Most people feel intimidated during an encounter with the police. An officer might stop you as you walk down the street in order to ask you questions. That experience can be unnerving. It is even more unsettling when he frisks you to make sure you are not carrying a concealed weapon. He might stop your vehicle and ask for permission to search it. He might make you exit your vehicle to perform field sobriety tests. The police might want to search your house. They might arrest you. They might interrogate you before or after an arrest. All of those actions are designed to produce evidence that can be used to convict you of a crime. They are usually effective because people do not understand how and when to exercise rights that protect them during encounters with the police.
You have fundamental rights whenever the police want to stop, arrest, search, or question you. Those rights are guaranteed by the United States Constitution. They apply to every person in the United States, regardless of citizenship.
You cannot benefit from your rights if you do not understand them. The police are only required to explain certain rights to you, and then only in limited situations. The police count on people being unaware of their rights. They take advantage of that lack of knowledge. It is up to you to learn about your rights so that you can exercise them when you encounter the police. This guide will tell you what you need to know.
You should never be afraid to exercise your rights. Some people worry that if they “just say no” to a police officer who wants to question them or search their car, their exercise of that right will make them look guilty. If he wants to conduct an interrogation or a search, the officer already suspects you are guilty. You cannot control, and should not worry about, what the authorities think. You should exercise your rights whether you are innocent or guilty. Exercising your rights is not an admission of guilt. It is a recognition that your rights are useless if you do not use them.
Stopping, questioning, and searching a pedestrian
You are standing on a corner or strolling down a sidewalk. A police officer approaches you, asks you to identify yourself, and starts to ask you questions. What should you do to best exercise your rights?
The Fourth Amendment protects individuals from unreasonable seizures. The police seize you when they use their authority to stop you from going about your business or otherwise restrain your freedom of movement. An arrest is a seizure but so is a momentary detention on a sidewalk.
The law allows the police to stop and detain individuals for a brief time in order to confirm or dispel a reasonable suspicion that the person is committing, has committed, or is about to commit a crime. The police usually do that by questioning the individual they have stopped but they can conduct other reasonable investigations (such as checking a nearby building to see if it has been burglarized) while they detain a suspect.
If the police begin to question you while you are in a public place, you first need to know whether you are being detained. The police must have a reasonable suspicion of wrongdoing to detain you, but they need no suspicion at all to ask questions or engage you in conversation. During a “consensual” encounter with the police, you are free to leave at any time. If a cop who starts questioning you did not order you to stop, you should ask “Am I free to go?” If the cop says “yes,” you can walk away. You can also stay where you are and ignore the officer, but he can continue to pester you with questions. You have no obligation to answer the questions, but you might find it more comfortable to leave.
If the officer initiates the encounter by saying “stop” or “wait right there” or by issuing some other command that restrains your freedom of movement, you have been detained. You might want to make sure of that by asking “Am I free to go?” after the cop approaches you. Do not be afraid to repeat the question later if it seems that he has lost interest in you. On the other hand, you should not repeat the question so often that you annoy or antagonize him. If you do that, you are just inviting him to ramp up his or her efforts to intimidate you and to look for a reason to arrest you.
You should not refuse a cop’s order to stop even if you feel the order is unlawful. If you do not obey the command, you will probably be arrested for obstructing the officer. Do not argue with them. Just allow the detention to continue until he tells you that you are free to leave. If a stop eventually leads to your arrest, your lawyer can challenge the lawfulness of the stop in court. You gain nothing but trouble by challenging or debating the officer.
Questioning during a pedestrian stop
If the officer has detained you, he will probably ask you questions. You have no obligation to answer them. He is not required to tell you that you have the right to remain silent, but that right exists whether or not he explains it to you. It is a right you should always use. If the officer asks “What are you doing here?” or any other question, your best response is “I will not answer any questions without having a lawyer present.” You can continue to repeat that phrase in response to additional questions or you can simply remain mute until the officer goes away or takes some other action.
The officer cannot arrest you simply because you exercised your right to remain silent. If he arrests you after you refuse to answer his questions, the officer was planning to do that anyway. If he tells you that you will be arrested unless you answer his questions, the officer is planning to arrest you anyway. Your exercise of your right to remain silent cannot justify an arrest but it will thwart the officer’s attempt to obtain information to use against you in a criminal prosecution.
Some states have enacted laws that require you to identify yourself to a police officer when you are asked to do so. The Supreme Court has upheld those laws. California does not currently have such a law, but you should probably give the officer your name upon request unless you have a good reason to keep your identity a secret. It is a bad idea to lie to the police about your identity or anything else. Telling a lie to the police is a crime that justifies an arrest. Saying nothing is not a crime.
You should remain silent even if you did nothing wrong. If you speak to the officer, you risk that the officer will misunderstand your answers or will recall them incorrectly while writing a report hours later. His mistakes can lead to inaccurate statements that make you look guilty. You avoid those problems by exercising your right to remain silent.
