By: Armando Galvan, Atttorney
As a native of Imperial Valley and Mexicali, I have witnessed and even experienced the feeling when a police officer pulls you over to the side of the road when you commit a traffic violation while driving. And yes, it is the worst. This article will inform you of the rights you have in the case you encounter a police officer, and not just while driving, but for any other reason.
Our constitutional rights are not so much of use if we don’t know them. The truth is that the vast majority of the population is not familiar with the constitutional rights that we, as citizens of the United States, have. And in case that you are not a U.S. Citizen, there are several Amendments of the Constitution that could apply.
There are three levels of police/citizen encounters; consensual, investigative detention, and arrest. In order to understand this concept is vital to have a good understanding of the governing law that applies: The 5th Amendment. The 5th Amendment states “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.
Three types of encounters with police;
Consensual stops (casual conversations with an officer) do not require any evidence for an officer to stop a person. Normally, a person is free to leave and is not required to show any proof of identification. Officers have the right to search a person or a car for objects that are in plain sight. An investigative detention is a temporary detainment for further information. The evidence level required for the officer to detain a person is higher because the officer needs a reasonable articulable suspicion that a person has committed a crime. Usually, the person is not free to leave if it is within a reasonable time (approx. 15-20 min. max). In some states, such as California, you are required to show proof if identification. An officer legal search includes a frisk, search for items in plain sight or consensual. An arrest occurs when a person is taken into police custody. The evidence level required for an arrest requires probable cause, which is the highest of them all. It is very important to have a good grasp of the definition of probable cause. Probable cause exists when under the totality of the circumstances, a reasonable person would believe there is a fair probability that a crime has been committed and that the person committed the crime (cite). Thus, if an officer does not have sufficient articulable facts indicating that a person has committed a crime, probable cause does not exist, and the arrest or detention will be in violation of the 5th Amendment.
What to do if you come in contact with a police officer?
- If they come to your home, do not invite them into your home! Do not answer any questions. Always ask for contact information (slip it under the door). Remember, anything you say may and will be used against you. Take notes; who are they; why are they there; what agency are they from; time and date; description of the officers.
Here are some scenarios that will show you how to exercise your rights;
- AM I OBLIGATED TO SPEAK/ANSWER QUESTIONS?
- No! The 5th Amendment: Right to remain silent.
- CAN POLICE SEARCH MY HOME OR OFFICE?
- Yes, but ONLY with a search warrant.
- A warrantless search = “I do not consent to a search”
- Roommates and your boss may let officers inside your home and workspace.
- WHAT IF THE POLICE HAVE A SEARCH WARRANT?
- If you are at home, request to see the search warrant
- Agents may only search the designated areas listed in the search warrant
- If they search beyond what is described in the search warrant remember the key words, “I do not consent to the search”.
- WHAT IF POLICE STOPS ME ON THE STREET?
- Ask if you are free to go.
- Never give a false name.
- If you are detained, they can only pat you down, only if:
- Police have a reason to suspect you may be armed, and
- You are dangerous.
- You do not have to open bags or any closed containers.
- WHAT IF POLICE STOP ME IN MY CAR?
- Keep your hands where police can see them.
- Do not physically resist a search, if you do not wish to be physically searched, remember the key words: “I do not consent the search”.
- If you are the driver, do show proper documentation.
- If you are given a ticket, sign it.
- Breathalyzer, do you have to take it? No, you have the right to refuse. But be warned, refusal is an automatic, irreversible suspension of driver’s license.
- IF I GET ARRESTED, DO I HAVE TO ANSWER QUESTIONS?
- The Miranda Rights will protect you once you have been arrested. They are read only once you are in police custody.
- Clearly state that you want an attorney and that you wish to remain silent!
- Even if you already have answered some questions, you can still refuse to answer further questions.
- REMEMBER: only a judge can order you to answer questions.
Tips for exercising your rights safely
- Always be polite.
- Always be respectful.
- Always keep your hands visible.
- Ask to leave often.
- Ask if request are orders
- Record encounter immediately.
- Report any violations of your rights.
You have rights, know them!