If the police walk up to me can I walk away?
Maybe. 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.
What is reasonable suspicion?
Reasonable suspicion means an officer can detain (i.e. investigate) you 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 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 holds 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).
Should I ask the officer why he stopped me?
Yes.
Should I ask the officer if I am under arrest?
Definitely yes.
What if the officer says, “You are under arrest?”
You should tell him “you want your attorney present for any further questions (5th Amendment and 6th Amendment).”
Should I ask the officer if I can make a phone call?
Yes. If he allows it, call your attorney!
What if the officer says, “You don’t need an attorney 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?”
You should then ask, “am I going to be written a ticket?”.
If the officer says, “yes” ask if “you will be free to leave once the ticket is written?”
What if the officer says, “You are not going to be written a ticket?
Then 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 (see Probable Cause. Explanation and Examples). 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. Any evidence obtained is inadmissible in a later court proceeding.
Examples of 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).
Examples of insufficient reasonable suspicion:
- 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).
Examples of what constitutes a detention:
- Use of police overhead lights + boxing-in your car = detention (i.e. the officer must have reasonable suspicion).