Frisks and searches during a pedestrian stop
If you are subjected to a brief detention but are not arrested, the police cannot search inside your pockets or beneath your outer clothing. If they ask for permission to search you, say no. If they ask what you have in your pockets or inside a purse or other container, tell them that you will not answer any questions because your lawyer is not present.
If the police have a reasonable concern that you might be armed and that you might pose a danger to them, they can run their hands over the outside of your clothing to check you for weapons. This is known as a “frisk” or “patdown.” You cannot stop them from frisking you and you should not try. If you resist a frisk, you will probably be arrested for obstructing an officer.
If they feel an object inside your clothing as they frisk you, they might ask you what it is. Again, your best response is “I will not answer any questions without having a lawyer present.” The police are entitled to remove an object from your pocket that reasonably feels like a weapon. Although they cannot search you for contraband (such as drugs) without your consent, they can remove an object from your pocket that they feel during a frisk if the object feels like contraband. Whether something “feels like” contraband is often unclear, so contraband found during a frisk is often suppressed or “thrown out” by a court in response to a defense lawyer’s motion. Evidence that is obtained during an illegal search cannot be used against you, but evidence obtained because you consented to a search can be used against you. Never consent to a search.
The same rules that limit an officer’s authority to stop someone on the street generally limit their authority to stop the driver of a vehicle. An officer who sees a traffic violation being committed has probable cause that justifies a stop of a vehicle. In the absence of a traffic violation, they must have a reasonable suspicion that the driver has committed a crime or traffic offense.
A “reasonable suspicion” is more than a hunch. “Reasonable suspicion” is an objective standard, although courts apply the test from the perspective of an experienced police officer. What constitutes a reasonable suspicion that justifies a vehicle stop is not always clear. Erratic driving or weaving within a lane probably creates a reasonable suspicion that the driver is under the influence of alcohol, but a slow drift from one edge of the lane to the other might not. An officer’s mistaken view of the law cannot support a reasonable suspicion. That means that an officer who stops you for failing to signal a turn, mistakenly believing (as they often do) that a signal was required, has violated your right to be free from an unreasonable seizure.
If an officer signals you to stop, you must stop even if you think the he has no basis for stopping your vehicle. Let your lawyer challenge the validity of the stop in court if it results in your arrest. Failing to stop will probably lead to an arrest for eluding or a similar crime.
Questioning after a vehicle stop
An officer can stop your vehicle briefly in order to confirm or dispel the suspicion that justified the stop. During that time, he can ask to see your driver’s license. Since every state requires you to have that license on your person when you are driving, you must produce it for him. You are not required to answer any of the officer’s questions, such as “Where are you going?” or “Where have you been?” or “How much have you had to drink?” Politely declining to answer those questions is your best response.
Orders to exit the vehicle
If the officer’s observations lead to a reasonable suspicion that you have violated laws against intoxicated driving, he can direct you to exit the car to perform field sobriety tests. The officer usually cannot ask you to leave the vehicle if he just wants to question you about other matters. If he has a reasonable suspicion that you are armed and dangerous, however, he can order you out of the vehicle to conduct a frisk. Under some circumstances, passengers can also be ordered to exit a vehicle to assure an officer’s safety. The officer can also order you and passengers out of the car if he has probable cause to search the car for evidence of a crime.
Whether you are the driver or a passenger, if an officer asks you to exit the vehicle, you should comply. The information provided above about “frisks and searches after a pedestrian stop” applies equally to frisks and searches of your person after a vehicle stop.
As a general rule, California authorities can search your vehicle without a search warrant if they have probable cause to believe it contains evidence of a crime. If they do not have probable cause, they might ask you to consent to a search. Even if they believe they have probable cause, they will probably ask you for consent to a search because probable cause can be challenged in court while a search to which you consented cannot be successfully challenged.
You are never required to, and you should not, consent to a search of your vehicle. If you are asked to open the trunk, your response should be “I do not consent to a search of my trunk or any other part of my vehicle.” If the officer tells you to give them the keys, comply with their order but politely tell them that you are not consenting to a search of your vehicle by giving them the keys.
If you have been ordered out of the vehicle and remain near it, the authorities may be entitled to search areas of the car that are within your reach if they have a reasonable suspicion that weapons might be present. They can do that even if they do not have probable cause to search the entire car. Recent court decisions have cast doubt on the circumstances under which that kind of search can be conducted. Do not resist those searches but, if asked, do not consent to them.
If the authorities do not have probable cause to search your vehicle but they see illegal drugs or other evidence of a crime in plain view (on the passenger seat, for example), they are entitled to seize that evidence. If they ask you whether the thing they seized belongs to you, your best response is “I will not answer any questions without having a lawyer present.”
Exercising your rights at home is less confusing for most people. The search of your home is almost always unlawful unless it is authorized by a search warrant issued by a court. The same rule applies to private areas within your business premises, such as your personal office, and to private areas that you are entitled to use, such as a rented storage locker or your hotel room.
