Attorney Scott Campbell

Criminal Defense Attorney

Category: Criminal Law

Miranda Warnings Are Written In Code

We all know those warnings police give to someone before starting an interrogation: the right to remain silent, that anything said can be used in court, the right to a lawyer, and the right to a free lawyer if one cannot be afforded.  Over the years, I have described these words as being written in code.  I’ll explain.

When the police say “you have the right to remain silent,” that is code for “Shut Up!”  They are telling you that they are just trying to get information from you that they will use to hang you.  There is nothing, nothing, that you can say that will help you.  The police will take anything you say and twist it to fit their agenda.  You are playing their game by their rules; you will lose.

When the police say “you have the right to consult with an attorney before talking to the police,” that is code for “You Need A Lawyer!”  The police are not saying that to help them.  They know any lawyer would tell you not to talk to the police.  Listen to them—get a lawyer.  Do it before you talk to them.  After you have talked to them it is too late. (See the post below titled “Don’t Talk To The Police!”)

Don’t do it to yourself.  Listen to what the police are telling you when they give you those Miranda warnings.  Understand the code.  Don’t talk to them.  Get a lawyer.  Don’t make things worse for yourself.


Do Cops Lie?

Of course they do.  Everyone lies at some point, even if they justify it as a “little white lie.”  Cops are no different, though they want to be thought of as somehow above being human.

I break down the lies cops tell in three categories: the outright lie, the situational lie, and the unintentional lie.  All are just as bad when someone’s freedom is on the line, but it helps to understand the motivation for the lie so an attorney can counteract it.

The Outright Lie.  I have seen this.  It can be the planting of evidence.  It can be the lie that cannot be disproved.  It is intentional, and justified as “he is bad, I am good, and he deserves to be punished because he is bad.”  It is intended to convict someone who has done nothing but attract the attention of a cop who thinks he is a bad person.  It happens more than even police departments think it does.  It happens because the people who do it plan the lie, swear to the lie, and it can’t be disproven.

The Situational Lie.  Police sometimes lie on purpose.  They will tell you they lied and they are allowed to.  Actually, the Supreme Court of the United States has approved a lie in pursuit of the truth.  Frazier v. Cupp, 394 U.S. 371 (1969).  They will tell you that a lie in pursuit of the truth is a “good lie.”  They justify lying because, in their mind, the ends justifies the means.  I think this is just as wrong as the outright lie.  It turns the cop, who is entrusted to tell the truth, into a liar—whether intentional or not.

The real problem comes when they are testifying in court.  Can they turn it off?  Can they admit that they lied while they were doing their job?  It is human nature to say “I always tell the truth, that is why you can believe me now.”  It is much more difficult to admit to lying, then say “but now I am telling the truth.”

The Unintentional Lie.  This one is usually chalked up to different people seeing the same thing and having different points of view.  It involves shading words, hedging on accuracy, and presenting something that can be seen in two ways as absolutely one way—obviously the one that convicts the person on trial.

This lie is the hardest to deal with.  The argument will be “hey, they just see things two different ways.”  But what happens when your side is absolutely true, and the cops testimony is of this type.  It crosses over to the situational lie.

The end result, no matter how it is characterized, is that cops lie.  The next step is to deal with it.  The best was is not to even talk to the cops. (see the post below titled “Don’t Talk To The Police!”)  But, if you just can’t resist talking to someone whose sole purpose at that moment is to put you in jail, at least record the entire conversation.  Don’t rely on them to do it.  All they have to do is say they didn’t record it, or they thought they did but the recorder malfunctioned.  They will lie then lie about lying.  Record it, download it, and email it to your attorney or yourself so it doesn’t disappear.  From an attorney’s point of view, there is not much more satisfying than cramming a lying cop’s words down his throat.

The Failed Attempt To Outlaw Drugs

I read this article by John Stossel.  (edited for space)  It states my opinion of the “war on drugs.”


Forty years ago, the United States locked up fewer than 200 of every 100,000 Americans. Then President Nixon declared war on drugs. Now we lock up more of our people than any other country — more even than the authoritarian regimes in Russia and China.

A war on drugs — on people, that is — is unworthy of a country that claims to be free.  Unfortunately, this outrage probably won’t be discussed in Tampa or Charlotte.

