The Power of Police and Rules for Encountering Them – Part 3, by APC

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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.

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