The authorities often try to get around the burden of obtaining a warrant by coming to your door and asking if they can enter. Your response should be, “Do you have a warrant?” If (as they often do) they answer your question by asking “Do we need one?” say “Yes.” If they cannot produce a warrant, do not let them in.
If you share an apartment with a roommate, the roommate cannot consent to a search of a place (like your bedroom) that you keep private. The roommate can consent to a search of common areas, like a living room or kitchen that you both use. It is always a good idea to come to an agreement with a roommate that neither of you will allow the authorities into your apartment unless they have a warrant.
If they have a search warrant, you must allow them to search the premises but you are not required to answer their questions. If a detective asks you a question during a search, your best response is “I will not answer any questions without having a lawyer present.”
Arrests and interrogations
The authorities need to have probable cause to believe you committed (or are committing) a crime before they can arrest you. Probable cause exists if it is likely that you committed a crime.
The authorities may or may not have an arrest warrant when you are arrested. An arrest warrant allows them to enter your home in order to arrest you. It does not allow them to search the home, although they can make a “protective sweep” of the premises to make sure that no armed and dangerous people are present who might jeopardized their safety.
If they arrest you in a public place, they do not need a warrant if they witness actions that create probable cause to believe you are committing a crime. The law in some states requires the police to get a warrant before making an arrest based on facts that they did not observe or if significant time has passed since making their observations. Even in those states, they can usually make an arrest without a warrant to prevent a suspected felon from fleeing or from destroying evidence.
If the authorities want to arrest you without a warrant, arguing with them about the existence of probable cause or the need for a warrant will annoy them and creates the risk that you will say something in the heat of the moment that will be used against you in court. If they arrest you, go with them peacefully but say nothing.
Search following an arrest
The authorities can search your person and the immediate area that you are occupying at the time of your arrest. They can look for drugs, weapons, or evidence of a crime that you are carrying on your person. How far they can extend a search is a subject of some controversy. Any place that is within your reach and subject to your immediate control can probably be searched to make sure you cannot reach a weapon or destroy hidden evidence.
The authorities generally cannot search other private property at the time of your arrest without your consent unless they have search warrant. They can, however, seize evidence of a crime that is plainly visible to them without conducting a search. If they ask you about anything they seize, do not tell them a lie. Just say “I will not answer any questions without having a lawyer present.”
Questioning following an arrest
If the authorities want to question you after taking you into custody, they must first give you a Miranda warning. That means they must tell you that you have the right to remain silent, that anything you say can be used against you, that you have the right to a lawyer and to have that lawyer present during questioning, and that a lawyer will be appointed if you cannot afford one. They will then ask you whether you understand those rights. Say “yes” if you understand them. Next they will ask you if you want to waive (or give up) those rights. Say “no” and then say nothing else.
The Constitution requires any statement you make to the authorities to be voluntary. They cannot beat or torture you. The degree to which they can use coercive tactics to induce a confession is less clear. Since you are in a coercive environment when you are in police custody, the Miranda warning is meant to assure the voluntariness of any post-arrest statement you make. Declining to participate in an interrogation assures the protection of your right to be free from a coercive interrogation.
The authorities are supposed to stop questioning you as soon as you decline to waive your rights. Sometimes they persist. They might tell you that things will go easier on you if you if you cooperate. In fact, they are trying to make things easier for the prosecutor. The police are not on your side. The only response you should give is “I will not talk to you without having a lawyer present.” If they say “We don’t have a lawyer available right now,” your response should be, “I’ll wait.”
Right to counsel
If you have been charged with a crime, you have the right to be represented by a lawyer. If you cannot afford a lawyer, you have the right to have a lawyer appointed for you. The procedures for appointing a lawyer, and the financial standards for determining whether you can afford a lawyer, vary from state to state and sometimes from county to county. If you have been arrested but not yet charged, you generally do not have the constitutional right to an appointed lawyer, but many jurisdictions will make a lawyer available to you in jail to give you basic advice about dealing with the authorities and the criminal justice system.
You have the right to be represented by an attorney any time the police want to question you, whether or not you have been charged with a crime. If you have not been arrested, or if you have been arrested and can afford to hire a lawyer, you will need to seek legal advice at your own expense. In any event, you should refuse to answer questions posed by the authorities until you have had the chance to talk to a lawyer. In most cases, lawyers advise their clients to continue exercising their right to remain silent. If you and your lawyer decide that there is some benefit to submitting to an interrogation, you should only do so if your lawyer is present during the questioning.
Don’t Forget to Keep Your Cool
This guide has stressed the importance of not irritating the authorities when you exercise your rights. The police might not be happy that you know your rights and are invoking them, but they should respect your decision. By the same token, you should respect the officer’s exercise of his or her authority, even if he is making a mistake. If you are sarcastic, rude or belligerent, if you threaten lawsuits, if you raise your voice, or if you use foul language, he might respond with aggression that could have been avoided.
Invoke your rights in a calm manner. Use clear, concise, and respectful language. The less you say, the better. A poor attitude will be reflected in the officer’s report and will only hurt you if your case goes to court.
Southern California Criminal Defense
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