The media (including Fox News) run frightening stories about Mexican cocaine cartels and marijuana gangs. Few of my colleagues stop to think that this is a consequence of the war and that decriminalization would end the violence. There are no wine “cartels” or beer “gangs.” No one “smuggles” liquor. Liquor dealers are called “businesses,” not gangs, and they “ship” products instead of “smuggling” them. They settle disputes with lawyers rather than with guns.

Everything can be abused, but that doesn’t mean government can stop it. Government runs amok when it tries to protect us from ourselves.

“Our discomfort with the idea of heroin available at drugstores is similar to that of a Prohibitionist shuddering at the thought of bourbon at the corner store. We’ll get over it.” – John McWhorter

Drug-related crime occurs because the drugs are available only through the artificially expensive black market. Drug users steal not because drugs drive them to steal. Our government says heroin and nicotine are similarly addictive, but no one robs convenience stores to get Marlboros. (That could change with confiscatory tobacco taxes.)

Are defenders of the drug war aware of the consequences? I don’t think so.

John McWhorter, a senior fellow at the Manhattan Institute, indicts the drug war for “destroying black America.” McWhorter, by the way, is black.

McWhorter sees prohibition as the saboteur of black families. “Enduring prison time is seen as a badge of strength. It’s regarded (with some justification) as an unjust punishment for selling people something they want. The ex-con is a hero rather than someone who went the wrong way.”

He enumerates the positive results from ending prohibition. “No more gang wars over turf, no more kids shooting each other. … Men get jobs, as they did in the old days, even in the worst ghettos, because they have to.”

Would cheaper and freely available drugs bring their own catastrophe? “Our discomfort with the idea of heroin available at drugstores is similar to that of a Prohibitionist shuddering at the thought of bourbon at the corner store. We’ll get over it.”

The media tell us that some drugs are so powerful that one “hit” or “snort” will hook the user forever. But the government’s own statistics disprove that. The National Institutes of Health found that 36 million Americans have tried crack. But only 12 percent have used it in the previous year, and fewer than six percent have used it in the previous month. If crack is so addictive, how did 88 percent of the users quit?

If drugs were legal, I suppose that at first more people would try them. But most would give them up. Eventually, drug use would diminish, as it has in Portugal, which decriminalized all drugs, and the Netherlands, which allows legal marijuana. More young men would find real jobs; police could focus on real crime.

If we as adults own our own bodies, we ought to get to control what we put in them. It’s legitimate for government to protect me from reckless drivers and drunken airline pilots — but not to protect me from myself.

Don’t Talk To The Police!

It happened again.  A person called me to ask if he needed a lawyer.  He explained that he did nothing wrong, but a detective wanted to talk to him about a crime.  He did like most people would do and went to the police station and answered the detective’s questions.  It was the wrong thing to do.  We’re raised to respect police officers and think they are our friends.  When they are looking into a crime, they are not our friends.

How do I know this?  I was there once.  I spent many years as a detective calling people and convincing them it was in their best interest to talk to me.  I was smooth.  I was polite.  It was, in legal terms, BS.  I, like detectives now, was aiming for the goal in any investigation – clearing my case by arrest.

I have heard it called Million Dollar Legal Advice; it is true.  Don’t talk to the police!  You can say nothing to help yourself.  Anything you say can and will be twisted to fit what the detective needs to show to get the arrest.

In all my years as a detective, I only had two occasions when a defense attorney allowed me to talk to their client.  On one of those occasions, I went to the attorney’s office and he commented that he could not believe that he was letting his client talk to me.  It worked out best for his client because no arrest was made, but it was a decision that only a defense attorney should make after considering all angles.   The other occasion involved a highly respected attorney and a high-profile client.  To this day I still don’t know why the attorney allowed the interview.

Your attorney can say the same thing to the police that you can and it can’t be used against you.  If you say it, it can be used against you.  So, again, because I can’t repeat it enough.  Save yourself problems of your own creation.  Don’t talk to the police.  Talk to an attorney first.  The police are not on your side, an attorney is.

The Border Patrol Video

Scroll down and you will see a video of me cross examining a Border Patrol Agent.  I am often asked about the case and how the cross examination of the State’s witnesses went, especially Agent Gomez.

Agent Gomez was in an impossible position.  He was a well-meaning Agent doing what he was told.  The problem for the government was they were running the checkpoint in a manner counter to the Constitution.  This was not Agent Gomez’s fault.  Any agent sitting in that chair would have looked just as foolish because I knew where I was going to take him…the case was there.

