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5 Things to Remember during a Police Encounter

Posted By Emily Ghant (Johnson), Monday, October 20, 2014

See what local Criminal Defense Attorney, Noah H. Pines, thinks we all should know regarding interactions with law enforcement.

 

Every encounter with the police involves hundreds of variables. This guide cannot cover all of those variables but instead is designed to teach you how to stay safe and protect yourself during a police encounter and to educate you about some of your Constitutional Rights.

 

1. Stay Calm/Stay Safe

The key to any citizen/police encounter is to stay calm and stay safe. Getting stopped or approached by a police officer can be a nerve-racking experience. In fact, you often hear police officers ask people "why they are so nervous?" If you are stopped by the police officer, do not panic and do not do anything stupid (like try to flee, start hiding stuff in your car or throwing it out the window, or fight with the police). Instead, if you are the driver of a car, pull over immediately. Once you are pulled over, place your hands on the top of the steering wheel and leave them there until the officer has approached the side of your car and can see them. If a police officer sees you moving in your car or reaching for things, the officer will automatically think that you are either hiding contraband or reaching for a gun. This happened recently in South Carolina when a police officer instructed a man who had just stepped out of his car to "show his license." When the man reached back into his car to get his license, the officer shot him several times; the officer's excuse was that he thought the man was reaching for a gun. If you need to get something or reach for something, ask the officer for permission before you act. Be polite and respectful to the officer even if you do not think you did anything wrong. It is true that police officers often stop people for no reason or without legal justification. Even in this circumstance, it is not going to be helpful to argue with the officer. Arguing with a police officer is like arguing with a referee or umpire; you are not going to win the argument, the officer is not going to change his decision and unlike a referee or umpire, who can throw you out of a game, the officer can simply arrest you. Your lawyer will ultimately be the person who argues for you in court. If the officer made a mistake or treated you unfairly, let your lawyer deal with it as your lawyer can actually "win that argument" in court.


2. Are you being detained or are you free to leave?

There are three different levels of citizen/police encounters. The two that are important for this topic are the Tier 1 & Tier 2 encounters. A Tier 1 encounter is called a voluntary encounter in which a police officer can approach you and ask you questions without any belief that you committed a criminal act; you can walk away from a Tier 1 encounter at any time. The problem is that a police officer will never tell you that he is conducting a voluntary encounter and that you have the right to walk away unless you ask. So, if you are approached by a police officer, even before start answering questions (which we discuss in the "You have the Right to remain silent" section of this guide), you should ask the officer whether you are being detained or whether you are free to leave. If the officer says you are free to leave, then you know you can go. A Tier 2 encounter is often referred to as an investigatory stop and typically occurs when you are driving and pulled over. In a Tier 2 encounter, the officer may stop or detain you based on a reasonable articulable suspicion, which means that there is some objective evidence that you may have committed a crime. However, just because the officer has the right to stop or detain you does not mean that you are required to answer questions and incriminate yourself. Again, since an officer is not going to volunteer whether he is conducting a Tier 1 or a Tier 2 encounter, ask the officer if you are free to leave. As we know from the Tier 1 situation, if he says yes, then you can leave. If he says no, then if and when the case goes to court he will have to prove that he had enough evidence to detain you.


3. Do I have the Right to remain silent?

Yes, except for identifying yourself, you have the right to remain silent. You have that Right even if the officer does not inform you of that Right (which typically is not required unless your are under arrest and being interrogated). What that means is that you do not have to answer the police officer's questions, which are designed to get you to incriminate yourself. For example, if you are stopped and the officer asks "have you been drinking?" instead of answering "no" or "yes, but I only had two beers" you can simply answer, "officer I would rather not answer that question or any other question you intend to ask me." Many people are afraid to give that answer because they believe it will make the officer mad; however, all you are doing is exercising your Constitutional Rights and protecting yourself from making an incriminating statement, which is all that the officer is trying to get you to do. Let the officer be mad at you for exercising your Constitutional Rights; that is better than you getting mad at yourself after you made an incriminatory statement and end up arrested. Many people ask, "but then won't the officer think I am guilty?" Again, who cares what the officer thinks. It is better for the officer to think you are guilty for not making a statement, than to know you are guilty after you have either lied to him or made an incriminatory statement. Finally, it is a misconception that the officer's failure to inform you that you have the Right to remain silent will result in your case being dismissed. That rarely, if ever, happens.


4. Should I sign a statement?

If you failed to listen to my advice about exercising your Right to remain silent and are asked to sign a statement, please remember these simple rules. 1. If you are being accused of a crime, do not give or sign a statement without first consulting an experienced criminal defense lawyer. 2. Even if you cannot afford to hire a lawyer, ask to have a lawyer present to help you understand your Constitutional Rights. 3. Do not sign a statement you did not write. 4. Do not sign a statement you did not read. 5. Do not sign a statement you do not understand.


5. Should I consent to a search?

The 4th Amendment to the Constitution of the United States of American protects you from unlawful and unreasonable searches and seizures. Unless a police officer has a warrant, or there is a legal exception to the warrant requirement, he cannot conduct a search; this includes but is not limited to a search of your person, car, house, etc. One of those legal exceptions is if the officer has your consent to search. In my experience, over the past 20 years police officers have been trained to ask everyone that they come into contact with for consent to search, even if there is no evidence that a crime has been committed. If you are in your car, the officer may ask "you don't have any hand grenades, explosives, land mines or bombs in the car, do you?" When you answer "no" the officer will usually follow-up with "do you mind if I look?' You should mind and you should be offended. Do you really think the officer thinks you have a grenade in your car? No, he asks that question to knock you off your guard and to get you consent to a search. In my opinion, even asking for consent to search degrades your Constitutional Rights. Most importantly, the officer does not have to inform you that you have the right to refuse consent to search and the police officer can even lie to you to trick you into consenting. Recently there was a case in which a police officer went to the house of a suspected drug dealer and informed the person who answered the door that he was looking for a suspected rapist who might be hiding in the house; of course there was no rapist and the officer just wanted to search the house for drugs. You have the Constitutional Right to say "no" or "officer I do not consent to you conducting a search." These answers will typically cause the officer to ask you "what you have to hide?" If you feel it is necessary to reply, simply ask the officer if you have the Constitutional Right to refuse consent. When he says "yes" then just reply that you are exercising your Constitutional Rights.

 

 

Tags:  Atlanta Bar Association  criminal defense  felonies  interrogation  law enforcement  LRIS  police  traffic citation 

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