Police encounters and traffic stops

I'm not an attorney, so this article is merely a summary of what I've learned in the last five years researching a person's rights during police encounters. It's a common assumption that refusing to cooperate with police makes you look guilty, but there are three things you can say to an officer and he or she will recognize unequivocally that you're exercising rights guaranteed by the Constitution. Asserting your rights cannot give an officer justification to elevate an encounter from a consensual one to a seizure.

Most people believe, as I do, that most cops are good. It's innate in most of us to want to cooperate with authorities. We want to be regarded as honest and helpful. And we believe demonstrating courteous behavior will result in the best possible outcome. We'll even thank an officer after being handed a $150 speeding ticket.

But police officers are heavyweight fighters when it comes to citizen encounters and, believe me, you are no match for their ability to expose even the most honest and miner of infractions. They're experts in the art of inviting you to forfeit your rights, especially if they think they smell something fishy.

As a side note, I came across a blog called Pick Your Battles that has a very clean and helpful article about dealing with internal Border Patrol checkpoints, based on personal encounters, and it's complete with links to applicable legal precedent.

What I think you should do if stopped by police.
If you're driving and are pulled over, you'll be asked for your driver’s license, registration and proof of insurance. Calmly retrieve them and hand them over. If asked, you should exit you vehicle (but lock it). With exceptions described below, you're required to follow most police orders. You must also sign any citations you are issued as an acknowledgement that you received the citation(s) and that you promise to appear or otherwise satisfy the requirements of any tickets. Signing doesn't indicate guilt, nor does it mean you agree with the charge.

Some say that you should only roll your window down a few inches, just far enough to pass papers back and forth. Such a practice is designed to prevent an officer from leaning into your car and then later claiming he or she got a "good whiff" of a "strong odor" of an alcoholic beverage or marijuana. The hope, I gather, is that the officer won't want to be so obvious in seeking evidence that he would stick his nose through the cracked window.

You're not required to consent to any searches, pursuant to the Fourth Amendment. If you're being arrested (probable cause is required), no consent is needed in order to conduct a thorough search of the person and vehicle (or the area occupied by the subject). If you're merely being detained (investigative detention requires reasonable, articulable suspicion of a crime), then police may give you a once-over "pat-down" for weapons. "Plain view" (areas viewable from outside the car) and "plain feel" (felt during a frisk) doctrines give police authority to seize items and substances that are immediately identifiable as contraband, such as banned weapons, drugs or paraphernalia.

Police can play on your ignorance and manipulate you into consenting to a search. It gets to be an artform. There's one case where a gentleman was pulled over for speeding and was invited to sit in the state trooper's prowler "to stay in, out of the rain." But when the subject reached the door handle, the trooper told the guy he had to pat him down before he got in -- something that's "routine" and for his "own safety." The cursory frisk yielded a paraphernalia charge and resulted in a complete search incident to arrest, which subsequently revealed a novelty item that was nearly mistaken for a dangerous weapon. I guess the cop thought he'd screwed the guy badly enough with his trickery and let the whacky looking dagger slide.

It's a fact that you're not required to answer any questions, pursuant to the Fifth Amendment. Whether or not you are being detained or arrested, you are never under any obligation to answer any questions. If you're free to go, then obviously there is no requirement to give any information and the encounter should be terminated. In the case above, the trooper demanded to know what each item he felt was in the pockets. "What it that? Is that a pipe?" Sadly the victim helped convict himself by submitting that it was indeed a pipe used to smoke marijuana.

There are three general levels of police encounters:

I. Consensual
This is often described as casual conversation. It's absolutely consensual; in other words. you're free to terminate the encounter and you are free to go. This is important to recognize because any information an officer collects at this point is voluntary on your part and is admissible in court.

II. Investigative detention
At this point, you are not free to go. The officer may or may not inform you that you are being detained, but you might find yourself in cuffs, being patted down for weapons. In order for an officer to legally detain you, he or she must have more than a hunch, according to the high court. Police require "reasonable, articulable suspicion" that crime is afoot and that you are the perpetrator of said crime. While you have a right to know why, the officer may not be obligated to immediately disclose the nature of the suspected crime, even if you demand to know. Most good cops will be more than willing to detail the fishy circumstances justifying your inconvenient predicament.

