Police Encounter FAQs

SEARCHES

1. With a warrant
2. Without a warrant
3. Exceptions to warrant
4. If they do have a warrant, what to do.
5.  I am searched (but not arrested) – what to do
6. If your home is searched
7. What to do during a search?
8. Searches (With or Without a Warrant)
9. Why refuse if nothing to hide?
10. 3rd party consent
11. Passengers

MYTHS

1. FAQ
2. Do the police have to show ID?
3. No Miranda – case dismissed! Right?
4. When will I see a Judge?
5. When do I have to exit my vehicle? What rights do I have if this occurs?
6. Why is talking a bad idea? Isn’t their job to protect and serve?
7. Why should I refuse if I have nothing to hide? If I have done nothing wrong and I have nothing illegal in my possession, why should I not consent?
8. If they say when talking to me they will go “easy” on me if I talk and be compliant?
9. If I am asked to come down to the station (even if I have no idea what for)?
10. Isn’t refusing to cooperate, to answer questions, and not being compliant with the police officer an admission of guilt?
11. Can I film/record the encounter?
12. Do I need an attorney?
13. What do I do if I am issued a subpoena?
14. If I called the police and someone was arrested, can I then call and request the charges to be dropped?
15. What happens if I say no to the police (when asked questions, when asked if they can search, when asked if I will do the sobriety tests)?
16. What should I do if the police are called, either by someone involved or an individual such as a neighbor, during a domestic dispute/argument?

VII. TIPS/MISTAKES

• What are some common ways to be arrested? What types of crimes?
• If arrested, resisting easiest for them to make up
• What do I do during a search?
• What if I am issued a subpoena? Do I have to appear at court?
• The Golden Rules
• Get expunged/sealed if possible
• Don’t lend a car
• Watch computer
• If you insist on doing illegal things, like consuming recreational marijuana, then follow these rules…
• Fed system different
• Prescription medication
• Weapons

IF ARRESTED – DO NOT

• Throw things away
• Obstruct/resist
• No jail phone calls

What to do during a search of you, your car, or your home "If you don't answer my questions, I'll have no choice but to arrest you. Do you want to go to jail?"  (They will arrest you either way.) "You're not a suspect - just help us understand what happened here and then you can go."  (They will arrest you after you talk.) "If you don't answer my questions, I'm going to charge you with resisting arrest." (They will arrest you either way) "All of your friends have cooperated and we let them go home. You're the only one left." (They will arrest you either way.) "You are just here voluntarily and we appreciate you helping us with this. You are free to leave at any time." (If you try to leave, they arrest you.) I recently heard Professor James J. Duane talk about the perils of talking to the police. He was accompanied by a former police officer. This is some of what he had to say in my continuing education program

You do not have to go with a police officer unless you are arrested, but there is a law which states you must go with them if you have witnessed a breach of the peace. The police can arrest you to question you if they believe that you have broken or are breaking the law. If you are arrested for questioning you still do not have to answer any questions except to give your correct name, address, and age.

No. If you are arrested, you do not have to answer any questions or volunteer any information. Ask for a lawyer right away. Repeat this request to every officer who tries to talk to or question you. You should always talk to a lawyer before you decide to answer any questions. According to the Justice Robert Jackson, Nuremberg Prosecutor, Supreme Court Justice: "Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances." Watts v. Indiana, 338 U.S. 49

Types Of Things The Police Might Tell You To Get You To Talk To Them:

• "If you don't answer my questions, I'll have no choice but to arrest you. Do you want to go to jail?"  (They will arrest you either way.)
• "You're not a suspect - just help us understand what happened here and then you can go."  (They will arrest you after you talk.)
• "If you don't answer my questions, I'm going to charge you with resisting arrest." (They will arrest you either way)
• "All of your friends have cooperated and we let them go home. You're the only one left." (They will arrest you either way.)
• "You are just here voluntarily and we appreciate you helping us with this. You are free to leave at any time." (If you try to leave, they arrest you.)

