THE LAW: UNDERSTANDING CITIZEN-POLICE
INTERACTION
With all of
the recent events involving contact between citizen
and police. It would be
helpful for civilians to understand the
dynamics of an police encounter.
The most important thing you must understand
is that once there is a decision to arrest NO ONE MAY RESIST ARREST. Even a
police officer must comply if he is being arrested by other Law
Enforcement
Officers.
MERE SUSPICION: Officer has a gut feeling or hunch
When a
police officer first approaches you with MERE SUSPICION he may interview you to
ascertain whether you are intoxicated, conducting some illegal behavior, need
help, etc.
This is a Consensual “Voluntary” Encounter
This first
type of interaction involves the police walking up to someone on the street and
asking questions. Asking “voluntary” questions like this does not
implicate the Fourth Amendment is not considered a “search” or “seizure” under
the Constitution.
Police can
ask anyone for ID anytime and can ask to search someone’s bag anytime, without
having to have a warrant, probable cause, or even reasonable suspicion that
criminal activity is afoot.
This is
because in theory, the person can always refuse to provide
information or say no to the search and walk away. These types of
questions are allowed as long as the police don’t give the impression that you
are required to answer. For example, as long as the police don’t
make a show of force or authority.
I say “in
theory” because if a police officer in uniform approaches you and asks you a
question, it is sometimes hard to know whether you are required to respond.But
generally, if an officer walks up to you on the street without any reason to
believe you have been involved in a crime, you are not required to answer his
questions.
REASONABLE SUSPICION:
Officer suspects
that you may be involved in an illegal act or carrying a weapon. You may be
subjected to Stop & Frisk.
Under
Reasonable Suspicion police may make a “Terry
stop” (a brief investigatory stop)
This second
kind of police interaction involves a temporary
detention. Not an arrest, but you are not free to walk away.
This does require that the police have “reasonable suspicion.” It
is not considered a “seizure” but is a temporary stop that is allowed when
there is “articulable suspicion that a person has committed or is about to
commit a crime.”
In other
words, in some cases, the police can stop someone for purposes of investigating
possible criminal behavior — even when there is no probable cause to make
an arrest.
This
doctrine allows police to act when they think a crime is about to happen — they
don’t have to sit back and wait until they have probable cause to arrest.
What’s more, the police are even allowed to pat you down if they have a
“reasonable fear for his own or others’ safety” before frisking. But
in order to do a pat down, the police must have specific facts that they say
make them afraid you might have a weapon — they can’t just say they had a
hunch.
The test to
figure out whether a stop is a “seizure” (a Terry stop) or just a voluntary
consensual stop considers several factors:
If the
answer to one or more of these questions is “yes”, then the officers must prove
they had reasonable suspicion for the stop. If not, the stop is invalid
and whatever happened next could be thrown out of court.
PROBABLE CAUSE:
The officer
has found sufficient cause to ARREST you
for a crime: a misdemeanor (less than 1 year) or felony (more than 1 year). No one
may resist arrest. You must comply.
ARREST:
In order to
actually put you under arrest, the police must believe a crime has been
committed and that the person they stopped committed it.An arrest
without a warrant is constitutionally valid if the officers had
probable cause to make the arrest.
Note that
the police cannot stop you just because you have a record. Being a drug user, having a
prior DUI on your record, or having committed a crime before is not by itself
valid justification to stop you.
Likewise,
being in a high crime area is not enough to support a stop.
Further, if
you are stopped for a traffic violation, the length of the stop has to be
reasonable. Just enough time to check your license, write the ticket,
and send you on your way. An officer can’t expand the scope of the stop
beyond the purpose of writing a ticket unless there is some other information
that makes him suspicious that other crimes are happening or about to happen.
WHAT IS RESISTING ARREST?:
You don’t
have to put up a fight to be accused of Resisting Arrest. When a police officer
tells you that you are under arrest or commands you to turn around with your hand behind you
back; you are under arrest and MUST COMPLY. Pulling your hands away is
Resisting Arrest, pushing the officer away is Resisting Arrest, trying to walk
away or evade is Resisting Arrest.
IF YOU ARE ARRESTED:
Do not
resist. Resisting arrest will open the door to an escalating use of force continuum
that can spiral up to deadly force.
Try to
remain calm. Don’t exacerbate the situation by insulting, screaming, squirming,
pulling away, etc.
Once you are
arrested don’t try to talk your way out
of the arrest. Comply, don’t get too chatty either you will probably say
something you’ll be sorry you said. Remember that anything you say cam be held
against you.
It is your constitutional right to call your
attorney or ask for one to be provided. That is the best alternative. Be calm,
be quiet and get representation. When
you are being interrogated it is your right to have a lawyer present. DO NOT yield
that right.
Jeff Rae
