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DEALING WITH THE COPS (continued)

Before we go into the details of most police encounters, keep one rule in mind: You never need to talk to police for any reason. There is no legal mechanism that compels you to answer questions, testify, or provide verbal evidence about yourself or any activities you may have been involved in! Therefore, Rule 1: Never talk to cops!

Of course, like with any rules, there are certain provisos:

• “Never talk to cops” means to not offer up information or evidence. It does not mean sit there and remain a mute, or fail to respond to normal social courtesies. Most cops are normal people with jobs and families. The profession they have chosen is what puts food on their table. Don’t over-think common courtesy. When a cop asks “how are you today, sir?”, it probably means “how are you today?”, not “do you have a kilo of cocaine in your backpack?”.
• In order to invoke your rights, you must speak. (There’s more on that later.)
• Keep in mind what the nature of the police contact is before you make the decision not to speak. Traffic stops, for instance, are one area in which not speaking at all is likely to prolong the contact. Be smart.

LAW ENFORCEMENT CONTACTS DEFINED

There are three basic encounters with which you will come across police who are operating in an official capacity. Know these by heart, and understand the regulations and rules that govern each one. Failure to know which type of encounter you find yourself in will get you in lots (we mean lots) of trouble and unnecessary drama. We will illustrate each, with an example, to help clear up any myths or misunderstandings.

Consensual Encounters

You are walking down the street and a uniformed cop, who is on his beat, comes up to you and asks you if you have seen a certain individual with a blue backpack. Clearly, he is looking for someone. This is a consensual encounter. The police officer is simply asking you a question. The rules governing this are:

• You do not have to answer any of the officer’s questions.
• You are free to simply walk away or ignore the officer. (Be courteous, however.)
• The officer must not position himself in such a manner that a reasonable person would state that he is blocking your exit or impeding your egress of the area.
• If there is any question in your mind about this encounter, simply ask “Am I being detained? Am I free to go?”

Detention

In some cases, a detention may start out as a consensual encounter but then escalate into a detention. Here is the same example, with a twist: A uniformed officer is walking down the street. Upon seeing you, he asks you to stop. He has a reasonable suspicion that you resemble someone who committed a crime earlier that day, although he is not compelled to articulate his suspicion to you. (There is more on that later.)

The main difference here is in the verbiage of the officer and the way he treats the encounter. If an officer tells you to “stop” or “halt”, you, a reasonable person, would think that you were NOT free to go. The rules governing this are:

• The officer clearly tells you that you are not free to go.
• The officer tells you to stand in a certain place, or sit down.
• The officer blocks your egress (with his body or vehicle).
• The officer places you in restraints.

Whoa! Restraints? What do you mean? I haven’t been arrested! Well, here is another interesting bit most people are not aware of. During a legitimate detention, an officer can legally do two things, upon articulating a reasonable suspicion that a crime has been committed, is being committed, or will be committed. Please note that a police officer almost NEVER has to articulate this suspicion to YOU. He must articulate it to a magistrate or judge, if it comes to that. During a detention, an officer may:

• Place you in restraints (handcuffs) for his own safety. It does not mean you are under arrest.
• Perform a limited search (Terry Pat, or stop and frisk) by patting you down and looking for weapons. Note: The search must be limited to weapons, and therefore generally does not involve searching individual pockets (except by patting them down from the outside). Generally, any contraband found during such a search by illegal means is inadmissible. The cop is supposed to be searching for weapons, which means knives, guns, sharps, et cetera. These are fairly large. That tiny bulge in your pocket that contains a dime bag of cocaine is not likely to be a weapon; therefore, he cannot legally examine it.

The Traffic Stop

Lastly, the most common detention you will encounter as a citizen is the traffic stop. It plays out quite typically. You see reds and blues in the rear view and then pull over. Moments later, you are contacted by an officer. In this case, the fact that you are NOT free to go until you are released by the officer is a cultural norm that everyone knows, and therefore a reasonable person should realize that he or she is NOT free to go. If there is any doubt as to your status, simply ask the officer “Am I free to go?”

Make no mistake, traffic stops are most definitely detentions. Attempt to leave one without being told to do so and they will show you just how serious they are. There are some important rules and tips you need to keep in mind about traffic stops:

