This essay originally appeared in the June, 1990 issue of DOWNRANGE, the official publication of the Maryland State Rifle & Pistol Association.
(Also check out a file put on the Net by the ACLU entitled Your Rights in an Encounter with the Police and download their pocket-sized Bustcard)
As California and New Jersey have enacted bans on the sale and unlicensed possession of militia-style semi-automatic rifles, every Marylander who professes loyalty to the Constitution should consider what action he or she will take in the event that Congress, or our own General Assembly were to follow suit. The points addressed in this article are premised on three assumptions.
1. Either Congress, or our General Assembly has enacted legislation prohibiting or severely restricting the possession of weapons protected by the Second Amendment (e.g., military pattern semi-automatic rifles).
2. The reader has already decided to uphold the Constitution and not turn over his or her "prohibited" firearms under any circumstances, nor to register such weapons in order to facilitate their future confiscation. The reader has also failed to respond to government directives to dispose of or surrender such firearms.
3. The reader has secured all "prohibited" firearms away from his or her principal residence so as to prevent their unconstitutional seizure by the authorities.
What do you do when the police show up on your doorstep demanding the surrender of your militia weapons?
In responding, bear in mind that you have two important rights guaranteed by the Fourth and Fifth Amendments to the United States Constitution.
The Fourth Amendment protects you against unreasonable searches and seizures. If the police want to search your house without your consent, they need a warrant. Warrants may only be issued upon a showing of probable cause, supported by an affidavit. The facts contained in the affidavit must do more than support a mere suspicion. The test is whether the information in the affidavit would justify a person of prudence and caution in believing that an offense is being committed, e.g. that "prohibited" weapons can be found on your premises. The requirement of probable cause for the issuance of warrants is one of your most precious constitutional protections.
NEVER GIVE THE AUTHORITIES YOUR CONSENT TO SEARCH YOUR HOUSE, YOUR CAR, YOUR PLACE OF BUSINESS, OR ANY OTHER PREMISES UNDER YOUR CONTROL. Consent dispenses with the necessity of probable cause. While lacking probable cause, if the police conduct a search with your consent and seize evidence for use against you in court, your lawyer will not be able to suppress it on the basis that the search was warrantless.
The Fifth Amendment protects you against giving evidence against yourself, i.e., your right to remain silent. Just as you cannot be compelled to testify against yourself in a criminal trial, neither can you be compelled to answer a policeman's questions about that AR-15 you bought a couple of years ago and never surrendered. Don't be bashful about invoking this right. It's always better to remain silent and appear guilty than to open your mouth and prove it.
At the outset of any contact with the police, ask them if they have a warrant to search your premises, or a warrant for your arrest. Without one or the other, don't let them inside your front door. If they have neither, politely request that they leave and gently close the door. If you have an attorney, keep one of his cards in your wallet. Give it to the officer in charge and request that all inquiries be made through your counsel. Remember, the police wouldn't be at your doorstep if you were not the target of a criminal investigation. You have no obligation whatsoever to cooperate with people who intend to unlawfully confiscate your property and put you in jail. They can't arrest you for keeping your mouth shut and going about your business.
The police may still persist in trying to question you, or ask your consent to "take a look around". Again, if you have an attorney, give the officer in charge one of his or her cards and request that all inquiries be made through your counsel. Above all, remember that you have the right to break off this conversation. Do so immediately.
In some instances where the police lack a search warrant, they will tell you that it's a simple matter for them to obtain one and they "just want to save everybody a lot of time". This is hogwash. Politely tell them to go get one, and close the door. If they suggest that it will "go a lot easier on you" should you give them your consent to search, tell them to call your lawyer, and close the door.
In the event the police do in fact have a warrant either to arrest you or to search your premises, do not offer any resistance. You will have other battles to fight (presumably with the weapons you have hidden) and you want to be alive and kicking when the time comes. You are a member of the militia and we don't want to lose you or your weapon. You also don't want to do anything to endanger your family or deprive them of a home. Don't be foolish and engage the authorities in a firefight that you have no chance of winning.
On the other hand, you are not obliged to do anything to make the officers' job easier, such as giving them the combintation to your gun safe. You have the right to remain silent and should take advantage of it. That may cause the authorities to forcibly open your safe, with resultant damage. But let them work at their task. After all, it's their search warrant.
Politely request to see a copy of any warrants, and above all, remain silent. Anything you say can be used against you in court. Tell the officers that you do not want to say anything or answer any questions -- and that you want to talk to an attorney immediately. If you already have a lawyer, request permission to telephone him or her. If you have been taken into custody, the police are obliged to cease and desist from interrogation once you have asserted your right to remain silent and requested the assistance of legal counsel.
Your spouse and children will be natural targets of interrogation for the authorities. Do they know where your firearms are hidden? Although Maryland law generally prohibits your spouse from testifying against you in a criminal trial, that will be of no help of he or she breaks down under questioning and the authorities know where to retrieve your guns. Never forget that your objective is to safeguard your weapons and ammunition for the defense of the Constitution against all enemies, foreign and domestic.
If you or a family members are subpoenaed to testify before a grand jury or other judicial or governmental body, get an attorney immediately. Legal counsel can be very helpful, either in trying to quash the subpoena or helping to invoke one's rights against self-incrimination.
Never, under any circumstances, should you lie to the authorities. Simply exercise your right to remain silent. Don't try to snow them with phony bills of sale that can easily be checked out and used to impeach your credibility in court should you decide to testify. Above all, don't file a false police report that your guns were lost or stolen. Making a false report to a police officer that results in an investigation being undertaken is a criminal offense in Maryland. Remember, you are not a criminal. Your ultimate goal is to defend the Constitution.
Likewise, don't fall for any of the authorities' lies. Police love to play "Mutt & Jeff" (also known as "Good Cop - Bad Cop"). One officer comes across as a real hardcase, telling you about all the jail time you're looking at. After a few minutes of this, his partner takes you aside, offers you a cigarette, and in a friendly tone tells you that he "only wants to help you". He only wants to help you confess. Tell Mr. Nice Guy you want to talk with a lawyer. Another police tactic is to tell you that a friend of yours has confessed and given them a statement implicating you for all kinds of things. They're just trying to rattle your cage and make you blurt something out. Keep your mouth shut and let your attorney handle the police. If they really have such a statement, your counsel will be able to discover it.
If the authorities have a warrant to search your home, they might imply (sometimes none too subtlely) that if you do not come across with that they're looking for they will tear the place apart. Don't give in. Just keep your mouth shut. If you hand over your "prohibited" weapons, you've just given them all the evidence they need to put you in prison. Even if you fall for this scare tactic, the police may still trash your house. Although this is the rare exception, not the rule, such conduct is not unheard of.
In the event you are on the receiving end of a search warrant, do not be pressured into signing any inventories of property seized without first consulting with an attorney. There might be something on that list that is prohibited according to some obscure regulation that you've never heard of. Also be sure that you or some family member receive an itemized list of any property seized. Under Maryland law the police are obliged to sign one and leave it at the premises from which the property is taken. If it is subsequently determined that the authorities took anything that was not within the scope of their warrant, your attorney should motion the court for its prompt return.
Hopefully, you will never have to avail yourself of the advice set forth above. The best thing you can do to keep the Free State really free is to make a healthy contribution to the cause, show up to testify in Annapolis next Winter, and keep up the pressure on your Delegate and Senator.
Remember, the battle to defend our liberties has already begun - and you are one of the Constitution's foot soldiers.