Generally, police interactions can be divided into three categories: (1) the police approach a person in a public place; (2) the police approach a person in private place like a home; or (3) the police approach a person while the person is in a car. These encounters can be very tricky. After all, police officers are trained observers. They notice things others do not. They are looking to gather evidence and ways to enforce the law and apprehend lawbreakers. Now, you might not consider yourself a “lawbreaker,” but you may be surprised how often activities we do every day and think nothing of them, are technically violations of the law. Citizens have important legal rights in each situation. These “best practices” and guidelines help protect your rights in each of these situations.
GENERAL GUIDELINES FOR ALL ENCOUNTERS
First, be mindful of how your behavior will be perceived by law enforcement. Your behavior toward a police officer can have a significant effect on the officer’s conduct. Using common sense and respect may help avoid many confrontations with the police. In addition, follow these basic guidelines:
- CHECK YOUR BEHAVIOR AND APPEARANCE. You should consider how your behavior could be perceived by others. Stay calm, respectful and polite at all times. If the officer perceives you as acting unreasonably or as a threat to the officer’s safety or safety of others, the officer will respond in an unreasonable manner to maintain authority and control.
- BE MINDFUL OF YOUR PHYSICAL PRESENCE. Police are trained to maintain control. You should keep your hands visible at all times unless you tell the officer what you are doing first (e.g. “Officer, I’m going to reach in my back pocket for my wallet to get my driver’s license out for you—okay?”). Never touch the officer! Touching an officer will likely result in arrest and may result in a physical confrontation that will result in an escalating use of force.
- DETERMINE WHETHER YOU ARE FREE TO GO. Always ask whether you are free to go. This will help you figure out whether you are under arrest.
- PAY ATTENTION TO YOUR surroundings and circumstances. In all encounters, note your surroundings and circumstances. Get the officer’s name and badge number. Look for other witnesses in the area. Your recollection of the facts and the cop’s statements will help your lawyer establish your defense.
- INVOKE YOUR RIGHT TO SILENCE AND YOUR RIGHT TO AN ATTORNEY. Tell the police, “I want to be silent and I want to speak with an attorney.” Remember, anything you say can and will be used against you. After affirmatively invoking your rights to silence and to an attorney, stop talking! Do not chit chat or fill an uncomfortable silence with conversation. If you are asked any additional questions, repeat “I want to be silent and I want to speak with an attorney,” over and over if need be. Nothing else.
ENCOUNTERS IN PUBLIC PLACES
The police can approach you in a public place at any time for nearly any reason. Depending on how the police approach, you may be able to avoid interacting with the police. In other instances, you will not be free to go. Remember, the police are looking for criminal activity, even during seemingly friendly conversations.
- CONSENSUAL ENCOUNTERS. Consensual encounters are those where the police do not need any suspicion in order to talk with you. These can be as innocuous as a simple “hello” on the street, a nod while the officer drives by, or a simple conversation. Consensual encounters usually begin with the officer asking, “Would you mind talking with me for a minute?” You do not have to speak with the police if you do not want to. You can leave at any time. You do not need to be rude. You can say something like “I’m terribly sorry officer; I have somewhere I need to be. I can’t talk with you now.” The officer will understand. Keep in mind, sometimes an officer will engage in a consensual encounter while suspecting you of a crime. The officer just doesn’t have enough proof of it yet. If you say something that incriminates yourself, that can be used against you. The officer does not need to read you your Miranda rights before a consensual encounter, so there will not be a way to have a statement or admission thrown out later if you consent to the conversation.
- COMMUNITY CARETAKER ENCOUNTERS. Community caretaker encounters occur when the officer has a reasonable belief that you need assistance. The police can approach you if, for instance, you are sleeping in a car. The encounter usually begins with, “Hey, are you alright?” The justification underlying a community caretaker stop is that you might be having a medical problem such as a stroke or heart attack. That said, lots of these encounters rapidly become a reasonable suspicion stop or an arrest if the officer notices anything that gives him more reason to suspect you of a crime. For instance, drunk people often pass out or fall asleep in their cars. When the police approach someone sleeping in their car, they will characterize it as a “community caretaker” stop, even though they suspect the person has been drinking. I have read literally hundreds of police reports that start with, “I observed the driver slumped over the steering wheel. It appeared as though the driver needed assistance. I pounded on the window to get the driver’s attention. When the person awoke, they appeared to be intoxicated. I observed . . . .” To end the encounter, say, “I’m okay. I don’t need any help—may I go?” If the cop says no, you know it really isn’t a community caretaker stop anymore. They believe you may have committed a crime. You should act accordingly.