• ALWAYS pull over for reds and blues, even if you don’t think you did anything wrong. Your innocence is proven in a court of law, not on the roadside.
• If you suspect that the person pulling you over might not actually be a police officer (there are lots of scams involving phony traffic stops), call 911, pull your car over, and lock the doors and windows until you get confirmation from the dispatcher that the traffic stop is legitimate.
• You do not need to answer any questions, but you will find that it is almost impossible not to speak during a traffic stop. Don’t fall for fishing expedition-style questions like “Do you know why I pulled you over?” The answer to that question (even if you think you know) is always “NO, SIR.” Courtesy makes the stop go faster!
• There are many advocates of not rolling down your windows or even rolling them down only a crack so you can slide your documents through. There are several reasons why this is really bad strategy. For starters, the vehicle code of most states (i.e. the law) says that you must surrender your driver’s license to a peace officer upon request. This is the law, and it’s not optional. It is a condition of your license. Nine times out of ten, the officer will want to take the license physically. This is so that he can run it back in his cruiser and fill out the ticket. Lastly, he is physically feeling the license to see if it is a fake, which happens more often than you might think. Second, rolling down the windows might be an officer safety issue. He may not be able to hear you on a busy motorway with your window open just a crack. He may not be able to see you or your occupants with dark tinted windows. Therefore, if you are asked to roll down your windows, do it.
• Whatever contraband or illegal items the cop sees that happen to be in plain view will be admissible as evidence. This is the plain view doctrine. Most people know this, but did you also know that smells play into this? A strong odor of drugs or alcohol that emanates from you or your car is reasonable suspicion that you or your passengers may be in possession of contraband.

This leads us to the concept of vehicle searches and their legality. This also leads us to the point which most people will unknowingly venture into dangerous territory by trying to assert rights that they no longer possess, mainly because the nature of the stop has suddenly changed in the blink of an eye, but they are not aware of it. Pay attention, folks.

If the officer has spotted something illegal (or potentially illegal) within your car, he now has the probable cause to make an arrest. You are not free to go. You must comply with what you are told to do, and that might mean being asked to step out of the car. For your own good, you should comply. Your guilt or innocence (again) is proven in a court of law, not on the roadside.

Let’s use the booze odor as an example. If an officer can articulate in a court of law that he detected the odor of ethyl alcohol within the vehicle, based on his previous experiences and training, he now has the probable cause to check each occupant for sobriety, or lack thereof, as well as search the vehicle for places where booze might be located. Now think for a minute about where in a car booze might be located. You can hide an entire bottle just about anywhere. Partial bottles might be in the cup holder, glove box, or console. Even travel-sized mini-bottles can be stashed in the smallest of spaces. Remember, he has a right to look wherever a reasonable person would agree that booze could be hidden. While I do not like to think that a sworn officer of the law might lie and use the alleged smell of alcohol as a ruse to search the vehicle, the possibility still exists. The best advice for this situation is to not impede the search, and lastly, don’t be in the habit of carrying contraband or illegal goods in your car! Note that anything that the officer finds that is illegal and incident to the original search is admissible. So, if he smells booze, searches your glove box for a flask, and finds a bag of dope, it’s a totally legitimate and admissible find.

The overwhelming majority of Americans are law-abiding citizens, who more or less support the basic premise of police and what services they are supposed to be performing. In fact, even with the current buzz about law enforcement in general becoming too militarized (i.e. using military grade weapons and vehicles), Americans still respect the police, who are essentially there for all of our protection.

What most of us do not understand, however, is how to actually deal with police on their level. The average person has very little knowledge of what powers the police possess and an even smaller knowledge of what rules they need to play by, which are the questions that this guide will seek to answer.

GENERALITIES

First and foremost, let’s establish a set of ground rules, so we can better understand law enforcement and law enforcement contacts. With a myriad of federal, state, and municipal agencies, it is sometimes difficult to keep the rules straight as far as knowing which agency can do what, and how. Know this, however; federal law defines the vast majority of police contacts and rules in America, namely because the protections you enjoy as an American are derived from the Constitution of the United States. Additionally, many Supreme Court decisions have gone into the creation and maintenance of rules that govern police contact with the citizenry. Thus, we can make a pretty decent generalization that police contact with you, Joe American, will more or less follow the same set of rules, regardless of what state you happen to live in.

Are there exceptions? Absolutely. Some states have adopted stricter rules, which are not federal standards, in their interpretation of law enforcement contacts. As an example, some states have what is known as a “stop and identify clause”. What this means is that when asked by a law enforcement officer for identification (even as a non-motorist), it is illegal to refuse the officer ID. Other states do not have this provision in their state’s law books. It is outside of the scope of this guide to examine the nuances of all fifty states; instead, we will focus more on basic federal standards that apply to all states. Check the laws regarding the state in which you live!

INTERACTIONS WITH POLICE – THE BASICS

Consider that there are literally thousands of law enforcement agencies in the United States. Many of them wear uniforms with badges, even though they are not “police” in that sense of the word. Many of them also wear the moniker “POLICE” on raid jackets and other articles of clothing, even though their job is really not policing. In theory, every designated law enforcement officer is capable of making an arrest for a felony committed in their presence, and can even do so relating to a misdemeanor in some cases. In practice, many agencies will not touch crimes or infractions outside of their purview. As an example, the U.S. Postal Service maintains a uniformed force of “Postal Police” whose main job is to protect sensitive postal sites and offices. They have uniforms, guns, and badges. They drive vehicles marked police. In theory, they can arrest anyone for any crime. In practice, however, they refer all crimes not involving the post office to the local police or sheriff’s department!

