amount. Enough to skew the results against a supermajority having your described viewpoint.

> you'll still help the police do their job when it makes sense to do so.

I bet a black or hispanic man would have a completely different perspective. Hopefully, one will comment.

I bet someone who lives outside the US (say, a British person, or someone from Kenya) would also have a completely different perspective. I would invite those, too, but their perspectives might make the commenters here extremely confused, if they didn't mention they were talking about non-American police.

I live on a majority black block and have watched my neighbors help the police. The notion that black and latino people automatically oppose law enforcement is also troubling. Like (I presume?) most black people, I believe policing is structurally racist. But then, so too is exposure to crime, which disproportionately impacts poorer minority neighborhoods. The notion that black people and the police are natural adversaries doubly victimizes poor black people: first by ratifying the hostility they (definitely) experience from police officers, and second by putting them out of the protection of the law itself.

It's an easy way to try to score points on a nerd message board, amongst an audience of people who are extremely unlikely to experience violent crime. It's also callously instrumentalist. Find a better way to make this point, is what I'm suggesting.

No, the advice, insofar as it applies, applies to all law enforcement; the narrow exceptions may be more likely with local LE thna federal agents, but the general principle is the same, as are the considerations that go into deciding whether an exigency that creates an exception applies (including that you must apply extreme distrust to any statement by the LE agent, local or not, that seems to suggest such an exigency since they can and will lie to get you to believe such a situation exists.)

>If the police are at your door, they might just know you might have been a witness to something, and are there to look for leads (i.e. "we know you were at [place] at [time]" or "[crime] happened in your building", followed by "did you see or hear anyone or anything suspicious?")

And if you accidentally screw up the answer (very possible, people's memories are terrible even without stress and in a rush to answer) you may now be a criminal, or (possibly just as bad) might make them think you're a criminal. The latter isn't even just about you, it's about overall justice and society too: if they're spending time and resources investigating someone innocent, by definition that's time and resources not spent on whomever actually did it.

Like all general guidelines, there are always limited exceptions to the rule, every adult should be able to use their brains a bit and know when considered deviation is justified. Yes, there may be times where instantaneous response really matters, you can perfectly well imagine scenarios where a criminal literally just ran by and an officer runs up asking if you saw them, no of course you don't need to insist on a lawyer. But in most cases seconds/minutes are not of the essence, and the benefit/risk ratio of just invoking your rights and going through the process carefully is so hilariously (or terrifyingly as the case may be) weighted towards counsel that it really should be considered the standard course of action. We are almost always operating at a vast situational knowledge disadvantage in any of these interactions, and it's prudent to take that into account. This isn't about not cooperating or not appreciating the police or importance of justice, it's about proceeding with due deliberation.

With respect, do you have any expert knowledge or personal expertise to base this on?

I don't think this disagrees completely with the cited source!

> So, I say, don't talk to the cops. Ask to speak with an attorney, and get competent advice before you answer the cops' questions. Are there mundane situations in which you might rationally decide to talk to the cops — say, if a neighbor's house is burglarized, and they come to ask if you saw anything? Sure. But you should view each interaction with the cops with an extreme caution bordering on paranoia, as you would handle a dangerous wild animal.

From Ken White, https://www.popehat.com/2014/01/15/the-privilege-to-shut-up/

The police aren't Feds. Talking to police has its own, but different dangers.

My understanding is that in my state filing a false instrument is a criminal act... so a materially wrong report is an issue. With the Feds, much more subtle falsehoods or erroneous statements can be crimes in themselves.

Personally, as a citizen if I witness a crime I have and would report or attempt to provide information to aid an investigation as a matter of conscience.

Local cops may hit you with obstruction of justice, which is usually a misdemeanor that will be resolved in a low level court. This means your defense attorney will only charge $5000-$10000 to take your case.

