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Detention: THE TRAFFIC STOP (continued)

What if the officer pulls you over and sees a shotgun on the seat beside you? Assuming your state of residence does not allow the transport of long guns in this manner and what you are doing is illegal, then the officer has the right to search for more loaded guns. Keep in mind that he now can only search for places that might house an object the size of a long gun. Searching for objects the size of a pistol would also be reasonable under the circumstances. What would NOT be reasonable is searching a tiny coin holder or opening up a glasses case. It is unreasonable to think that either of these places could house a loaded gun. So, if the officer finds some contraband in one of those small places, it will likely be inadmissible because his search was supposed to be restricted to places where a gun could be concealed.

Lastly, remember that a police officer almost never has to reveal to you, the citizen, the reason for the probable cause or reasonable suspicion. In a purely traffic-related matter, most people will ask “why am I being pulled over?” and the officer will usually respond with the vehicle code infraction that the driver performed. However, if the officer sees something that he thinks is illegal and asks you to exit the vehicle, you will often not be told why you are being asked to step out of the car. He has no obligation to reveal to you what his reasonable suspicion or probable cause may be.

This brings up the question of resisting. If you are asked to step out of the vehicle, you should do it. You simply have to trust that the officer is acting in an official capacity and is being truthful and honest. Yes, we know there are times when this is not the case, but if the officer truly has an articulable, reasonable suspicion or probable cause and you attempt to resist his command, he can now use whatever reasonable force he needs to use in order to extract you from the vehicle.

If the officer says for you to step out of the car and you refuse (even after multiple warnings), expect to experience oleoresin capsicum (OC) spray or a taser. Whether you agree with this or not, it’s the reality. Generally speaking, there is never a good reason to physically resist law enforcement…ever. Want revenge for being ill-treated? Sue the department, and you’ll probably get millions in a settlement without ever having to go to court. Don’t, however, physically resist or engage a police officer. It is a losing proposition.

Arrests

Now we move from detentions into true arrests. Know this: All arrests are motivated by probable cause. Reasonable suspicion is just what it sounds like; it is what a lay person who witnessed an event while walking past the scene would reasonably believe had occurred. Reasonable suspicion is a lower standard than probable cause, and it would be sufficient to detain you.

Here is an example: You are driving down the road. Someone inside the car throws out an empty beer can. A reasonable person might suspect that someone inside the car may be consuming alcohol, and thus the officer has a reasonable suspicion to pull the car over.

Probable cause is a higher level than reasonable suspicion. Probable cause is a concrete fact that would suggest that a crime has occurred, is occurring, or is about to occur, and probable cause is good enough to arrest an individual and take them before a magistrate to prove innocence or guilt.

Probable cause is a pretty black and white standard, and it usually involves the finding of specific evidence on your person or within a place that you have immediate control over. Needless to say, if you are caught in public with a half key of cocaine in your pocket, the officer has the probable cause to arrest you! It is important to note that your arrest does not imply you are guilty. All it means is that the officer found a probable cause to take away your freedom by arresting you, and a court of law will at a later date determine your guilt or innocence.

There are certain things that accompany arrests that you should be aware of:

• When being arrested, you do not necessarily have to be read your Miranda rights. Miranda rights (“You have the right to an attorney; you have the right to speak to a lawyer; …”) only attach when two conditions– custody and interrogation– are present. You might be in custody, but unless you are being interrogated there is no need to read you your rights. Most department policies will mandate the reading of a Miranda warning during arrest, however.
• During an arrest, you do not necessarily need to be informed of the exact charges pending against you. These will be presented during an arraignment hearing.
• During an arrest, it is legal for you to be fully searched, and you should expect to be. This is not a terry pat or frisk search; this is a full search of you, your person, and your belongings, including purses or backpacks. If you are driving a car, your car will be searched prior to impound.
• There is no good reason to speak to police during an arrest. Keep your mouth shut. They are already on a heightened alert on you. Anything you say WILL be used, for sure, I promise!

Your Rights During An Arrest

As this guide is intended to be a blueprint for the lay person to follow, we have avoided citing prominent Supreme Court cases or anything written in legalese. So we’ll continue that format in this section.

If arrested, you have two basic rights– the right to remain silent, and the right to an attorney. This is probably a good time to reiterate that there is NEVER any good reason to speak to police in general, and there is even less reason after you have been arrested! Get the idea out of your head that you will be able to “clear up the story” or “prove your innocence”. Speaking is a losing strategy!

However, a recent series of Supreme Court cases ending in Berghuis vs Thomkpins have set important case law that you should be aware of. You must remember this rule:

In order to invoke your right to remain silent, you must speak! It sounds funny, but the Supreme Court has decided that simply remaining silent is not an invocation of the right to remain silent. Basically, keep it simple. State the following: “I do not wish to speak to you or answer any questions.” That will do just fine, but you must say something. Please note that just because you have invoked your right to remain silent, it doesn’t mean that the police must stop questioning you. Most will but not always. You never have to answer. Also, police may resume questioning or seek a waiver of your right to remain silent after “a reasonable amount of time has passed”. What constitutes a reasonable amount of time varies from jurisdiction to jurisdiction, but it may be as little as 30 minutes, although most jurisdictions place it at about two hours.

What does this mean in plain English? It’s simple. You get arrested, the cops ask you questions, you state that you don’t want to speak, they take you back to your cell, and then they call upon you a little later to see if you have changed your mind about speaking, which you haven’t… because you read this guide!

Your right to an attorney is pretty simple to understand. You simply ask for an attorney, and one needs to be called for you. This can either be “your” attorney, or if you cannot afford one, it can be a public defender, which is provided to you at no cost. The rules regarding invocation of your right to an attorney are a little different than your right to silence. Note that we always recommend asking for an attorney. Once you have invoked your right to an attorney, all questioning must cease. That, in and of itself, is probably a good reason to ask for one. Besides, your attorney knows the ins and outs of the legal system and will get you out on bail much faster than you could on your own. Once you have asked for your attorney, the police must not question you unless the attorney is present.

One final proviso should be noted here. The police have the right to question you about a different crime than the one you have been arrested for, even if you invoke your right to silence and your right to an attorney. So, if you were arrested for an illegal weapon and are also implicated in a robbery, the police can question you about the robbery, but they must not question you about the illegal weapon.

CONCLUSION

Knowing the basics and mechanics of the rules that police are governed by will keep you out of all kinds of trouble. Remember, Almighty God gave you certain inalienable rights which are guaranteed by the Constitution of the United States. These rights, coupled with case law by the Supreme Court, dictate the rules that must be followed during an encounter between you and police. There is much that has been left out due to the short length of this guide, but these are the basics.

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.