I recently heard Professor James J. Duane talk about the perils of talking to the police. He was accompanied by a former police officer. This is some of what he had to say in my continuing education program. Cops are sneaky and there are lots of ways they can trick you into talking. They are allowed, even trained, to lie to you. Here are some cons they'll pull: Good Cop/ Bad Cop: Bad cop is aggressive and menacing, while a good cop is nice, friendly, and familiar (usually good cop is the same race and gender as you). The idea is bad cop scares you so bad you are desperately looking for a friend. A good cop is that friend until you are done talking. The cops will tell you that your friends ratted on you so that you will snitch on them. Meanwhile, they tell your friends the same thing. If anyone breaks and talks, you all go down. The cops will tell you that they have all the evidence they need to convict you and that if you "take responsibility" and confess the judge will be impressed by your honesty and go easy on you. What they really mean is: "we don't have enough evidence yet, please confess." The cops may show you something and claim it is your fingerprints, or tell you they have your fingerprints. The cops may tell you that they have you on video committing a crime. There may or may not be a video. It may or may not be someone who looks like you. Even if the cop questioning you is completely honest, he/she is human and hears what he or she expects to hear. Jail is a very isolating and intimidating place. It is really easy to believe what the cops tell you. Insist upon speaking with a lawyer before you answer any questions or sign anything.

You are within your rights to record an encounter with the police and in my opinion, you should. You can't obstruct their investigation, but recoding them can make them go through the right protocol because it’s no longer your word against theirs. In all police encounters, be polite, even when you're invoking your rights. It may mean the difference between a mere traffic ticket and a misdemeanor charge. When in outdoor public spaces where you are legally present, you have the right to capture any image that is in plain view. That includes pictures and videos of federal buildings, transportation facilities (including airports), and police officers.

• When you are on private property, the property owner sets the rules about the taking of photographs or videos. If you disobey property owners' rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
• Police should not order you to stop taking pictures or video. Under no circumstances should they demand that you delete your photographs or video.
• Police officers may order citizens to cease activities that are truly interfering with legitimate law enforcement operations. In general, a court will trust an officer's judgment about what is "interfering" more than yours. So if an officer orders you to stand back, do so.
• If the officer says he/she will arrest you if you continue to use your camera, in most circumstances it is better to put the camera away and call the ACLU(American Civil Liberties Union) for help, rather than risking arrest.
• Police officers may not generally confiscate or demand to view your photographs or video without a warrant. If you are arrested, the contents of your phone may be scrutinized by the police, although their constitutional power to do so remains unsettled. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves.

Using a Video Recorder (Including Cell Phones) With Audio Capacity

• You have a right to capture images in public places, but you don't always have a right to record what people say.
• You have the right to videotape and audiotape police officers performing official duties in public. That means you can record an officer during a traffic stop, during an interrogation, or while he or she is making an arrest.
• You can record people protesting or giving speeches in public.

If You Are Stopped or Detained for Taking Photographs or Videos

• Always remain polite and never physically resist a police officer.
• If stopped for photography, ask if you are free to go. If the officer says no, then you are being detained, something an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
• If you are detained, politely state that you believe you have the right to take pictures or video and that you do not consent to the officer looking through or deleting anything on your camera. But if the officer reaches for your camera or phone, do not resist. Simply repeat that you do not consent to any search or seizure. You don't want to invite a charge for "resisting arrest."

If I'm not doing anything illegal, why shouldn't I let the police search me? The sad fact is that most people believe that they are under some kind of obligation to acquiesce when an officer contacts them and asks permission to search them or their belongings. The truth is the exact opposite: You have a right to associate with and speak to whomever you please. In this respect, there is nothing special about a police officer. Assuming you would not let a complete stranger look through your purse or search your pockets, why would you allow a police officer to do so? -- Especially if you're not doing anything illegal!!! Just say "NO" to unwarranted searches!

No. If a police officer asks your permission to search, you are under no obligation to consent. The main reason why officers ask is that they don't have enough evidence to search without your consent. If you consent to a search request you give up one of the most important constitutional rights you have -- your Fourth Amendment protection against unreasonable searches and seizures. A majority of avoidable police searches occur because citizens naively waive their Fourth Amendment rights by consenting to warrantless searches. As a general rule, if a person consents to a warrantless search, the search automatically becomes legal. Consequently, whatever an officer finds during such a search can be used to convict the person. Don't expect a police officer to tell you about your right not to consent. Police officers are not required by law to inform you of your rights before asking you to consent to a search. In addition, police are prepared to use their authority to get people to consent to searches, and most people are predisposed to comply with any request an officer makes. For example, the average motorist stopped by an officer who asks them, "Would you mind if I search your vehicle, please?" will probably consent to the officer's search without realizing that they have every right to deny the request. If for any reason you don't want the officer digging through your belongings, you should refuse to consent by saying something like, "Yes, I do mind. I have private, personal items in my [car, backpack, etc.] and do not want you looking through them." If the officer still proceeds to search you and find illegal contraband, your attorney can argue that the contraband was discovered through an illegal search and should be thrown out of court. You should never hesitate to assert your constitutional rights. Just say "NO!"

