Types Of Law Enforcement Encounters
There are three different types of law enforcement encounters: 1) A Consensual Encounter; 2) A Detention; 3) An Arrest.
The first way one may interact with the police would be something termed a consensual encounter. It is viewed as a voluntary encounter because in theory, because it is consensual in nature they can be ended at any time. Police officers are just as free to go up to someone in the general public and start talking to them. However, you are free to ignore that officer, just as you are free to ignore anyone who approaches you in a public place.
Simply put, just as any other citizen is free to go up to another individual and engage in a conversation, the same is true of a police officer. However, just as with any other private citizen, during a consensual encounter one is free to ignore the police officer.
During a consensual encounter, an individual has the right to just simply walk away, to not identify themselves, and one can even directly tell a police officer that they do not want to speak to them. A consensual encounter does not require any level of proof, such as reasonable suspicion or probable cause. A consensual encounter is simply a police officer approaching an individual in public and attempting to speak with them about a certain matter. Police officers are just as free to go up to someone in the general public and start talking to them as anyone else. However, one is also free to ignore the police officer, just as one would be free to ignore anyone who approaches you in a public place.
A consensual encounter occurs would be if an individual is approached by a police officer who initiates conversation, and does not outwardly involve any show of force or authority, such as direct police commands, any form of force, or lights and sirens. For a consensual encounter to take place – there not need be any evidence or suspicion of a crime that has been or will occur. During a consensual encounter, an individual has the right to just simply walk away, to not identify themselves, and one can even directly tell a police officer that they do not want to speak to them.
However, there is a fine line distinguishing when one can exercise their right to ignore a police officer and walk away, or if the encounter is indeed detention. Ultimately, the best way to determine if a police officer is conducting a consensual encounter (or instead is conducting an investigatory stop or detention) is whether a reasonable person would not feel free to leave. Thus, if there is any ambiguity in this regard, one should simply ask the question if they are free to leave and go on their way. Often, however, individuals sometimes feel as if they are forced to acquiesce and feel compelled to stay, especially if the police officer is asking the person questions in a forceful manner, or in situations where there may be several other officers surrounding the individual. Again, simply put – when in doubt simply ask the officer, “Am I free to leave?” The bottom line is this, even without suspicion of wrongdoing, a police officer has the ability and is free to approach an individual and try to begin to strike up a conversation just like anyone else could.
Detention (Or Terry Stop)
The difference between a consensual encounter and investigative detention (and ultimately also an arrest) is very important to be able to differentiate because an individual’s rights drastically change with each. Detention is by far the most common way people encounter law enforcement, and it is usually during routine traffic stops. When an individual is pulled over for a traffic violation, it is classified as detention. A consensual encounter can turn into detention, or an investigatory stop, if an officer shows authority in a manner that restrains the individual’s freedom of movement such that a reasonable person would feel compelled to comply.
With detention, the police only need to have reasonable suspicion to stop (or to detain) an individual. Reasonable suspicion is defined as the legal threshold that is less than probable cause (which is needed to effectuate an arrest or for the issuance of a warrant), but also must be based on something that is more than just a “suspicion” or a “hunch”. The United States Supreme Court in the landmark case Terry v. Ohio described reasonable suspicion as something more than simply an “inchoate and un-particularized suspicion or hunch” and must be based on “specific and articulable facts” to suspect a person has been, is, or is about to be engaged in criminal activity. Reasonable suspicion means that there were objectively reasonable evidence or circumstances to suspect and believe that an individual was involved in, or was about to be involved in a crime.
If you are detained, you are not free to leave. This timeframe can vary depending upon the state or jurisdiction and/or based on the circumstances, but the United States Supreme Court has held that 20 minutes or so is a reasonable timeframe for detaining someone. In other words, a police officer cannot prolong detention longer than necessary to try and develop the requisite level of probable cause to make an arrest or to effectuate a search. If you are not detained, you are free to ignore the police as you would anyone else. In detention, you have to comply with just two things. If you are on foot, you have to comply with giving your name to identify yourself. If you refuse or give a false name, you can be charged with failure to ID. If you’re in your vehicle and you are pulled over, you should roll down your window just enough and give your ID, your registration, and your insurance card.