- REASONABLE SUSPICION/TEMPORARY STOP. A reasonable suspicion stop occurs when the officer has some belief that criminal activity be happening or has just happened. The officers usually initiate a “reasonable suspicion” encounter by saying, “Come here, I have a few questions.” During this kind of encounter, you must answer some questions like your name, address, and an explanation of your actions. Answer yes or no as much as possible and be sure to keep the explanation of your actions to a minimum. To protect your rights, you can tell the officer that you want to be silent and you want to speak with a lawyer. To try to end the encounter, ask to leave. “May I go now please?” If you are free to go—do it. If you are not free to go, invoke your rights; “I want to remain silent and I want my lawyer.”
- An arrest can only occur if the police have probable cause to believe you have committed a crime. Probable cause for the purpose of an arrest is reasonable cause to believe the person arrested has committed a crime. Arrests can be conducted with or without a warrant in certain circumstances. Most arrests are conducted without a warrant. When being arrested, keep calm. Arguing with the officer, acting belligerently, touching the officer, or “resisting arrest” can result additional charges. Do your best to be respectful. Do not touch the officer and keep your hands in plain view unless you tell the officer what you are going to do.
ENCOUNTERS IN PRIVATE PLACES LIKE HOMES
Generally, your rights are strongest when you are in a private place like your home. After all, the old saying goes “a man’s home is his castle.” In order to maintain your rights, you have to use common sense when it comes to police encounters. Here are simple suggestions to protect your rights:
- SHUT UP! When the door rings and you think it’s the cops, don’t yell, “OHH! Hide the bong! I think the cops are here!” The cops are listening at the door. If the officers hear anything suspicious (e.g., running footsteps or a flushing toilet [trying to flush evidence]), they may break down or through the door.
- ASK WHO IT IS THROUGH THE DOOR. Officers are required to identify themselves and announce their purpose for being there.
- DO WHAT YOU CAN TO AVOID FURTHER SUSPICION, BUT DO NOT LET THE OFFICERS INSIDE. Often, the best course of action is to step outside to talk with the officers and close the door behind you. Ask the officers why they are there. If the officers do not have a warrant, do not let them inside. “No offense officer, but I don’t give you permission to enter my house.” If the officer has a warrant, you must let the officer inside.
- DO NOT GO BACK INSIDE IF YOU ARE ARRESTED. To make sure you are not destroying evidence or getting a weapon, the officer will follow you inside. The officer will surely look around while waiting for you—if the officer sees anything suspicious, he will take note of it and will come back with a search warrant, freeze the scene until a warrant can be obtained, or seize the item if it is in plain view.
POLICE ENCOUNTERS IN A CAR
Your rights a car are reduced because you have a lesser expectation of privacy. The Supreme Court has recognized the inherently mobile nature of cars and their contents. Because of this, special rules have been developed regarding automobiles. Technically, a police encounter can occur before the officer initiates a traffic stop. This section addresses traffic stops in general, both before and after a traffic stop.
BEFORE THE STOP: THE COPS ARE FOLLOWING ME! Police patrol the roadways looking for criminal activity. At some point, you will surely see a cop in your rear-view mirror. Instinctively, you will check your speed, use your turn signals when changing lanes, and come to complete stops at stop signs. Officers know this and will occasionally follow cars to watch for a reason to stop you. To minimize the likelihood you get put into this position:
- DO NOT GIVE THE OFFICER A REASON TO STOP YOU. Straighten up—observe all traffic laws.
- AVOID BACK ROADS OR SIDE STREETS. If the police are following you on a back road or side street, he has less to do besides analyze your driving behavior.
- STOP IN A PUBLIC PLACE. Pull into a gas station, a video rental store—anywhere that is well-lit, public, and has other people around. The officer must then decide whether to stop you or keep moving along looking for the next car.
- GET THE OFFICER’S INFORMATION. If you think the officer was following you for no good reason, get the car or license number. Also note the time. If you see the same officer following you on more than one occasion or for an extended period, it may be time to talk with the officer’s supervisor—especially if you think the officer is targeting you for some inappropriate reason.
THE TRAFFIC STOP. In most cases, traffic stops will be quick and relatively painless. In order to minimize the chance an officer escalates the encounter, there are some basic considerations you should keep in mind. Those include:
- STAY IN YOUR CAR. Unless the officer tells you to get out of the car, stay there.
- BE PREPARED. Have your license, registration, and insurance cards readily available. Partially roll down the window enough to speak with the officer and hand documents through the window and turn on your interior dome lights if it is dark.
- KEEP YOUR HANDS IN PLAIN VIEW AT ALL TIMES. Tell any passengers to keep their hands on the dash or the seat in front of them and keep their mouths shut. If the cop cannot see your hands, the officer might think you are (a) hiding evidence or (b) concealing a weapon.
- OBSERVE THE “COMMON SENSE RULES” DISCUSSED ABOVE. Even though you have not been arrested, follow the general rules. Be respectful and watch your body language.
- NEVER CONSENT TO A SEARCH. The officer may ask the following to obtain consent to search your car:
- The Officer: We’ve been having a godawful time with motorists transporting drugs and firearms. You wouldn’t happen to have any dope or weapons in your car, would you?
- You: Of course not!