III. Arrest
Once a police officer feels he or she has "probable cause" or enough evidence to arrest you for a crime, then you are probably being handcuffed and placed in custody. It's likely that you and your vehicle (or the area you occupy) will be thoroughly searched (called search incident to arrest).

Everyone ought to know and and exercise their rights. This tends to frustrate certain kinds of personalities that don't take well to being challenged. The following are commonly recommended utterances everyone should direct to police at every encounter:

1. "Am I free to go?" The answer will establish whether the encounter is consensual, an investigative detention or an arrest. That matters in court because it could mean that evidence against you will be suppressed and any case brought against you as a result of the suppressed evidence would be thrown out with it.

2. "I won't answer any questions without my lawyer." Nobody knows how many laws exist, but the number is thought to be in excess of 10,000. Can you be certain you've never violated any of them? Can you be absolutely certain the officer can recount and characterize your statements accurately when called as an expert government witness to testify against you at trial? If you don't answer any questions, then none of your answers can be unintentionally mischaracterized or used to convict you. But it's not enough to merely remain silent; the US Supreme Court says a person must now explicitly assert that right before it is recognized. "Lawyering up" may well be the most prudent course.

3. "I do not consent to any searches." During consensual encounters and investigative detentions, police are always free to ask whether you mind if they "take a quick look" in your car. It's always phrased in a casual, no-big-deal way, but when you consent, a complete stranger is now free to rifle through your personal belongings, dumping your things on the road -- and even "inadvertently" breaking valuables. Are you 100% certain that you have nothing that could be construed as contraband? Giving police permission to "take a quick peek" is always a big deal. It can only give them extra rope to hang you with.

Fourth Amendment
"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."

Any involuntary detention is considered a seizure under the Fourth Amendment, so holding you requires some grounds. While the standard in the amendment is "probable cause," courts have allowed the lesser standard of "reasonable suspicion" of a crime to be enough to keep you in place while they determine whether they have enough to arrest you.

Any time you refuse consent for a search, an officer can always threaten to call in a K-9 unit (drug detection dog), but police don't have unlimited authority to expand the scope of the initial lawful detention unless their reasoning is well founded. Whether your car has ever had any amount of drugs in it, a dog may or may not give a legitimate indication that it detects drugs. This can be problematic for you because once an officer testifies in court that a detection dog indicated on your car, probable cause for a full search is established, even if no drugs are ever found.

Do I have to identify myself whenever an officer asks?
Beyond carrying a driver license while driving, there are no laws in Iowa that require you to carry identification at all times. Therefore you cannot be compelled to produce identification while generally being out in public, even if you're a passenger in a car or on the highway riding your bicycle. However, during a lawful detention, when they have reasonable suspicion to detain you, you may be asked to identify yourself. It's not clear exactly what that means in Iowa; do you have to answer, and if so, how detailed must one be in response to such an inquiry? Those answers should come from an attorney familiar with ID requirements in this state.

Here's what the ACLU has to say about dealing with police.

WHAT TO DO IF YOU’RE STOPPED BY POLICE, IMMIGRATION AGENTS OR THE FBI

YOUR RIGHTS
•You have the right to remain silent. If you wish to exercise that right, say so out loud.
•You have the right to refuse to consent to a search of yourself, your car or your home.
•If you are not under arrest, you have the right to calmly leave.
•You have the right to a lawyer if you are arrested. Ask for one immediately.
•Regardless of your immigration or citizenship status, you have constitutional rights.

YOUR RESPONSIBILITIES
•Do stay calm and be polite.
•Do not interfere with or obstruct the police.
•Do not lie or give false documents.
•Do prepare yourself and your family in case you are arrested.
•Do remember the details of the encounter.
•Do file a written complaint or call your local ACLU if you feel your rights have been violated.

IF YOU ARE QUESTIONED ABOUT YOUR IMMIGRATION STATUS

You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials.

You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports, and for individuals on certain nonimmigrant visas, including tourists and business travelers.)

If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you.

If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.

Do not lie about your citizenship status or provide fake documents.

IF YOU ARE ARRESTED

Do not resist arrest, even if you believe the arrest is unfair.

