Are you asking or telling?

May 21, 2012

If you are walking along the sidewalk and a police officer pulls up and calls out to you, "Hey you, come here and talk to me for a minute?"  Do you know how to answer him?  If not, you should learn.  The very next thing you do could make the difference between you spending the night in jail or spending the night in your own bed.

Recently I had someone ask me if they have to talk to the police.  The answer to that - as with most things in law - is "It Depends!"  Criminal cases hinge on facts.  One fact can make or break the State's case, or your defense.  Let's change the facts of the scenario above slightly to highlight what I mean.  Let's say you're driving down the street and you see a cop standing on the side of the road and he is pointing at you with his right hand and pointing at the shoulder of the road with his left hand.  He then begins moving his right hand to his left hand.  Would you consider that an order or a request? 

Generally speaking you do not have to do anything a police officer ASKS you to do, but you do have to do what the TELL you to do.  If you do what they ask you are said to have consented to do so.  If you do what they tell you to do you are said to have complied with what they instructed you to do.  The difference lies in the power We The People give our government.

The police are not supposed to order citizens around without a justifiable reason, but they can ask a citizen to do anything that any other citizen can ask you to do.  If some guy you don't know walks up to you in a store and says, "Let me see what's in your pockets, will ya?"  You're probably going to tell him to take a hike.  Yet, if a police officer does the exact same thing people feel as if they are being instructed to do so, and comply because we have all been taught to do what the cops tell us to do. 

So, what's the answer to each of the above scenarios?  Knowing only the information that has been provided both of these are likely an order.  In the first case the officer did not phrase his statement with a request.  He didn't say, "Would you mind? Will ya? Do you mind?" The State, however, would likely argue that it was a request and the officer did not need a legal basis to stop you because you consented to his request.  The second case is a little more clear cut.  The big fact in that case is that the officer was standing on the shoulder, not in the roadway itself.  If he was standing in the roadway then he most likely would have been acting under color of law because it's illegal (in most areas) to stand in the roadway and block traffic.  He is creating an obstruction to your safe passage.  Since, however, he was on the shoulder the State could argue that he was in a place that all citizens have the right to be, doing something that all citizens have the right to do - request people pull over and talk to them.  I think most courts would find that the second case is a clear case of the officer instructing you to pull over instead of requesting you do so.  Don't ever underestimate, however, that if the other facts of the case were severe enough - say the police found a dead body in his trunk - they would torture legal logic and reason to conclude that it was a request.

Have you had a situation where the police asked or ordered you to do something where you questioned whether they had that authority?  Tell us about it in the comments below and we will try to answer your questions.