Getting stopped by the police can be a troubling experience – particularly if you are not sure what you did to elicit attention from law enforcement.
If you’re like most people you respect the uniform and the job the police do but you don’t want to just roll over either. And then there is the matter of your rights in such a situation.
For instance: are you compelled to answer questions? Are you free to leave? Do the police need a search warrant to look through your backpack? Do they have to inform you of your Miranda rights?
Why do the Police Stop People?
There can be a number of reasons you might be stopped by the police. The 4 most common are:
- Suspicion of having committed a crime – The police will stop you if they have reason to believe you have committed a criminal act.
- Traffic violations – Running a red light, speeding, failing to stop for pedestrians in a crosswalk, suspicion of driving under the influence etc…
- Actual criminal conduct – An officer may have observed you committing a criminal act such as assault, robbery or any one of a thousand different infractions.
- There’s a warrant for your arrest – Officers may come to the door of your home or approach you in your place of work to enforce an arrest or bench warrant.
In the majority of encounters, police will begin asking questions almost immediately. Who are you? Where are you coming from? Have you been drinking? It’s important to remember that even during a routine stop the officer is free to ask whatever questions they want.
They are also free to ask if they can search you, your car, your backpack or anything else. As long as you are not in custody they don’t need to inform you of your rights or have a search warrant. As such if they ask “Mind if I have a look in your bag?” and you agree you are potentially opening yourself up to a world of hurt in the long run.
So Do I have to Answer Questions if the Police Stop Me?
With only a couple of exceptions, no. In some states, it is illegal to refuse to identify yourself if the police officer asks you to. But even in such states, they must have reasonable suspicion that a crime has been, is being or will be committed to demand identification. And even so, you are not compelled to identify yourself if you believe doing so will lead to self-incrimination.
In most cases, the smartest thing to do is to ask “Am I free to go?” at the earliest opportunity. If you are then the officer has to tell you so. If you are not then you are being detained and should not say anything. Be mindful too that there’s a difference between being detained and being arrested.
And That Difference Is?
Not all detentions lead to an arrest and a detention is, by nature, short term. Nonetheless, in such cases, besides having the right to ask you questions and ask if they can search you and/or your belongings the police have the right to pat you down and they can also instruct you to wait while they run your ID to search for outstanding warrants. In addition, if they suspect you may have a weapon they have the right to reach into your pocket or wherever they suspect the weapon is being held in order to protect themselves.
You’ll notice I haven’t mentioned anything about Miranda rights. That’s because the police are provided a lot of leeway before they ever have to inform you of your rights in accordance with Miranda. That only comes into play when you have been arrested.
So When Am I Under Arrest?
Exactly when detention becomes arrest is often times hard to determine. Essentially it comes down to whether you have a reasonable expectation of walking away from the encounter. If you don’t you should consider yourself under arrest. In order for an arrest to occur the police must have probable cause that a crime has been committed or will be committed. Unlike what you’ll see on TV and in movies, however, this rarely results in an officer saying “You are under arrest…” and then reeling off your Miranda rights. In fact, you may never be told you are under arrest.
So How Do I Know if I’m Under Arrest?
In some cases, the officer will inform you that you’re being arrested. In most cases, though you’ll have to read the tea leaves.
- Are you free to go? – If not you may be under arrest.
- Have you been detained for more than 20 minutes? – If so you may be under arrest.
- Are you handcuffed? – If so you are likely under arrest.
- Are you handcuffed in the back of a patrol car? – If so you are under arrest.
- Are you being detained in the police station? – If so you are under arrest.
- Have you been informed of your Miranda rights? – If so you are under arrest.
What About Those Miranda Rights?
The police are compelled to inform you of your Miranda rights before any custodial interrogation takes place. For example: if you are in the back of a police car and the officer wants to ask you questions they have to inform you of your Miranda rights first, (including the right to have an attorney present during any questioning).
However, if they handcuff you, transport you to the station, charge you with disorderly conduct and release you shortly after without asking any questions you’ll likely never hear your Miranda rights, or be given a phone call.
The Bottom Line
If you are stopped by the police for any reason it’s important to remember that such situations almost never play out the way you’ve seen them on TV. So stay in the real world and ask if you are free to go. If you’re not, don’t agree to anything or answer any questions until you talk to an attorney.