Detention can become an arrest if certain factors come into play. To arrest an individual, law enforcement officers need to have probable cause. Probable cause to arrest an individual means that there is sufficient evidence to believe a person committed or is in the process of committing a crime. However, there can be a distinction between when someone actually knows they are being arrested, or if they possibly are behind held as a “custodial arrest.” A “custodial” arrest would be a situation most typically thought of when people think about being arrested by the police. The term “custodial” refers to the suspect being in custody. This situation would be where a person is placed in handcuffs, detained, and taken to jail. It doesn’t necessarily mean handcuffs. Usually, it means in some form or fashion a law enforcement official has deprived an individual of their freedom of action in some significant way. However, a person could be under “custodial” arrest given certain factors which may exist, but may not be aware of the situation.
Legally speaking an arrest actually occurs if a person is being questioned by a police officer and feels that they are not free to leave. If you are not free to leave (if either you are verbally expressed this or if it is clear based on the situation), then it is an arrest (even if they technically haven’t booked you in yet or read you Miranda rights). An arrest can occur without an individual technically being arrested. Texas has somewhat of a higher standard than some other states for what actually constitutes an arrest. Texas law states that when an arrest occurs, some freedom of movement has to occur.
Even if you’re not under arrest, sometimes in a DWI stop, police will get you out of the car and put you in handcuffs. If this occurs (because there is a restriction on the freedom of movement), then a legal arrest has occurred and it is no longer detention. There is a significant difference between arrest and detention. If a proper custodial arrest has occurred and an individual has not been properly read their Miranda rights, anything said subsequent to the arrest (and before the Miranda rights are read) would not be admissible later at trial.
- Common Police Encounters
There are 3 main ways that individuals usually encounter police:
- ON FOOT (USUALLY ON THE STREET);
- IN THEIR VEHICLE OR CAR (THE MOST COMMON WAY FOR THE AVERAGE CITIZEN);
- INSIDE THE HOME (OR RESIDENCE).
Police Encounters – On Foot
As stated previously, an officer is a free as any other citizen to conduct a “consensual encounter” on the street and approach a person to engage in a conversation, just the same as another individual may freely do. However, if one feels this is the case, they would be free to ignore any questions posed to them by the police officer (the same as you would be able to with any other person who approaches on the street and tries to initiate a conversation). However, if a police officer has the requisite level of reasonable suspicion that one may have been involved in a crime (which has to be based on more than a mere hunch), they can initiate lawful detention to investigate further.
If a police officer initiates detention, on foot they are legally permitted to conduct what is commonly referred to as a “Terry” frisk of a person. A “Terry” frisk is a general pat-down of a person for the safety of the officer to ensure a person may not have any weapons that could pose a danger and is only justified as a protective search for weapons. If this is conducted – DO NOT RESIST. However, still, clearly, communicate verbally that YOU DO NOT CONSENT TO ANY SEARCH OF OUR PERSON OR PROPERTY. If the police officer goes beyond what is proper and reaches into a pocket, for example, and pulls out a piece of paper, it would likely be deemed an illegal search because this would be outside the permissible scope of the “Terry” pat-down.
If a police officer does conduct an arrest or places an individual in handcuffs, do not resist, argue, or attempt to run away to avoid the encounter. If the police officer asks a question, the only answer a person legally has to give is their legal name. If they persist further with questions, but they have not communicated that one is under arrest, the person should ask if they are free to leave. If the police officer says yes – then simply leave and walk away. If they instead state that one is NOT free to leave – then one should then ask if they are under arrest. If the police officers answers no, they are not under arrest – then it should be communicated back how they do not want to answer any questions, and inquire as to the reason for the detention. If they are unclear about whether it is a “consensual encounter” or is a “detention” – one should simply ask what the nature of the encounter is. If it is a “consensual encounter” – a person is well within their rights to walk away and cease any further interaction.