18 USC 1001 is a felony charge that will be in Federal district court. $25K-$50K in legal fees easy.

As soon as you open your mouth, "what you say" becomes your word against the officer's word.

The officer can write down whatever notes he/she wants, however inaccurate, whether intentionally inaccurate or otherwise, then go testify in court later, under oath, that this is what you admitted to.

Now you're trying to argue to a jury that you(the accused, but of course, presumed innocent...yea right) is telling the truth, and the sworn officer is lying.

That's not a good situation to be in, regardless of your actual guilt or wrongdoing.

There is a reason that anyone who has ever had any substantial contact with law enforcement will tell you NEVER TALK TO THE POLICE. You have a 5th amendment right, and a very well known Supreme Court case Miranda V Arizona that clarifies that.

I personally have seen literally hundreds of cases that would have been dismissed before they ever made it to a jury had the defendant not opened his/her mouth. I make no judgments on the actual guilt of the defendant.

Interesting. So, would you advise—if you do want to give a witness statement, because, say, someone close to you was attacked—just telling the officer (in not so many words) to go away; and then, later, writing out a witness statement and bringing it down to a police station?

Depending on the exigency of the circumstances I would definitely suggest not giving a verbal statement, and preferably consult a lawyer before giving any statement whatsoever to the police.

If your friend's life is at risk or in danger, you may not have some of these options and would have to make a judgement call at that time.

I personally would do almost anything to protect someone I cared without regard to the risk to myself.

See, that's the thing, though; I see this kind of weighted decision-tree logic as only being applicable exactly when the situation has dire risks on both sides.

Disregarding risk when someone you care about is in danger, is exactly how people end up with charges pinned on them, no? If you, concerned about a missing friend, talk to police about how you were likely the last person to see them, then if they turn up dead, you might to blame.

It's important exactly for these cases to be able to know what you should do, and how to do it properly, in order to be able to do the most to help those you love, with the least risk. Not to say "never"; not to say "screw it, this time's different, tell them everything"; but to know the precise shape of the middle path you must tread.

> The officer can write down whatever notes he/she wants, however inaccurate, whether intentionally inaccurate or otherwise, then go testify in court later, under oath, that this is what you admitted to.

In a day and age when every is carrying around an audio recorder, this can be mitigated to some extent, in the case where there may be an exigency which motivated you not to want to wait to get a lawyer involved, by asking the officer to permit you to record the interview.

(Police body cams may also mitigate it in principle, but even in departments which use them they seem to have been conveniently switched off when people are most interested in what they contain.)

If the officer refuses, well, that's probably a pretty strong signal that despite the apparent exigency, you need to involve a lawyer.

I have done exactly this.

Just remember, always remember, that the police don't want the perpetrator, they want a perpetrator. With minimum expended effort.

> Sure, if the conversation goes anywhere else, lawyer up.

That's part of the point.

Once you're talking about the situation or really anything, people tend to continue talking. They don't realize that they've crossed the line or admitted to something else entirely. They don't realize that they should have kept their mouth shut and now they're in trouble. Or something as simple as mis-remembering something that they have proof of and poof now you're in trouble too.

Your pride will cost you.

Do the smart thing. Get an attorney and talk to them FIRST.

Stopping talking because the questioning has taken a turn can be used as evidence of your guilt. Salinas v. Texas found:

"When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question."[0]

Combined with some circumstantial evidence or a mistaken eye witness, you've given the police reason to start building a case against you. Unless you're the one reporting the crime, think twice before you volunteer information to police.

(Not a lawyer, not legal advice, etc., just interested in this stuff.)

[0] http://www.scotusblog.com/case-files/cases/salinas-v-texas/

Did you read the article? It's potentially a big minefield for normal people.

Provide the information anonymously. There are multiple layers of danger in doing otherwise, even aside from the widely cited don't-talk-to-police video. You must consider possible collusion between the police and criminal gangs, for example. The criminals may be using the police to identify witnesses for elimination.

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