Say you wish to remain silent and ask for a lawyer immediately. Don’t give any explanations or excuses. If you can’t pay for a lawyer, you have the right to a free one. Don’t say anything, sign anything or make any decisions without a lawyer.

You have the right to make a local phone call. The police cannot listen if you call a lawyer.

Prepare yourself and your family in case you are arrested. Memorize the phone numbers of your family and your lawyer. Make emergency plans if you have children or take medication.

Special considerations for non-citizens:
•Ask your lawyer about the effect of a criminal conviction or plea on your immigration status.
•Don’t discuss your immigration status with anyone but your lawyer.
•While you are in jail, an immigration agent may visit you. Do not answer questions or sign anything before talking to a lawyer.
•Read all papers fully. If you do not understand or cannot read the papers, tell the officer you need an interpreter.

IF YOU ARE TAKEN INTO IMMIGRATION (OR “ICE”) CUSTODY

You have the right to a lawyer, but the government does not have to provide one for you. If you do not have a lawyer, ask for a list of free or low-cost legal services.

You have the right to contact your consulate or have an officer inform the consulate of your arrest.

Tell the ICE agent you wish to remain silent. Do not discuss your immigration status with anyone but your lawyer.

Do not sign anything, such as a voluntary departure or stipulated removal, without talking to a lawyer. If you sign, you may be giving up your opportunity to try to stay in the U.S.

Remember your immigration number (“A” number) and give it to your family. It will help family members locate you.

Keep a copy of your immigration documents with someone you trust.

IF YOU FEEL YOUR RIGHTS HAVE BEEN VIOLATED

Remember: police misconduct cannot be challenged on the street. Don’t physically resist officers or threaten to file a complaint.

Write down everything you remember, including officers’ badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses. If you are injured, take photographs of your injuries (but seek medical attention first).

File a written complaint with the agency’s internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish.

Should Senator Grassley run again?

I've said this isn't about Senator Grassley, but about the senior ruling class and the culture of submission to capitalistic gluttony they cultivate.

Continuing to say yes to rehiring our own Congressional delegation is hypocritical and irresponsible in the face of a 10% Congressional approval rating.

Members value their posture over their positions and getting re-elected over integrity.

It's now our civic duty to change the culture in Washington in every single district. We start by dismissing incumbents any way we can.

Don't Talk to Police

It's often thought that the Fifth Amendment is something you invoke to cover guilt. In court, an innocent man will certainly take the stand in his own defense, right? After all, only someone who is guilty would choose not to take the stand. Chances are pretty good that you, too, believe this. But if you have an hour, I believe I'll convince you otherwise -- and possibly give you an eye-opening experience along the way.

If you're innocent of a crime, there is no possible benefit in talking to the police. You may want to be regarded as cooperative and helpful, but in fact, only bad things can come of this choice. If at any point during the course of a long interview (interrogation, actually) it's discovered that you have broken any one of tens of thousands of laws, you've just set yourself up for prosecution and possible conviction -- and most certainly ruined your credibility with any jury. If you are guilty, you will certainly be convicted on statements and admissions you make to police contrary to your rights under the Fifth Amendment.

Understand that police officers are experts who investigate thousands of crimes during their careers and have infinite opportunities to find something in your statements -- in or out of context -- that might sound peculiar to a jury. They are better at this that you are. Not even cops and lawyers can talk themselves out of arrest; all the truly wise ones say nothing at all. In court, cops are expert witnesses and it's always their word against yours.

Traffic cops can stop a thousand drivers every year and have become very good at asking the right probing questions, seemingly innocuous, getting people to admit guilt, getting them to forfeit their rights to privacy and protections from warrantless searches and seizures. When you encounter police, no matter how smart you think you are, no matter if you're a quick study or think good on your feet, you're a 90-pound weakling entering the ring with an olympic boxer; you will get knocked out.

If a cop wants to stop you, he can simply follow you until he or she observes faulty equipment or you violating a traffic law. Not if. When. Nobody is capable of driving perfectly. To avoid being stopped, you would have to make sure a thousand conditions are provably perfect, but the officer only needs one as a valid reason to stop you. Guess who always wins.