- The Officer: Then you wouldn’t mind if I take a look, would you?
- You: Ummmm . . .
The correct answer to the “ummm. . .” above is “Yes officer, I do mind. I respect my privacy.” If pressed to consent, be sure to reiterate non-consent as clearly as possible—“I do not consent to a search.” The officer may believe that you refused the officer’s request because you have something to hide. The officer might even search your vehicle without your consent. At least then, the officer must justify a search on suspicion grounds, not based on your consent to the search. If you consent, the officer does not need to justify anything other than to say he asked and you agreed. Don’t make his job too easy.
- DO NOT SIGN ANYTHING EXCEPT A TICKET. The officer should not ask you to sign anything except an acknowledgement of a citation. Refuse to sign anything else.
- DO NOT SAY ANYTHING UNLESS YOU HAVE TO. The officer is gathering information that will be used against you. Answer yes or no as much as possible. Your lawyer will thank you.
WHAT HAPPENS IF YOU AREN’T SURE THE COP BEHIND YOU IS REALLY A COP? There have been recent cases in the news where people were impersonating police officers to commit crimes on unsuspecting victims. Women, in particular, may be targeted by police impersonators in order to get them to stop. If you have any reason to doubt that the person pulling you over is not a real cop, especially if it is late at night or in a remote area, you should consider doing the following:
- With blinkers flashing, indicate that the officer should follow you. Drive carefully to the nearest place where there are people. Don’t speed up, don’t give the impression you’re trying to get away. . . .
- If you believe the person behind you is a fake cop, call 911 on a cell phone as you drive. Tell the dispatcher of your suspicion and ask if a unit is presently attempting to stop a car with your license number or which fits your car’s description.
- Never hesitate to ask for photo identification of the officer.
In 99.999% of the cases here, this is not an issue. It does not hurt, however, to be aware that it is going on in other jurisdictions.
AVOIDING SEARCH AND SEIZURE ISSUES: OH MAN, I DIDN’T WANT THE COPS TO FIND THAT! Like interactions with the police, avoiding search and seizure issues requires the exercise of common sense. Many of the search and seizure issues overlap with those discussed earlier. Generally, the cops can search you, your home, or your belongings if they have good reason to. These searches can be conducted with or without a warrant. The following basic guidelines will help you survive a search and may create legal issues for your defense. Keep in mind, I am not endorsing you having contraband in your possession or encouraging you do anything illegal. If you do, though, following these tips will give you the best chance at avoiding the cops searching and seizing evidence against you:
- CHECK YOUR BEHAVIOR AND APPEARANCE. This goes for your stuff too! Police look for suspicious behavior like random people coming and going, heavy blankets completely blocking out the light from the windows, strange odors or noises, strange hours, etc.
- KEEP CONTRABAND OUT OF SIGHT. Police do not need a warrant to search for things they can see in plain view. Keep suspicious items out of plain sight from the doors and windows.
- DO NOT THROW AWAY INCRIMINATING MATERIAL IN YOUR GARBAGE CAN OR IN A BAG CONTAINING ANYTHING IDENTIFYING TO YOU. Police do not need a warrant to search your garbage when it is put onto the street for collection. They often will conduct garbage searches to locate enough evidence to obtain a search warrant (e.g., marijuana sticks and stems, baggie with drug residue, etc).
- NEVER CONSENT TO A SEARCH. Again, don’t make the cops’ jobs too easy. They don’t need a warrant if you consent.
- NEVER OPEN THE DOOR UNLESS THEY HAVE A WARRANT. Go outside to talk with the officers. Shut the door behind you. If the officer shows you a warrant, let him inside.
- GET A COPY OF THE WARRANT. Give it to your attorney as soon as possible.
- GET A COPY OF THE INVENTORY. Before you clean up after the search, take pictures of the mess, any damage, and look to see if anything is missing which was not included on the inventory.
- YOU DO NOT NEED TO BE PRESENT IN ORDER FOR THE POLICE TO SEARCH. The officer may try to search when you are either gone are unprepared for a search.
- DO NOT GO BACK INSIDE IF YOU ARE ARRESTED. To make sure you are not destroying evidence or getting a weapon, the officer will follow you wherever you go while inside.
- BE AWARE OF YOUR LOCATION. The rules for vehicle searches, searches incident to arrest, and Terry stop and frisks are different than the standard in-home search. When you leave your home, your rights to privacy are lessened.
- REMEMBER THE DETAILS. How many officers searched, what did they say they were looking for, what did the warrant say, etc. Immediately after the search (or as soon as possible afterwards), write this information down and give it to your attorney.
These recommendations are not exhaustive. There are some instances where an officer is going to search regardless of what you do. Use common sense and you may avoid most of these issues before they arise, or at least give you and your lawyer a fighting chance to suppress the evidence.
If you have a bad encounter with a law enforcement officer, give Nick Thornton a call or shoot him an email. He can help. 701-478-7620 or email@example.com.