If the police officer indicates it is detention based on reasonable suspicion, request permission to leave once the reason for the detention is completed. If it is communicated that you are under arrest, immediately invoke your right to remain silent and request to have an attorney present and be absolutely clear that you refuse to any answer any questions until you are afforded your right to legal counsel. In detention, you have to comply with just two things. If you are on foot, you have to comply with giving your name to identify yourself. If you refuse or give a false name, you can be charged with failure to ID. If you’re in your vehicle and you are pulled over, you should roll down your window just enough and give your ID, your registration, and your insurance card.
If You Are Stopped For Questioning On The Street
- Stay calm, remain polite, and try to be as cool and collected as possible throughout the encounter.
- Do not attempt to run, evade, or otherwise try to elude the encounter if it is clear a law enforcement officer is attempting to initiate lawful detention.
- Do not try to run away if you are approached on the street. If you are unclear if it is a consensual encounter or investigative detention, just ask.
- Make no attempts to resist, obstruct their investigation, or argue about the details of the incident during the encounter. Trust me – it is a fruitless endeavor to try and do so. Even if you are indeed innocent of whatever they may try to charge or cite you with, and even if you believe they are clearly violating your rights. You can deal with this later – trying to sort all this out during the encounter is a terrible idea.
- Always keep your hands where the police can visibly see them making them plainly visible on the street. Always avoid putting your hands in your pockets, police officers initial reaction is always to believe it is to reach for a weapon. Always try to remember to keep your hands where police can see them.
- If you are not under arrest and the encounter is taking longer than you think is necessary, ask if you are free to leave. They indicate that you are, simply in a calmly and silent fashion just walks away. If they convey you are under arrest, you have the legal right to inquire for what reason and under what authority. However, even if you disagree with their answer to this, still remain acquiescent and docile, and comply with whatever request or demand they give you.
- You have the right to remain silent, and once you clearly exercise you wish to make the request, make sure you do so verbally and out loud, and as a result, all questions should cease. Likewise, you cannot be punished for refusing to answer questions when exercising your right to
- In most states, you must comply with at least giving your actual legal name to a police officer when they request it. There is no reason to try and avoid this or fight this battle, simply identify yourself properly if asked.
- You have the right to NOT consent to ALL search requests, whether it be on your person (or clothing), your belongings, or anywhere and anything else you may have control over. ALWAYS AVOID GIVING VOLUNTARY CONSENT.
- A police officer is legally allowed to conduct a Terry “pat down” or “frisk” of your clothing if they suspect you may be carrying a weapon. If this is done, it is imperative that you DO NOT try to physically resist. However, you also can try to make sure they do not exceed the scope of this basic pat-down of your outer clothing, and you also should remember if they try to search any further, you have the absolute right to refuse consent of anything or anywhere else. If you do consent, it negates the necessity of them having the requirement of procuring a search warrant. NEVER CONSENT.
In Your Vehicle
Easily the most common way to encounter the police is when a person encounters the police usually during routine traffic stops. Unfortunately, most people do not know their rights even when dealing with the police even during these encounters, which result in many making mistakes during the encounter that could have otherwise been avoided.
I also wanted to make absolutely clear how if a police officer observes ANY traffic violation when someone is driving a vehicle, and they initiate a traffic stop (this can be in a marked or unmarked vehicle), a person ABSOLUTELY MUST STOP. Technically speaking, when an officer observes an infraction when someone is driving, it is a criminal offense (most likely a class C misdemeanor traffic violation).