Therefore, even though there are hundreds upon thousands of police agencies that operate in the United States, you as a citizen mainly only have to deal with your local police or county sheriff’s office, since generally speaking, federal agents don’t often deal directly with the citizenry, and special police (school police, park rangers, BLM rangers, fish and game police, et cetera) only interact with the citizenry within their areas of control.

This takes us to an important point, one which bears reflecting on:

If you are ever stopped or questioned by a police officer or agent who seems to be out of his jurisdiction, you should always dial 911 and ensure that a local police officer, local sheriff’s deputy, or state police officer arrives at the scene.

Here’s an example of why: You are driving along one night, and you get lit up by reds and blues. The officer comes to the car door, and you see that he is actually a fish and game officer. Even though you know that in your state fish and game officers have the same powers as general police, you are not on any hunting grounds, unincorporated areas, or areas where fish and game normally operate. Therefore, comply with everything the officer says but call 911 just in case, so the dispatcher will roll out a local police officer to oversee the encounter.

You would be surprised at how many law enforcement agents (federal, state, and local) will exceed not so much their authority but their jurisdiction. When we say jurisdiction, we don’t really mean their legal jurisdiction, which is often state wide, but we mean their virtual jurisdiction. As a member of a state law enforcement agency, this author can in theory investigate crimes, make arrests, and write cites statewide. In practice, however, this author will find himself reprimanded and even fired should he attempt to police outside of his lane. Keep that in mind!

LOCAL COPS

Most states will have three layers of policing that work in harmony, with three separate and distinct police agencies with more or less the same powers, overseeing more or less the same areas. They are:

State Police

Most states have something that resembles a state police agency. In some states, it might go under the name highway patrol, but it is still a state agency. These agencies mostly concern themselves with the patrol of highways, protection of the state capitol and other important buildings, and personal security for the governor and state law makers. Although they operate within cities and counties with their own law enforcement officers, they generally do not overlap local functions by courtesy; however, they can!

County Police

Most counties have a county police force headed by a sheriff. Keep in mind that an elected sheriff is a uniquely American tradition, and that the sheriff is almost always the chief law enforcement officer in the county. This is why some sheriffs find themselves in conflict with other police agencies, but the sheriffs usually win those conflicts. There is no higher law enforcement authority in a given county than the sheriff. County police also usually run the jails, and they provide bailiffs and court security officers as well as secure key infrastructure, like airports.

Municipal Police

Municipal or city police are the police force for a local area. It could be as small as Podunk, Iowa, with three officers, or it could be as large as Los Angeles, California, with 10,000 officers. Either way, the city’s officers are usually headed by a chief or commissioner, and while in most states, city cops have statewide jurisdiction, in practice, they are bound to operate more or less within their city.

The distinction within these layers of policing are important for you as a citizen to understand, because many bad law enforcement contacts are a direct result of some overzealous officers attempting to exert authority where they shouldn’t.

Here’s another example: You are camping in Humboldt County, in northern California. Your neighbor states he is a police officer and is concerned with something he sees in your tent. He asks to take a look and presents a Los Angeles Police Department shield and valid ID card, even though he is in civilian clothes.

Let’s examine this a little. Under California Penal Code 830.2, the officer standing before you is a valid peace officer with powers throughout the state, 24 hours per day. Again, in theory, they are within their jurisdiction. In practice, look at the following, however:

• The off duty officer is not acting in an official capacity during this encounter, and he will not likely have the support of his department.
• If the situation at hand is not a true “life or death matter”, the officer could face a complaint or reprimand.
• This situation is highly unusual, and you as a citizen should be extremely wary of it and call 911 if the officer insists.
• The way this would normally go down, if the officer is smart, is that he would call the local police, have them come out, identify himself as an off duty officer, and then tell them what he suspected he saw in your tent.

Remember, a smart cop will always refer a matter that is outside his purview to a local cop, so that you are always dealing with someone within your jurisdiction. Even federal agencies, like ATF, DEA, ICE, and US Marshalls will almost always include a couple of local cops from the area when they conduct raids, as a jurisdictional courtesy to the local law enforcement agency.

DEALING WITH THE COPS

Okay, so we have basically established that police contact from someone far outside your local area is an anomaly, and while it could technically be legitimate, in practice it is rare, unusual, and should be treated with suspicion. But how about the local cops? Well, these are the local police you see almost every day, and if you do have a law enforcement encounter, it is likely to be with these officers. Therefore, we will now examine how to deal with these people.