Knowing your rights upfront can be the difference in defeating your criminal accusations on the back. Unlawfully obtained evidence is bad evidence. Bad evidence is not admissible against you in the court of law. If police violated your constitutional rights your lawyer will move to suppress the unlawfully obtained evidence. The likely result of suppressed evidence is a dismissal!
Three Critical Questions to ask with any police encounter are explained below.
1. Am I free to leave? – Mere Encounter
2. Am I being detained? – Detention based on Reasonable Suspicion
3. Am I under arrest? – Arrest based on Probable Cause
Am I Free to Leave? – Mere Encounter – When the police walk up to you.
A police officer has a right to walk up to you in a public place and speak with you. However, you also have the right to walk away. Unless, the officer has reasonable suspicion to detain you.
A mere encounter is an exchange of information. No level of suspicion (of criminal activity) by the officer is required and you are free to leave. That is why it is important to ask if 1) you are under arrest and 2) if you are free to leave. If you can leave then leave. A mere encounter is considered voluntary and your fourth amendment rights do not attach. Further refusing to cooperate with the officer does not give him reasonable suspicion to detain you.
What is the difference between a mere encounter and a stop or detention?
If the officer tells you that you are being detained or that you are not free to leave then the encounter becomes a stop or detention. A stop or detention is a temporary investigation. A frisk or pat down falls into this category. Essentially whenever a police officer restrains your freedom to walk away, you have been stopped or seized. Here, while you are not free to leave, you are protected by the fourth amendment against unreasonable stop or detentions.
Factors such as the officer’s tone of voice matter in determining if there has been a mere encounter or a stop/detention. The crux is whether you are free to leave.
Adamo & Adamo Law Firm Tip:
Ask the officer, “Am I free to leave.” If the officer says you are being detained he believes he has reasonable suspicion to detain you.
“Am I being detained?” – What is reasonable suspicion?
Reasonable suspicion means an officer can detain (i.e. investigate) if they have specific and articulate facts that: you are, have been, are presently, or soon will be involved in criminal activity. The basis for the detention can not be merely a hunch or gut feeling.
How long can I be detained?
There is not a bright line time limit for an unreasonable detention. However, the detention must be limited to the purpose of the stop and must only be long enough for the officer to affirm or dispel his suspicions. If the officer detains you too long or investigates matters not related to the initial stop, then he has violated your constitutional right not to be unreasonably seized (4th Amendment). If an officer’s detention is unlawful, your criminal attorney will move to suppress any evidence obtained after the detention.
Should I ask the officer why he stopped me?
Yes. Nothing wrong with asking this. You may not know why you were stopped. The officer may not have a lawful reason he stopped you.
Should I ask the officer, “Am I under arrest?“
Definitely yes. This question comes after “Am free to leave?” or “Am I being detained?“.
What if the officer says, “You are under arrest?”
You should tell him “you want your lawyer present for any further questions (5th Amendment and 6th Amendment).”
Should I ask the officer if I can make a phone call?
What if the officer says, “You don’t need your lawyers right now.”
You should tell him “you want your attorney present for any further questions (5th Amendment).” Be polite, but be firm.
What if the officer says, “You are not under arrest?”
Ask if you are free to leave.
What if the officer says, “You are not under arrest, but can not leave?”
This is the typical scenario, and you can consider yourself detained. In this instance you should inform the officer, “you would prefer not to answer any more questions and would like to have your lawyer present (5th Amendment).”
The ball is now in the officer’s court. He must choose to either let you go or prolong his investigation. If he lets you go, count your blessings. If he arrests you, then he needs to have probable cause to do so. If he detains you and exceeds the scope of the initial basis for the stop or prolongs the detention, then he has violated your constitutional rights.
Real examples of a mere encounter:
- Officer approaching you and asking questions = mere encounter.
- Officer asking what you are doing in the area, what your name is, if you have any drugs = mere encounter.
- Officer approaching an occupied vehicle and knocking on the window = mere encounter.
- Use of siren or emergency lights, surprisingly = mere encounter.
- Parking the police car in such a way that you can’t leave, surprisingly = mere encounter.
- Use of officer spotlight alone = mere encounter.
- Use of officer overhead lights alone = mere encounter.
Real examples when mere encounter turns into a detention:
- Officer approaches an occupied vehicle + orders the person to roll down the window = detention.
- Officer asking for permission to search = detention.
- Tellling occupants of a vehicle to exit and have a seat with hands in view = detention.
- Shining spotlight + order/request to come over to officer = detention.
- Police spotlight + police overhead lights = detention.
Real examples of reasonable suspicion:
(the court has upheld the stop believing the officer possessed reasonable suspicion)
- Slow driving on the highway + entering a parking lot late at night + business closed + driving behind building + turning car lights off + high crime area = reasonable suspicion to detain and investigate.
- Recent burglary of a motor vehicle + police officer speaking with victim + truck drives by slowly + victim saying they had seen the truck before and suspected he may be suspect = reasonable suspicion.
- Urinating in public = reasonable suspicion.
- Speaking to a known drug addict + high crime area + walking away at the sight of officer = reasonable suspicion.
- Late at night + pulling up close to police vehicle + revving engine + lurching movement towards police vehicle + close to bars = reasonable suspicion (DWI).
- Crossing onto shoulder of roadway multiple times + unusual use of turn signal + late at night + close to bars = reasonable suspicion (DWI).
- Weaving multiple times + late at night + officer training and experience = reasonable suspicion (DWI).
Driving “all over the roadway” = reasonable suspicion (DWI).
- Reaching for your waistband upon being approached by an officer.
- Admitting you were driving drunk.
- odor of alcohol + red, bloodshot, glassy eyes + slurred speech + admitting you were drinking.
- odor of marijuana.
Real examples of insufficient reasonable suspicion:
(unlawful stops and unlawfully obtained evidence)
- Evidence of flight alone (i.e. running when the cops show up) = not reasonable suspicion.
- Driving through a neighborhood where burglaries occurred = not reasonable suspicion.
- Parking at a closed business + late at night = not reasonable suspicion.
- Officer observes car hit the brakes + turn on headlights + immediate left turn to avoid officer + car registered out of county + 4 people in car = not reasonable suspicion.
- Anonymous tip + no corroboration = not reasonable suspicion.
- Quickly pulling out of a bar parking lot = not reasonable suspicion (DWI).
- Cutting off another vehicle = not reasonable suspicion (DWI).
- Weaving + lack of evidence regarding officer training/experience = not reasonable suspicion (DWI).
- Weaving one time = not reasonable suspicion (DWI).
- Weaving to avoid debris on road = not reasonable suspicion (DWI).
- Slow driving + lack of evidence regarding traffic on road = not reasonable suspicion (DWI).
- Screeching tires + lack of evidence regarding officer training/experience = not reasonable suspicion (DWI).
- Swerving within lane = not reasonable suspicion (DWI).
- Gang Membership
- Refusal to Cooperate
Real examples of a detention:
- Use of police overhead lights + boxing-in your car is a detention (i.e. the officer must have reasonable suspicion).