Unfortunately, many people get fooled by some version of this commonly used police officer's line: "Everything will be easier if you just cooperate". That's true to some extent -- it will make things much easier for the police officer who's trying to arrest you! But when it comes to you consenting to searches and answering incriminating questions, it couldn't be further from the truth. Remember, police will lie to you in order to get their way. Police are under no obligation to follow through on their promises, even if you hold up your end of the bargain by cooperating. Cooperating only increases the chances that you will incriminate yourself while having no effect on criminal sanctions. One thing is certain -- cooperating with someone who is trying to arrest you... just might get you arrested!

Article 15.17 of the Texas Code of Criminal Procedure states how a police officer who makes an arrest or who has custody of an arrested person shall “unnecessary delay, but no later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or if it is more expeditious, to a magistrate in any other county of this state. In effect then, even if you are not allowed to speak to an attorney after invoking the request to have one present, you should see a magistrate within 48 hours of the arrest. Generally speaking, the magistrate will then inform the individual of many of the rights that are enervated in the common Miranda warnings seen on TV, such as the right to counsel, how a lawyer will be appointed if the person is deemed to be indigent, they will inform them of the nature of the charge and accusation against them, etc.

No. If you're arrested, don't rely on the police to inform you of your right to remain silent and see a lawyer. It's up to you to assert those rights. Tell them "I'm exercising my right to remain silent and I would like to see a lawyer." If police persist in questioning you, repeat those magic words. The courts have made it clear that police officers do not have to tell people that they can refuse to consent to a warrantless search. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid. Many people believe that an officer must automatically read a person his or her Miranda rights as part of performing an arrest, either immediately before or immediately after an arrest is made. This is absolute fiction. The truth is that the only time an officer must read a person his or her Miranda rights is when: (1) the person has been taken into custody, AND (2) the officer is about to question the person about a crime. Police officers are often pretty tricky about trying to get someone's consent to a search. They know that most people feel intimidated by police officers and are predisposed to comply with any request the police officer may make. For example, the average motorist stopped by a police officer who asks, "Would you mind opening the trunk, please?" will probably consent to the officer's search without realizing that they have every right to deny the officer's request. Many people believe that they can "beat the case" if the officer doesn't read them their Miranda rights during an arrest. This is a myth. The only time an officer must read a person his or her Miranda rights is when: (1) the person has been placed under arrest, AND (2) the officer is about to question the person about a crime. For example, if you're placed under arrest after consenting to a search request and confessing to ownership of found contraband, police do not need to read you your rights unless they want to question you about an unrelated crime. The courts have made clear that police do not have to tell you about your right to refuse searches. Also, despite the myth to the contrary, an officer does not need to get your consent in writing; oral consent is completely valid. If you're arrested, don't rely on the police to inform you of your right to remain silent and see a lawyer. Use the magic words "I'm going to remain silent. I would like to see a lawyer." If police persist in questioning you, repeat the magic words. The magic words are like a legal condom. They're your best protection if you're under arrest. Remember that anything you say can and will be used against you in court. So don't try to talk yourself out of the situation, and don't make small talk with police either.

In any police encounter, the number one rule is not to give statements. The more you talk, the worse it's going to be for you. I can't tell you how many cases I've handled where people have talked their way into a conviction, especially in a DWI case. Some say that fish are caught only because they opened their mouths, so keep your mouth shut. If an officer asks if you know why he pulled you over, you shouldn't guess. You should say no and let them articulate what the reason was for pulling you over. If they get you out of the vehicle, which they're legally entitled to do, and you feel like that they are about to conduct an investigation for DWI by doing the sobriety tests, you should refuse. It’s not a bad idea to ask the officer to clarify what the reason was for pulling you over. He doesn’t have to answer you but if he does and answers inconsistently, it could help your case.