KISS a Cop 2

May 10, 2012

Yesterday I gave some general advice on what you should do if you are stopped by the police when you are in a vehicle.  Today I am going to discuss what you should do if you are stopped while you are on foot.  The U.S. Supreme Court has said that police have a more immediate fear of the loss or destruction of evidence if they stop a vehicle than if they stop someone walking.  Because of this fear, the Court has allowed police a little more leeway in their ability to detain a motorist than to detain a pedestrian.

FIRST THING YOU NEED TO KNOW

There are two types of police encounters; compulsory and voluntary.  A compulsory stop is when a police officer orders you to stop.  This is the typical police contact with a citizen in a vehicle.  The officer observes a traffic violation of some sort, and by turning on his red and blue lights - orders you to stop your vehicle.  A car stop can, however, turn into a voluntary stop.  As I mentioned previously, if the police officer tells a motorist that he is free to leave, but then says something to the effect of "Hey can I talk to you for a minute?" Then, the compulsory stop most likely turns into a voluntary encounter. 

A voluntary encounter is when the police asks to talk with you.  He can ask in a demanding voice, but if the words can be read as a request rather than an order, the court will most likely find that the stop is a voluntary encounter.  Most pedestrian stops are probably voluntary.  Take a situation where a police officer rides up to you on a bike while you are walking down a sidewalk.  The officer says, "Let me talk to you for a minute," or something to that effect.  This is most likely a voluntary encounter.  Remember, the court does not read inflection or emotion into the transcripts of a court document.  The words are cold letters. 

Regardless of whether you believe a police officer is asking you or ordering you to speak with him the first words out of your mouth should be, "Are you ordering me to stop and talk to you, or asking me to stop and talk to you?"  Before you say another word, you need to have that question answered by the police officer.  If he says, "Why wouldn't you want to talk to me?"  your reply should be, "Are you ordering me to stop and talk to you or asking me to stop and talk to you?"  If the officer does not answer the question again, then it is most likely that he is asking you, rather than ordering you, to stop and talk.  A court should find at that point that you are free to simply continue about your way without any further police interference.  Remember, you have the right to travel free from government interference.  In Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart said, "it is a right broadly assertable against private interference as well as governmental action. Like the right of association, ... it is a virtually unconditional personal right, guaranteed by the Constitution to us all."

If you choose to stay and answer the officers questions, however, your encounter will likely be a voluntary encounter, rather than a compulsory one.

WHY IT MATTERS

Police do not have to justify a voluntary encounter.  They are free to walk up to anyone they choose and start talking.  If that person chooses to engage the officer in conversation, then anything they say or do during that voluntary encounter will be admissible in court. 

Police do have to justify a compulsory stop.  The police must have a legitimate reason to stop and detain a person.  Furthermore, that justification only lasts as long as it would reasonably take for the officer to determine if a crime has or is being committed, and to decide whether the person they have stopped is the person who has/is committing that crime. 

GRAY MATTERS

Although the police must justify a compulsory stop, they can argue that a compulsory stop turned into a voluntary encounter.  Thus, any information gained from you after the stop became an encounter is admissible against you in court. 

It is advisable that once you have established that the officer is ordering you to stop and talk with him, the next words out of your mouth should be, "Okay, will you let me know the very moment I am free to leave?"  Make sure the officer agrees to do so.  If the officer says something to the effect of, "I am under no obligation to do that," or something to that effect, then you can be sure that he will not do so.  Thus, you should remain silent and not answer any questions.  Since the stop is compulsory, the officer is investigating you for the violation of a crime.  He does not have to read you your rights until he arrests you.  Thus, even though you are being detained, such detention is only temporary in nature, and anything you say or do will be used against you in court as a voluntary admission.

WHAT YOU HAVE TO TELL THE OFFICER

Oftentimes an officer who stops a pedestrian will ask for a driver's license or some other form of ID.  You are not under any legal obligation to show such ID to the officer.  If you are not driving a vehicle, the officer has no legal grounds to demand your driver's license.  In some jurisdictions it is your obligation to prove your identity to the officer by giving him your name and DOB, but in other jurisdictions there is no such obligation.

Generally speaking, if you do not believe you have a warrant, or are wanted by the police for some reason there is not a risk in telling the police officer your name, DOB, and/or social security number.  You are certainly free to give him your driver's license if you choose to do so, but are not necessarily under a legal obligation to do so.

SEARCHES OF PEDESTRIANS

Police who order a pedestrian to stop are legally allowed to pat down a suspect for weapons.  Officer safety is paramount to both the officer and to our society in general.  We do not want violence against officers.  They are supposed to be there to protect us.  Thus, our public policy is that we will allow police officers to run their hand along a suspects body to determine whether the suspect is armed with a weapon.  The officer must be able to instantly recognize a weapon as such in order to have the legal right to retrieve the weapon.

Sometimes officers will not pat down a suspect, but will order you to lift your shirt and empty your pockets.  The order to empty your pockets is more than a pat down search, and may constitute an actual search that requires probable cause, a warrant, or your voluntary assent to do so.  If an officer tells you to empty your pockets you should ask whether he is asking you or telling you to do so.  If he does not answer your question, then he is probably asking you to empty your pockets.  You have to make the decision as to whether you wish to show him the contents of your pockets, but if he is asking you to do so, you are under no legal obligation to comply.

PRACTICAL ADVICE

Police do not generally just walk up to pedestrians and start a conversation unless they are either investigating a crime in the area, you match the description of a suspect they are looking for, or they have a reason to suspect you have or are committing a crime.  This fact alone should give you pause to answer any police questions.

The courts make a great distinction between whether you slowly walk away or run from the police.  Running gives them an extra justification to believe that you have committed a crime and are attempting to flee.  If you choose not to talk to the police, you should never run from them.  You should politely tell them that you do not wish to talk and continue walking to your destination.  If they insist you stop and talk to them, then ask them whether they are detaining you or asking you to voluntarily talk to them.  If they refuse to answer this question, then they are asking you to voluntarily talk to them.  If you do not wish to do so, then continue on your journey.  If they decide to turn the encounter into a compulsory encounter, then you are under investigation and you should give the officer your name and date of birth, then remain silent. 

You do not have to explain yourself, or your reasons for remaining silent.  Simply remain silent.  The psychological pressure to answer questions is intense.  If you have decided, however, to remain silent you must overcome that temptation and remain silent.  If you decide to call me for legal advice, you should tell the officer that you are going to retrieve your cell phone and contact an attorney before you attempt to do so.  If the officer instructs you not to do so, then you have further evidence that your encounter is not a voluntary encounter, but a compulsory one. 

If you have any questions about what I have written here, please leave them in the comment section below and I will attempt to answer your questions.

REMEMBER:  The discussion on this blog is intended as educational information, not legal advice.  If you are under investigation by the police you should retain me as your attorney before talking to the police.  It is only after I have all of the information that I can give you advice for your particular situation.