What are your rights during and after a police encounter?
We’ve all done it: looked down nervously at our speedometer when we see an officer on the roadway behind us, or panicked slightly when an officer actually pulls us over. Did you know that your legal rights changed based on the level of interaction a police officer has with you? Did you know, that unlike what you see on TV, an officer does not have to read you your Miranda Rights when he is arresting you?
On one hand we are taught to respect officers and you’re torn between complying with their requests and protecting your own interests. So what should you do if the police make contact with you? Having watched literally thousands of police stops and encounters throughout my career as a prosecutor and now as a criminal defense attorney, here are some basic tips that should help you understand your rights during and after a police encounter.
Before we get started, remember that you can protect your rights in nearly every situation while remaining polite and courteous to the officer. The officer has a job to do, but remember in most circumstances it is not his job to tell you what rights you have, and it is never his job to tell you how to best exercise your rights.
What rights you have depend on the level of contact the officer has made with you. Below is a summary of the level of contact an officer can make with you and how your rights change with each level.
I. Ask if You are Free to Leave.
Consensual Encounter (Q: Am I free to leave? A: Yes.)
- Consensual encounters are just that. An officer walks up to you and starts talking. He may ask you questions. Most people don’t realize that an officer will never tell you that he’s making a “consensual encounter” with you. Most people see an officer in a uniform with a gun and a badge, and they answer questions. Instead, ask if you are free to go.
- To determine if the interaction is a “consensual encounter,” ask if you are free to leave.
- If the answer is “yes,” walk away.
- If the officer says, “no” and that you are not free to leave, ask if you are being arrested or detained.
Detention (Q: Am I free to leave? A: No.)
- The officer must have Reasonable Suspicion to make a lawful detention.
- “Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.”
- You do not have to answer questions, so don’t.
- Remember the officer has a job to do. He can do that job without your confession. Answering questions does not make the officer believe you have “nothing to hide.” Not answering questions is not a sign of guilt. (But be sure to follow the next step.)
- Speak up to exercise your right to remain silent.
- This is counter-intuitive. You shouldn’t just remain silent. Tell the officer that you are exercising your right to remain silent.
- You do not have a constitutional right to consult with an attorney at this point. You can still ask for one as you are invoking your right to remain silent.
- In Texas, you do not have to identify yourself if you are being detained. (If you are in a vehicle, you do have to show the officer your license.)
- An officer may at this point ask you to step out of your vehicle for officer safety.
- An officer may pat you down for officer safety.
- Remember to be polite. Remember the officer is concerned for his own safety as well. Keep your hands where the officer can see them. Do not step out of the vehicle unless you are asked to do so.
II. Speak up to Remain Silent. Ask for an Attorney.
Arrest (Miranda does not apply.)
- The officer must have Probable Cause to make a lawful arrest.
- “Probable cause for an arrest exists where, at that moment, facts and circumstances within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, would warrant a reasonably prudent person in believing that a particular person has committed or is committing a crime.”
- You do not have to answer questions, so don’t.
- Miranda is not required to be read to you if you are merely arrested and not questioned.
- You must identify yourself if you are arrested.
- After identifying yourself, tell the officer that you are exercising your right to remain silent
- An officer can arrest a person for any offense
- An officer may search your person after you have been arrested.
Arrest + Questioning (Miranda applies.)
- Miranda applies and you must be informed of your rights.
- If you have been arrested and are questioned, you do have a right to an attorney under the 5th Amendment. Ask for your attorney.
- Remain silent. Speak up to exercise your right to remain silent.
- In Texas, this is the first time you are required to identify yourself.
- A detective or police officer may want to speak with you after you are arrested. Mike from Just Call Saul demonstrates how to respond to police interrogation before or after an arrest:
- It’s worth pointing out detectives often invite suspects down to the police station to come in on their own and give the police “their side of the story.” This is a ploy used to get a confession or corroborating evidence out of you. The detectives know if you come down voluntarily, you have made a consensual encounter with the police and they don’t have to tell you that you have a right to a criminal defense attorney or a right to remain silent. They may even have an arrest warrant already signed and chose not to arrest you at that time. Because the standard for arrest (probable cause) is set so low, I have never seen an individual talk themselves out of an arrest without the assistance and advice of an attorney.
- You will be processed into police custody.
- You must identify yourself.
- You have a right to an attorney under the 5th Amendment.
- Texas Administrative Code Section 291.1 provides the ability to make two completed phone calls immediately after booking.
III. Getting Out of Jail if You Are Arrested.
- The magistrate will inform you of the charges against you and set a bail amount.
- Continue to exercise your right to remain silent in regards to any allegation against you.
- You now have a right to an attorney both under the 5th Amendment and 6th Amendment.
- In Texas, within 48 hours of arrest, the arrestee must be taken in front of a magistrate who must inform the arrestee of the accusation against them and inform them of their right to an attorney under the Sixth Amendment of United States.
- Once the bond has been set, you may bond out.
- If you post a cash bond, and pay the entire bond amount, you will receive your cash bond back from the court upon final resolution of your case.
- If you use a bondsman, you will pay a non-refundable fee to get bonded out. This fee is generally between 10 and 20% of the bond amount.
Contact a Criminal Defense Lawyer
- If you have not called a lawyer yet, you should either call a criminal defense attorney or have a family member call a criminal defense attorney immediately. An experienced criminal defense attorney can guide you through the process and defend you through the criminal process.