For those wondering what happened after Agent Gomez testified, the answer is that the K-9 handler was coming up next and was going to have to explain how his dog could tell the difference between a concealed human and an unconcealed human.  That would have been interesting, but we never got that far.  The Judge dismissed the case on an evidentiary matter (a classical technicality).  The State appealed the dismissal, the case was reinstated, and Pastor Anderson got a jury trial.  The verdict was not guilty.

For Agent Gomez, if you ever read this, my cross examination was not personal to you.  Someone was going to look foolish on the stand, it just happened to be you at that checkpoint that night.

To any potential client, you see my style.  Prepared and direct.  If that is what you are looking for in your attorney, give me a call.

Gideon Should Be Expanded

I recently read an article about the 50th anniversary of Gideon v. Wainwright.  For those not familiar, it is a Supreme Court decision that says that a person who is charged with a crime and faces a jail or prison sentence has a right to a lawyer, even if he can’t afford one.  This decision gave rise to our Public Defender system.  Prior to Gideon v. Wainwright, a person who could not afford his own lawyer on ly got a free lawyer in certain circumstances.

Prior to Gideon, many poor defendants were railroaded into convictions and imprisoned, even executed, without having any legal assistance.  Now, if you are facing even one day in jail you are entitled to a public defender if you cannot afford your own lawyer.

As far as it goes, Gideon was a landmark and correct decision, and a great advancement in our legal system.  The system, however, has found an oft-used bypass to Gideon.  The prosecutor simply tells the judge that the government will not ask for jail time, and the judge tells the defendant that regardless of the outcome he will not impose any jail time.  This leaves the defendant who cannot afford a lawyer to make legal decisions and even go to trial without a lawyer.  It is wrong, just plain wrong.

The government spends a lot of money for police, investigators, and prosecutors.  A person accused of a crime, even one where there is no possibility of going to jail (for this particular crime), is completely out gunned and out spent.  Even a minor crime can have consequences far beyond some jail time, but these are seldom told to the defendant and often even unknown to the prosecutor or judge.  A couple examples:

Some misdemeanors become felonies if there are prior convictions for the same offense.  This is routinely told to a defendant who is pleading guilty, but often only then.  He has not had enough time to consider this impact and factor it into his decision whether to go to trial.

A DUI conviction can keep you from being allowed into a foreign country.  Canada can and does exclude even tourists who have a DUI conviction.  In most states, a first offense DUI does not require jail time, and therefore does not require a lawyer be appointed.  Has anyone heard of a DUI defendant being told of this consequence?

I am sure I could come up with more collateral consequences to a “minor” criminal conviction.  As I see it, any criminal charge should entitle a person to a lawyer even if he cannot afford one.  If the government wants to spend money on enforcement and prosecution, why should it not be required to spend some on the other side?  Seems fair to me.

Legalized Theft

In just another example of how the government is out of control, abuses the power we give it, and has as a main goal extracting the most money out of anyone it can, is a recent client who had her car stolen from her by these zealots who have drunk the Jim Jones juice.

A woman bought a car in her own name (she was married at the time) with cash that she diligently saved (isn’t that what we should encourage?).  Because she overextended herself by using all her cash to buy this used car, she had to take out a title loan to help her over a financial hump.  The loan was in her name only.  She let her husband drive her car and…you guessed it…he was stopped for speeding and the police officer eventually found 3 pounds of plant material in the car.  The husband gets probation.  The wife loses a car.

I filed a claim because this was a clear-cut case of an innocent owner.  Or so I thought.  The County Attorney ignored the claim and filed a Complaint, I think assuming that because the owner had to take a title loan she would not have the ability to fight the forfeiture.  Well, he was right.

I explained the process to my client and my belief that she would ultimately prevail.  Knowing her financial situation, and really believing in her plight, I offered a deeply discounted hourly fee.  I also told her how many hours it would probably take to write the Answer (with the associated filing fee), the Disclosure statement, other filings, and to appear at a hearing (artfully designed to be in front of a judge with no jury…gee, what happened to the Seventh Amendment).  She didn’t have the money.

So, for lack of some money, my client loses all the equity in the car she saved so diligently to buy, the government gets a few dollars after auctioning off the used car and paying the outstanding loan, and my client gets punished more than her husband.

