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.
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.
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?”
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.
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.