The Harsh Reality of "Don't Talk to Cops"

Friend who provided Dayton shooter with 100-round magazine and body armor faces federal charges

A friend of Connor Betts accused of providing the Dayton, Ohio, shooter with the body armor and a 100-round double drum magazine used during his attack is facing federal firearms charges.

Hours after the August 4 attack, agents with the FBI and the Bureau of Alcohol, Firearms, Tobacco and Explosives visited the home of Ethan Kollie in nearby Kettering, according to a probable cause affidavit. Kollie told the agents he enjoyed firearms, owned two pistols and had bought body armor and a firearms accessory for Betts earlier this year, the affidavit says.

The 24-year-old allowed agents to search his home, where they smelled marijuana and saw a water pipe, commonly used to consume cannabis, and a Draco pistol, the affidavit says.

Agents interviewed Kollie again, this time at his place of employment, on Thursday. During that interview, Kollie told agents he had done hard drugs, marijuana and LSD with Betts several times a week between 2014 and 2015, the affidavit says.

He also told agents that he had smoked marijuana every day for the past decade, according to the affidavit.

When Kollie filled out the ATF paperwork to obtain the Draco pistol in May, the affidavit says, he checked the “no” box when asked whether he had been a regular user of marijuana or any other controlled substance.

Agents explained they were going to search Kollie, in accordance with a search warrant issued earlier that day, and Kollie produced a bag of marijuana and a .38 Special revolver, the affidavit says. He also told the agents that he grew psychedelic mushrooms at his home and explained the process to them, according to the affidavit.

I was full on physically cringing as I read this, but it's not at all unusual. I've mentioned ad nauseum that I'm a criminal defense attorney and I've had to deal with this shit all the time. Pretty much every case I get involves the person admitting to drinking, smoking, doing heroin, hitting the person, running away from cops, knowing that the phone they bought was stolen, etc. etc. There appears to be a deep-seated impulse to just cooperate in a desperate attempt to placate the armed agents of the state who hold a terrifying amount of discretion.

It's way too easy to sit there and shake your head at these supposed idiots for making blatantly unwise decisions. I'm doing it right now too! But here's the thing, this impulse is liable to capture even the most learned and knowledgeable individuals. I myself had an encounter with law enforcement when I was a law student that still haunts me to this day based on how I behaved. The details don't matter, but from the beginning I told them "I am not talking to you" over and over again. They kept questioning me and I grew exasperated and just said "I invoke my right to remain silent under the 5th amendment." which also did not work. Here's the thing though, nothing about what happened was technically a civil rights violation, because police officers have the right to restart questioning whenever they want and the only recourse is to be required to continually assert your right to be silent. The only ironclad rule is that questioning must cease when you invoke the desire to speak to an attorney. Try remembering the distinction between two 18th century legal concepts in a high-stress situation when you're sleep deprived. I ended up talking, briefly, but enough to probably have had an adverse impact on myself.

You'd think now that I'm an honest to god real attorney immersed in the intricate nuances of law enforcement encounters that I'm safe now, right? I'd like to think so too! But that's incredibly arrogant on my end. See for example what happened to Ken White (aka Popehat). He was served with an arguably overreaching federal subpoena and his reaction was telling.

Third, when I read the subpoena yesterday, I was suddenly gripped with exactly the sort of impulses that I urge clients to resist: the overpowering urge to do something and talk to someone to straighten it all out. I was tempted to email the AUSA and introduce myself, and to argue that it's ridiculous that he subpoenaed my identity, and ask what the hell he wants. That, of course, would be extremely stupid, even though I've done nothing wrong — perhaps especially because I've done nothing wrong. Fortunately, just as I plead with clients to resist this urge to reach out to the government, I resisted it myself. But I must admit it is powerful.

Don’t talk to police, but also remember that’s easier said than done.