For many people, getting stopped by the police can be a heart-pounding encounter, whether you're stopped and frisked on the street or pulled over for speeding. Knowing your rights, along with knowing how to act with law enforcement, can help make the encounter less stressful. It can also help you avoid doing or saying anything that might incriminate you.
Your Fundamental Rights When Stopped by Law Enforcement\
You have basic rights when you're stopped by the police, regardless of your race, gender, national origin, or ethnicity. Sometimes, people hear these rights in movies and on television so often, they forget how powerful and important they can be.
- You have the right to remain silent - Per the Miranda warning the police are required to inform you about, you have the right to remain silent. This means you aren't required to answer questions or offer information beyond your name and other basic identifying information.
- You have the right to refuse a search - This includes a search of your person, your house, or your car. There are important exceptions, however, such as when the police have a warrant or they can clearly observe that you have an illegal substance or item in your possession.
- You have the right to leave - If the police haven't placed you under arrest and they haven't detained you, then you have the right to walk away. In this situation, you should calmly and politely ask the police if you're free to leave. You can also outright ask if you're under arrest, and the police are required to tell you if that is the case.
- You have the right to have a lawyer present - The police must inform you that you have the right to legal counsel. You shouldn't answer any questions beyond identifying information until you have talked with a criminal defense lawyer.
If you're stopped by the police, it's important to do your best to remain calm and polite. You shouldn't run from the police, and you should avoid any kind of confrontation, such as getting into an argument.
After any encounter with the police, you should immediately make a written record of the encounter. Human memory is a notoriously faulty thing, so don't assume you will remember all the details. Write down the officers' names and badge numbers, along with a record of your conversation. It can also help to record yourself in a video. This way, you have a record preserved as close as possible to the encounter, so you can refer back to it if needed.
What Is a Terry Stop?
Under a U.S. Supreme Court case called Terry v. Ohio, the police have the right to stop and do a brief pat-down of an individual if the officer has a reasonable suspicion that the person is engaged or about to be engaged in crime, or is dangerous or armed. The pat-down, or frisk, can only be a brief pat-down of the person's outer clothing.
The courts have ruled that police can conduct a Terry stop if they see someone who matches the description of a suspected criminal, or in cases where they have a reasonable suspicion an individual is actively committed a crime or is about to commit one. However, they can't stop you just because they think you look shady or simply don't like the look of you.
A Terry stop and frisk is supposed to be a mere pat-down. This means the police can do a brief pat-down of your outer clothing. They can't reach into your pockets or squeeze your clothing or parts of your body unless they have a good reason to think they felt a weapon.
What to Do If You Are Stopped While Driving
Traffic stops happen to just about everyone at some point. Whether you rolled through a stop sign or drove a little too fast, everyone is bound to get pulled over. Keeping your cool and knowing your rights is important.
- Police must have probable cause to stop you - The police can't arbitrarily pull anyone over. They are required to have a reason for doing so. The legal standard is "probable cause," which means they need a strong reason for thinking you have committed a violation. This can be something as basic as speeding, but they can also stop you if your car matches the description of a vehicle involved in a crime, such as a robbery.
- You must give identifying information - As with a stop on foot, you're required to provide the police at a traffic stop with identifying information. This includes your name, vehicle registration, and proof you have auto insurance.
- Police can't search your car unless they have a valid reason - The police can't do a search of your vehicle at a routine traffic stop. They can only conduct a search if they observe an illegal substance or item in your vehicle. For example, if they see drugs sitting on your front seat, they can search your car.
In general, the police are prohibited from searching your car under the Fourth Amendment, which protects against illegal searches and seizures. If the police stop you and do a search of your vehicle without your consent and without a reason, this is an illegal search, and any evidence they collect as a result of this search is likely to get thrown out of court.
However, there is an automobile exception to the standard requirement that police must have a search warrant before searching a car. This is because courts have ruled that people have a lower expectation of privacy when it comes to their vehicle versus their house. There is also a public safety component to the automobile exception, giving that someone who is speeding or drinking and driving could harm another person.
This means there are certain circumstances under which the police have a valid reason to do a search of your car:
- When you consent to a search
- When the officer has a probable cause to think there is something incriminating in your car
- When the officer has a reasonable belief they need to do a search to ensure their own safety, such as when they believe you have a weapon in the car
- When the officer has a search warrant
- When the officer has placed you under arrest and the search is incident to the arrest, such as instances when the police have seen drugs in your car and have placed you under arrest.
Should You Consent to a Search?
A police officer might ask you if they can do a search. While you can consent to the search, you have the right to say no. It's important to note that just because you don't know your rights under the law and thus give consent to a search when you probably shouldn't have, doesn't mean the court will throw out the search as being unlawful.
When a police officer asks if they can do a search, people sometimes believe this means the officer is telling them they're going to do a search and the individual doesn't have a right to refuse. This is incorrect. Under the law, you have the right to refuse a search.
In addition, people sometimes mistakenly believe that refusing a search counts as an admission of guilt. They might even consent to a search because they worry they will be considered guilty if they say no. This is not the case. Failure to give consent to a police search does not count as an admission of guilt in court. You always have a right to refuse a police search if the police are asking your permission to conduct the search.
What is Probable Cause for a Search?
An officer needs probable cause to conduct a search. This means they must possess a reasonable belief that you've committed a crime or are in the process of committing one before they do a search. For example, if they pull you over for speeding and your car smells of marijuana, the police have probable cause to think you've been smoking marijuana or that you have drugs in your car.
In addition, the police have probable cause to do a search if they see evidence of a crime in plain view. This is known as the "plain view" doctrine. If evidence is left out in the open, the police don't have to get a warrant before they can do a search. For example, if they observe a crack pipe on your front seat during a traffic stop, the evidence of drug possession is in plain view and they can do a search of your vehicle.
The plain view doctrine extends to other evidence that involves the senses, including the smell of drugs or even the sound of someone locked in a trunk. For example, if police hear thumps or voices coming from your trunk or an enclosed part of your vehicle, they have probable cause to suspect you have committed a crime and they can search these enclosed areas.
The courts have also expanded the plain view doctrine to extend to drug-sniffing dogs, which can smell around a car and indicate if they sense drugs in the vehicle.
Discuss Your Case with a Texas Criminal Defense Lawyer
If you have been stopped by the police or charged with a crime, it's important to protect your rights. Discuss your case with an experienced Texas criminal defense lawyer. Don't leave your case to chance. Defend your rights and your reputation by talking to a criminal defense lawyer as soon as possible.
Clint Broden and Mick Mickelsen are experienced criminal defense attorneys based in Dallas Texas