I know there are hundreds of similar stories.  It just hits home when you see it firsthand.

Defending Guilty People

Another question I, and I am sure every criminal defense lawyer, am asked is how I can defend people who I know are guilty.  I think I speak for all defense lawyers when I say that first it is standing up for the “little guy” against a massive prosecution machine, and second it is helping someone at a time that they need help the most.

The government, whether it be State or Federal, is well equipped to investigate and prosecute people.  They have unlimited resources in time, equipment, and investigators.  Many times, a person gets arrested after this massive investigative and prosecutorial machine has already done most of its work.  Other times, a person is arrested then the machine spends its resources justifying the arrest and prosecution.  No one, except the very rich, has resources to match the government’s effort to put them in prison.  So what is a person to do?  Most others would say he should just roll over and take what’s coming.  That, though, is not part of our adversarial justice system and would ultimately lead to a government running roughshod over the rights we fought to guarantee.

The answer is for a defense lawyer to represent the accused.  Someone to stand up and say “hold on, if you’re going to try to put my client in a cage, you’re going to do it by your laws and your rules,” (the government does, after all, pick its own playing field).  Also, someone needs to question whether the zealots that are police and prosecutors are being truthful.  It is sad, but we too often find them fudging the truth, or even outright lying, in their crusade to rid the world of “evil.”  The defendant does not have the knowledge, training, or often the freedom to do this.  It is his lawyer, most of the time a lone wolf, who protects his rights.

The other reason to defend those who a lawyer knows to be guilty is that the lawyer is a professional, and with that comes helping people when the help is needed most.  When people suggest I should not defend someone who has committed a crime, I ask if a doctor should treat a person who has lung cancer after a lifetime of smoking.  Their answer is always “yes, the person is sick, that’s what a doctor does.”  Exactly.  Doctors do not make moral judgments about how their patients came to need their help.  Accountants do not make moral judgments trying to extricate people from self-created tax problems.  Priests don’t judge those with moral issues.  If they did, there wouldn’t be much work to do—for the doctor, the accountant, or the priest.

I don’t make moral judgments either.  Many of my clients, maybe most of them, I wouldn’t mind being neighbors with.  They are good people who did something momentarily dumb.  Some I don’t want to know where I live or anything else about me.  But that does not make a difference in how I, or any good defense lawyer should, defend them.

We all do stupid things; some deliberately and some in a weak moment.  But just like needing a doctor, accountant, or priest, we sometimes need a lawyer, one who does not judge, to stand up and make an argument.

How Can I do It?

I am often asked how I can represent those accused of crimes after I spent so many years as a police officer.  The answer is twofold – I believe the Constitutional rights of people are being eroded and I believe some police officers abuse their authority.

Our Constitutional rights, in my opinion, are the most important aspect of being an American. Our forefathers fought a war to guarantee them and protect people from government.  Since then, and especially in the past few decades, Congress, legislatures, and the courts have marched ahead with laws and court decisions that have eroded those rights in a misguided attempt to punish all “bad people” with little regard for the privacy of the general public.  The most significant encroachment in our rights is the reduced protection we have from unreasonable searches.  The law seems to be constantly changing giving the government, through the police, more and more legal ability to search people and their possessions in an effort to discover illegal activity.  What this does, however, is allow more and more searches that find nothing because there was nothing to be found.  I simply believe that the attitude of “if you don’t have anything to hide, why should you mind me looking” is wrong.  I am committed to be part of the resistance to this destruction of our Constitutional rights.

I know that police officers are entrusted with a great deal of authority and more power than any other actor in government.  They have the power to take away your freedom by arresting you.  They have the power of life and death with no prior review of their actions.  I know that while most police officers are honest, hardworking people, some are on a crusade to try to punish everyone who commits even the smallest infraction. Those crusading  officers will do anything, legal or illegal, to do that. But more than that, even the ones who consider themselves honest will occasionally bend the rules (our Constitutional rights) because they think a small violation of someone’s rights is justified in the pursuit of discovering what they think is obvious criminal activity. This “bending of the rules” is just plain wrong.  Yes, some people commit crimes, even horrendous crimes.  But when rights and laws are violated in the pursuit of arresting those who may be committing crimes, the ultimate result is a police state where no one has any protection from government or its agents.  I believe that, if there is no “push back” against this abuse, our rights will slowly but surely disappear.