When you are stopped, it's pretty tough to sit in your car and be perfectly quiet with a cop at your window asking questions in an urgent or commanding tone -- or even in a very friendly and accommodating way. "Do you know why I pulled you over?" "What's the hurry?" "Do you know how fast you were going?" "Do you know the speed limit here?" "Where are you headed?" "Do you have anything illegal in your car I need to know about? You don't mind if I take a quick look, do you?" You may not be compelled to tell him everything he wants to know, so you might exaggerate or say something not entirely true. People inherently want to be accommodating, to tell their story and even tell partial truths (yeah, I was speeding a little). If he or she detects one lie or catches you admitting to driving 1 MPH over the limit, they win. And if you lie, you can be arrested on the spot, which means your car is subject to search and you will be written up for as many violations as they can find.

Even if you’re guilty of some crime, there’s plenty of time to confess, so why rush to give a detailed account to the first officer that wants to interview you and possibly say something that might sound like a lie? Let your attorney help you decide the appropriate time and manner to provide details of your crimes, and possibly be able to negotiate a lighter sentence in exchange for your cooperation -- an opportunity that would otherwise vanish if you speak up right away. US Supreme Court Chief Justice Robert Jackson famously opined in his 1949 decision in Watts v. Indiana that "...any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." Regent Law School Professor James Duane teaches this: 1) even perfectly innocent citizens may get themselves into trouble even when the police are trying to do their jobs properly, because police malfeasance is entirely unnecessary for the innocent to convict themselves by mistake; 2) talking to police may bring up erroneous but believable evidence against even innocent witnesses; and 3) individuals convinced of their own innocence may have unknowingly committed a crime which they inadvertently confess to during questioning.

There are three types of police encounters:
Consensual
Investigative detention
Arrest

In a consensual encounter you’re free to go about your business if you choose to. Any questions you answer are considered part of a casual conversation among regular people and not part of an investigation. But things can escalate to the next level rapidly, depending on the information you happen to share with the officer. You do not have to answer police questions.

An investigative detention means you’re not free to go and you may or may not be given a Miranda warning. At this point, there’s no probable cause to arrest you, but there are now circumstances that give rise to reasonable articulable suspicion that you have committed a crime or are illegally armed and a potential danger to the public or the officer. At this point you can be frisked (Terry v. Ohio) for weapons. In certain circumstances you may be handcuffed and even placed in the back of a police car. They still need your consent to do a thorough search of you and your vehicle, but if they should ask for your permission, you are within your rights to tell them you don’t consent. You still do not have to answer police questions.

Arrest means you’re going to jail in cuffs and you’re most certainly not free to go. Before an officer may legally arrest you, probable cause that you have committed a crime must be established and he or she may now search you and your vehicle, if for no other reason but their safety and that of the impound attendants. They don’t need your consent at this point, but you continue to have the right to not answer any questions.

Three things defense attorneys beg their clients to say -- and nothing else:

1) Am I free to go?
2) I have nothing to say without my lawyer.
3) I do not consent to any searches.

Every defense attorney and every police officer worth their weight can give dozens of examples of how you're at a disadvantage during any police encounter. Never consent to searches and don't answer any questions, but do ask if you're free to go. Do not debate the law, do not be rude and never resist or fail to follow a lawful order (refusing to answer questions does not equate to being uncooperative, so don't fall into that trap). Cops become very good at knowing when to be disarming and when to be commanding. In either case, if they succeed in engaging you in a friendly chat, you are at a serious disadvantage.

If you don't believe that, watch this presentation given by a former defense attorney and a police officer. To law-abiding citizens, this is eye-opening and alarming. To criminals, this knowledge could work like a get-out-of-jail-free card simply by refusing to incriminate themselves.

One video
http://www.youtube.com/watch?v=d-7o9xYp7eE

Part I - Prof. James Duane at Regent Law School, a former defense attorney, tells you why you should never agree to be interviewed by the police.
http://www.youtube.com/watch?v=i8z7NC5sgik

Part II - Officer George Bruch, an experienced military investigator and police officer from Virginia Beach, tells you why you should never agree to be interviewed by the police.
http://www.youtube.com/watch?v=08fZQWjDVKE