If you don’t know your rights, you cannot exercise them to protect
yourself. In part two of our blog on search and seizure, I will focus
on street encounters with law enforcement. As a criminal defense attorney
people always ask me about their rights if an officer comes up to them
on the street and asks them questions without a reason to do so. They
wonder if they have to answer, if they can walk away without answering,
or if they can take off running.
To properly analyze your rights during a street encounter with law enforcement
it is important to point out that for criminal law purposes, there are
three types of police encounters:
- a consensual encounter;
- an investigatory detention; and,
- a custodial arrest.
A Consensual Encounter is just like it sounds. It is when an officer approaches
you on the street and asks to speak to you without probable cause, or
even a reasonable suspicion you have committed a crime. The officer may
have a hunch that you are up to something he can’t explain or he
may just want to ask you where you are coming from or where you are going.
Regardless, nothing prevents an officer from approaching you and asking
you questions. If the officer does not have a legal justification to detain
you and you agree to speak with him, the interaction will be deemed a
consensual encounter. Meaning, you are willing to participate in the conversation
without legally having to do so.
A former client correctly exercised his right to walk away from an officer
who was trying to talk to him. The officer became upset, and forcefully
restrained my client from walking away. This conduct by the officer was
illegal. My motion to suppress the marijuana pipe found in my client’s
pocket was granted and the prosecutor had to dismiss the case.
Because the officer has no legal basis to stop you, the encounter will
go on only as long as you want it to. Keep in mind that in this situation
the officer does not need to advise you of your right to remain silent,
as you are not in police custody. If you do not want to speak with the
officer you are free to not respond to any questions and walk away. The
risk you run if you do voluntarily speak to the officer is that if you
say something or the officer observes something that gives him a reasonable
suspicion of your involvement in a crime, the officer will be justified
in detaining you to investigate that suspicion. At that point the consensual
encounter will become an investigatory detention and you will no longer
be free to leave.
If an officer has a reasonable suspicion you have committed, are committing
or are about to commit a crime, he may temporarily detain you long enough
to investigate that suspicion. If during the detention the officer establishes
probable cause to believe you have committed a crime you may be arrested.
If he does not you must be released. There is no
per se definition of what a “reasonable suspicion” is, however in
the U.S. Supreme Court case of
Terry v. Ohio, [392 US 1 (1968)], ruled that reasonable suspicion requires “specific
and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant” a detention.
If in doubt, walk away. If the officer stops you from walking away and
you are ultimately charged with a crime we can file a motion to suppress
like we did in the example above. As I have discussed in other blogs,
my goal is to arm you with information to protect yourself and to help
me help you if the need arises.
Do I have to consent to a pat down?
Another question people often ask is if the officer can pat them down or
go into their pockets. If during an investigatory detention the officer
reasonably believes you are armed and a danger to the officer or others,
that officer may pat down the exterior of your clothing (or “frisk”
you) to check for weapons. Keep in mind that the purpose of this pat down
is to check for weapons, not to search you for drugs or other contraband.
That means that if the officer discovers a cigarette pack in your jacket
pocket during the frisk, he generally may not seize or open the pack because
it is not a place where a weapon could be stored. However if during that
pat down the officer discovers contraband and can determine what it is
by its “plain feel”, he may seize that contraband. This is
a tricky area as courts have ruled that an officer may not squeeze or
manipulate an item discovered during a pat down to determine what it is,
unless the officer is unable to determine the item is not a weapon. Again,
the purpose of the pat down is to check for weapons and to ensure the
officer and public’s safety, not to circumvent a person’s
Fourth Amendment right against unlawful search and seizures. As you probably
expect, if the officer discovers a weapon during a frisk, he may reach
into your clothing to retrieve that weapon.
Generally an officer does not have to advise a person of their right to
remain silent before questioning them during an investigatory detention.
However there have been instances where a person has been detained in
a sufficiently restrictive manner to transform the investigatory detention
into an arrest requiring Miranda warnings before questioning. Regardless
of the situation, remember that just because an officer has not advised
you of your right to remain silent it does not mean you have to answer
his questions. In this circumstance you must remember that the officer
is detaining you because he believes you are committing or have committed
a crime, and you must be very careful about what you say if you choose
to speak with the officer. Saying the wrong thing may give the officer
probable cause to arrest you and result in you being taken to jail.
If an officer has probable cause to believe you have committed a crime,
that officer may generally place you under arrest and take you into custody.
The U.S. Supreme Court has defined probable cause as “facts and
circumstances within the officer’s knowledge that are sufficient
to warrant a reasonable person in believing, in the circumstances shown,
that the suspect had committed, is committing or is about to commit an
If you are placed under arrest you will be taken into custody. In some
cases, such as for a minor misdemeanor offense or when the suspect has
not previously failed to appear for court, the officer may issue a written
notice to appear and release the suspect at the scene of the arrest. This
is a relatively good ending to a bad situation, however it is not the
norm and the vast majority of arrests result in a trip to jail.
Once you are arrested law enforcement may search you incident to arrest
without any additional probable cause. If you are arrested while driving
a vehicle, for a DUI or driving on a suspended license for example, in
addition to searching you, the officer may also impound the vehicle and
perform what is called an “inventory search”. An inventory
search is just what it sounds like. The officers will go through your
vehicle and inventory its contents before impounding it. The purpose of
this is to avoid false claims of missing valuable property by a person
reclaiming their vehicle following an arrest, but it also serves as a
valuable tool for law enforcement to uncover additional evidence to use
against you. If additional evidence of a crime or contraband is found
during a search incident to arrest or an inventory search of your vehicle,
that evidence will usually be admissible against you in court.
If law enforcement attempts to question you following an arrest, you must
be advised of your right to remain silent. You may elect to waive your
right and answer the officer’s questions, but my advice in these
situations is to remain silent. Once you are arrested there are no magic
words you can say to make the handcuffs disappear and the jail door swing
open, so the better move is to answer no questions and ask for a lawyer.
If you aren’t comfortable just walking away, a good way to tell what
type of encounter you are having is by the way the officer approaches
you and what he says. An officer without a reasonable suspicion of your
involvement in a crime must be careful not to use words or actions that
would make a reasonable person feel they are not free to leave. In this
scenario, it is common for the officer to say things like, “can
I talk to you” or “do you mind if we speak for a minute”,
as opposed to “hold it right there” or “come over here”.
Law enforcement has been trained to use clever wording to make a request
sound like a command and to prey upon the average person’s ignorance
regarding their rights against unlawful detentions, so more often than
not it will be very difficult to know exactly what type of situation you are in.
As elementary as it sounds, a good way to help determine what type of situation
you are in is to ask. If you are approached by law enforcement and do
not want to speak with them, before you say anything else ask the officer
if you are free to leave. If law enforcement indicates you are free to
leave you know you are ending a consensual encounter. If you are not free
to leave you know that you are being detained due to the officer’s
belief of your involvement in a crime. As stated above, in this scenario
your best course of action is likely to refuse to answer any questions.
At the Albaugh Law Firm we are all former prosecutors and have seen thousands
of cases where people don’t exercise their rights and it results
in charges being filed against them. Know your rights, walk away from
encounters, and don’t answer any questions until you have consulted
with a knowledgeable and experienced criminal defense attorney. If you
have questions about search and seizure or any other criminal law issue
give us a call today. We offer free consultations and are happy to discuss