YOUR RIGHTS WHEN THE POLICE STOP AND QUESTION YOU
If a police officer stops you in a public place and begins asking you questions, what rights do you have?
(Note that this post does not apply to a DUI stop. For information on your rights if you are stopped for a suspected DUI, see my DUI blog. )
Did you know that the police are permitted to stop and question you, even request to search you or your belongings, without a reasonable suspicion that you have committed a crime? As long as the officer does not suggest that you are compelled to cooperate with the request, the officer is within his or her legal rights to make these requests. And you are within your legal rights to just walk away if the officer has not indicated that there is a reasonable suspicion that you have committed a crime. (United States v. Drayton, 536 U.S. 194 (2002).)
In real life, most people are intimidated and scared when an officer questions them and they want to cooperate. They are (and not without justification) worried that if they don’t cooperate, they will anger the officer and find themselves on the wrong side of the law, even if they are innocent of any wrong-doing. The best way to assert your right is to politely ask the officer if you are free to leave. If the officer tells you that you are not, you must assume that the officer has some reasonable suspicion that you committed a crime. In that case, do not walk away because even if you have done nothing wrong, you might find yourself charged with resisting arrest.
So, let’s say the officer tells you that you are not free to leave, what next?
There is some debate as to whether you must provide an officer with identification but most defense attorneys will tell you that you should provide your name and address when asked by the officer and produce identification if asked. If you are stopped while driving, you must produce your driver license. Other than that, you have the absolute right to remain silent, and you should. The best way to accomplish that is to politely tell the officer that you wish to remain silent. If the officer continues questioning, just repeat that you wish to remain silent. Say no more than that.
Now you might worry that by refusing to answer questions, you will ensure your arrest. Actually, the officer must have probable cause to believe you committed a crime before they can arrest you. If the officer saw you commit a crime, that will satisfy the probable cause requirement. If the officer did not see you commit a crime, then he or she must base probable cause on objective circumstances that would lead a reasonable person to believe you committed the crime. For example, if a there was a report that someone just assaulted a person with a hammer and you are seen running in the area with a bloody hammer in your hand, that is probable cause to arrest you.
But do you see why it is smarter to remain silent. If there is probable cause to arrest you even if you are innocent, trying to protest your innocence could actually lead to statements that could work against you. The police cannot arrest you just because you invoked your right to remain silent.
In my next post, I will continue to discuss your rights during a police detention.
William Weinberg is an experienced criminal defense attorney. If you have any questions regarding your criminal defense matter, please feel free to contact him to set up a confidential consultation without charge at ww.bill@williamweinberg.com or (949) 474-8008.