Published on 1/15/2022, 11:21:00 PM
Stopped by Police? Here's how you should deal with Police Officers.
One of the more stressful encounters a person can have is to be accosted by a police officer in the middle of the street, at your home, or in a traffic stop.
The Fourth Amendment of the United States Constitution protects a person's right to be free from an unreasonable search or seizure of their person, house, or property, without a warrant, unless an "exception" applies. These "exceptions" are put into practice on a daily basis by law enforcement by pushing the limits of police-citizen encounters, and applying each level in a coercive manner.
Police-Citizen encounters have been analyzed by the Maryland courts in several cases, and can be roughly described as three increasingly intrusive levels:
- The lowest encounter is a mere accosting, also known as a consensual encounter,
- A Terry stop, or a so-called "investigative" stop better known as a "stop and frisk" to pat a citizen down for weapons,
- A custodial arrest.
Each level of encounter needs varying degrees of justification, for instance, a police officer needs articulable reasonable suspicion to pat a person down over their clothes for weapons, as opposed to a hunch or a guess, unless that person consents to the pat down. And why would a person consent to being patted down? Often because they are so intimidated by the encounter itself that they are coerced into compliance.
The lines between the type of encounter, particularly between the consensual "mere accosting" and the Terry stop or custodial arrest, are the subject of a majority of motions practice in criminal defense, but from the outset, and to protect yourself from the police taking advantage of you during these encounters, or being patted down in front of friends or family, it is important to know, understand, and use the following questions and statements.
Do not hesitate to ask them as soon as possible with an officer to advocate and inform yourself as to the nature of the encounter from the outset.
AM I FREE TO GO?
I have had many clients during the course of my career who are stunned when a police officer testifies at a suppression hearing that they were free to walk away when the officer first spoke to the client. Officers approach in an aggressive manner, even "aggressively friendly", and begin peppering people with questions that are often intrusive, personal, and, frankly at times, none of their business.
People answer these questions because they feel like they have to. But these uncomfortable encounter can be avoided from the outset by one simple question as soon as you are approached. Either walk away and be told to stop by the officer, and ask them directly "Am I free to go?" If they say yes, leave. If they say no, ask why. If you are not free to leave, the encounter cannot be considered a mere accosting, and the Fourth Amendment must apply to the rest of the encounter.
I DO NOT CONSENT TO A SEARCH OR SEIZURE!
A Terry frisk, known as the "stop and frisk" is based on a case from Ohio in which a police officer saw an individual late at night appearing to "case" a closed business. The officer approached the individual, asked him for his name and why he was engaged in the suspicious activity, which was followed by a weapons pat down over the top of the individuals clothing due to the officer's specific articulation of his suspicion of weapons based on the circumstances of the case. The Supreme Court legitimized the search as allowable when law enforcement can provide "RAS" reasonable articulable suspicion, something less than "probable cause" and something more than a "hunch".
Ever since the decision, law enforcement have engaged in "stop and frisk" at lower and lower levels of reasonable suspicion that have trivialized the encounter to such a degree that legislatures have stepped in to limit the searches by statute. And when law enforcement cannot provide RAS, the consistent fallback excuse is that the person searched "consented" to the stop and frisk, often arguing that even if the person did not say yes, they stood by quietly and allowed the search to take place, and that was the equivalent of consent.
To take this false argument away from the police, if it becomes clear that they are going to touch, search, or pat you or your belongings down in any way, immediately say "I do not consent to search and seizure."
HAVE I DONE SOMETHING WRONG?
Police often like to justify their questionable actions after the fact, after they've figured out some objectionable activity that you may have taken part in that they didn't initially notice to justify a search or seizure.
Ultimately, if you have done nothing wrong you are not required to interact with a police officer during a "mere accosting", for instance, if a police officer walks up to you in the middle of the street, or if you are a passenger in a vehicle, you are not required to interact with that officer, give him your name, or the time of day.
If you are being pressed, ask "Have I done something wrong". If not, you should not have to interact with that officer at all. If they insist that you do, ask what that reason is.
IS THIS BEING RECORDED?
Slowly but surely, law enforcement throughout the State of Maryland are having body cam and dash cam installed in their vehicles. It is the best way to verify that all your prior questions and statements had been made, and the police responses to the statements.
If it is NOT being recorded, ask if you can record the interaction. If it is a public place, or your own private property, you, or someone in the area, should have the right to record the interaction.
I AM NOT GOING TO TALK TO YOU.
Under the Fifth Amendment of the US Constitution, you have a privilege against self-incrimination, meaning that you cannot be forced to give evidence against yourself in a criminal matter, and the privilege against self-incrimination comes into play when you are arrested. If you do not have the right to leave, you likely in custody, whether you are in handcuffs or not.
Miranda rights, which are the rights that are read to you when a police officer decides to arrest, they apply whether they are read to you or not. You can cut to the chase if you feel like you are in custody, and tell the officer "I am not going to talk to you." If pressed, say "I invoke my right to be silent". It is important that these rights be understood by the police and unequivocal, so repeat the expressions to make it clear that you are not intending to discuss anything.
I WANT TO TALK TO AN ATTORNEY.
Under the Sixth Amendment of the US Constitution, you have a right to counsel at every stage of a criminal matter, including the initial arrest, meaning that you cannot be questioned without an attorney present once you invoke the right to counsel. It is the quickest way to end a conversation with the police if you are in custody, as they are legally obligated not to question a person once that person asks for an attorney. This again must be unequivocal, the more formal sounding the better. "I want to talk to an attorney." "I invoke my right to counsel." Again, repeat the expressions to make it clear that you are not intending to discuss anything.
At this point it would be a good time to contact an attorney. Do you feel like your rights were infringed upon? Give us a call and we can discuss.