The Exclusionary Rule – Half a Loaf Leaves Us Starving

In 1949 the Supreme Court of the United States announced what has become known as the “Exclusionary Rule.”  The Rule says that when police perform a search or seizure later determined by a court to be illegal, any evidence discovered as a result of that search or seizure is suppressed, or not allowed to be used as evidence in a trial.  The Rule extends to evidence discovered as a result of the illegal evidence, such as when an address book is illegally seized the contents cannot be used to find additional evidence against the owner of the address book.  This is commonly known as the Fruit of the Poisonous Tree Doctrine.

Prior to the Exclusionary Rule, the victim of an illegal search or seizure could sue the offending officer in civil court.  This was not effective because those found with something illegal do not make very sympathetic plaintiffs, and trying to put a dollar figure on damages for violating Constitutional rights is very difficult.  The Supreme Court recognized this when they created a new remedy for illegal searches and seizures – the Exclusionary Rule.

The Rule, as far as it goes, is good.  It is supposed to keep police honest in their search tactics because if they cross the legal line, all their efforts are wasted.  But does it.

There are two glaring problems with the Rule.  First, it does not stop police from crossing the line, and second it does not protect the innocent.

Those who know me or who have visited my website know that I am a retired police officer with many years spent in major crimes investigation.  I have performed thousands of searches.  I have obtained hundreds of warrants.  I know where the grey areas are.  The grey area exists when an officer does not think he has enough information to get a warrant or does not think the suspected crime is worth the time and effort to get a warrant.  He then reverts to the police saying that “there is no such thing as an illegal search, just suppressible evidence.”  This statement may seem odd to some, but to an officer who knows that he faces no legal consequences (to himself personally) the only risk is having evidence suppressed.

Let me explain further.  Many years ago when I was taking a beginning class in homicide investigation, a very experienced homicide investigator taught that we should gather all the evidence we could, in the best way we could, then leave it to the lawyers to figure out what was admissible.  This seemed like good advice – if you didn’t have the evidence in the first place, it could never be ruled admissible.  But think of the consequences of this advice.  I was being told not to worry about the legality of the search; I was being told not to worry too much about where the legal line was.  Why?  Because there were no personal consequences to me for crossing it.

More than police having little regard for the legality of their actions, what about all the illegal searches that turn up no evidence, suppressible or not?  What about the police illegally searching your car and finding nothing?  Where are the restraints there?  What are the consequences to police?  There is no chance for a civil suit to succeed and very little chance that a complaint to the police agency will go farther than a first line supervisor blowing off any complaint.

If you or I did what the police do with impunity, we would be arrested and prosecuted.  If I went into your house looking for drugs, I would be charged with burglary.  If the police go into your house without a warrant looking for drugs, the drugs – if any are found – get suppressed.  If none are found, the police attitude is “oh well.”  Why do the police get a pass?

The Exclusionary Rule is not enough.  Yes, illegally obtained evidence should be suppressed.  However, there should be some consequences to the police officer for performing an illegal search, whether evidence is found or not.  Historically, search warrants were a time-consuming thing to get.  It would literally take hours to type an affidavit and warrant, drive to meet a judge, have the judge consider the circumstances, perhaps revise the affidavit, have the judge sign the warrant, then drive back to the location of the search.  Today, officers get warrants in minutes, either through fax or even by a recorded telephone conversation with a judge.

Why then shouldn’t officers be getting pre-approval for even routine searches as a way to protect our right to be free from “unreasonable searches and seizures.”  Why shouldn’t officers who refuse to have a neutral judge determine before a search whether probable cause exists be subject to the same laws and consequences as the rest of us?  Why should police be able to root through our things for no reason, not find anything, and just walk away?

Why not prosecute police officers for searching without probable cause, just like you or I would be prosecuted?  Why not put a statutory value on our Constitutionally protected rights – a civil punishment for police officers violating our rights?

We give immunity to judges for their actions.  We give immunity to prosecutors for their actions.  With nothing beyond the Exclusionary Rule to protect us, we are giving de facto immunity to police also.  Where is the accountability for government and its agents when our Constitutional rights are violated?

Some will read this and think me radical.  I think a government whose actors do not face the same consequences for their actions as those governed is abusive and on the way to being totalitarian.  It’s not King George, it is King Government with a million princes.  We fought a revolution against one, and we are just rolling over for the other.