It is advisable also to stop as soon as possible, in order to possibly not commit another traffic violation, to avoid the police officer observing it and possibly providing this as justification for the traffic stop (their initial reason for the traffic stop may have been unfounded or based on mistake). A routine traffic stop is classified as a “detention” (and not a “consensual encounter”), and thus, one is not free to avoid having to interact with the police to avoid this encounter. It is imperative that an individual must always comply. As discussed previously with “consensual encounters” on foot, an officer is as free as anyone else to approach someone and ask questions. If this occurs, an individual is as free to ignore the officer and walk away as they would be if it were anyone else. THIS DOES NOT APPLY, HOWEVER, TO TRAFFIC STOPS IN VEHICLES. During a traffic stop, the only information a person has to give is their legal name (and this can be done simply by just giving them a driver’s license), proof of insurance, and registration.
Thus, you are not free to avoid having to interact with the police who initiates the traffic stop. I told you that on foot, an officer is as free as anyone else to approach someone and ask questions. This would be classified as a “consensual encounter,” and when this occurs, an individual is as free to ignore the officer and walk away as they would be if it were anyone else. THIS DOES NOT APPLY, HOWEVER, TO TRAFFIC STOPS IN VEHICLES. Technically speaking, when an officer observes an infraction when someone is driving, it is a criminal offense (most likely a class C misdemeanor traffic violation). This is rooted in reasonable suspicion, but this encounter is still a “detention.” The officer is justified to make the traffic stop, and a person has to pull over and comply. The only information they have to give, however, is their name (this can be done simply by giving them a driver’s license), proof of insurance, and registration.
The police can initiate a traffic stop for any number of reasons. An individual should pull over immediately and safely to the side of the road, and preferably into a private parking lot. After pulling over, turn your car off, take your keys out of the ignition, place them on the dashboard, and then wait for them to approach. Make sure there is nothing in “plain-view” that can be seen anywhere in the vehicle that could be construed as contraband or illegal. If they do see something of this nature, it would give automatic probable cause to search the vehicle. It is a good idea to have the driver’s license, proof of insurance, and registration ready when they approach the vehicle, and simply give these documents by rolling down the window enough so you can make sure they can properly take possession of them. After this, one should then simply place their hands on the steering wheel and say nothing else whatsoever. If asked why you were pulled over, DO NOT GUESS. Often, if they do not already possess the requisite reasonable suspicion to conduct the traffic stop at this point, whatever guess you may state may possibly provide an additional reason to justify the detention. One is only required to give the identifying information listed above, such as the full legal name and required documents indicating your legal ability to operate a motor vehicle.
If the police officer requests that a person step from your vehicle then always comply with this request. However, remember to always exercise your rights, including saying as little as possible to avoid making any incriminating statements. Do not consent to any search of your vehicle, your person, or anything else – even if you feel you have nothing to hide. There are no repercussions for you in refusing to consent to a search of your vehicle. If they have probable cause to search, do not resist or argue when the search is being conducted. Let your attorney contest the legality of the search in court. If you feel you are being investigated for a charge of DWI (usually an indicator is if you are asked how much alcohol have you consumed), politely refuse to answer any questions, refuse to perform any roadside field sobriety tests, and also refuse to give consent for any chemical specimen to be obtained (whether the request is either breath or blood).
Most commonly, you are stopped for a traffic violation and may be subject to be arrested if the police officer suspects that there is some kind of contraband in the car. The officer will ask you if there is anything illegal in your vehicle. If you admit that there is, you’ve given them probable cause to search your car. If you deny that there is contraband, they will ask to search your vehicle. If you should agree to give consent to a search, regardless of what is in your vehicle, because consent is the overarching factor that would make an otherwise illegally obtained piece of evidence admissible in court, you were literally availing yourself of your best possible defense. However, there is absolutely no purpose to make their job easier for them, so make them do their job and try and obtain a valid search warrant that authorizes a search. If they do suspect something, they can get a search warrant. You don’t need to make their job easier for them. You want to know your rights and do not want to consent to a search of your vehicle, even if you believe that nothing would ever be found that would be illegal in your car. I can say from experience countless times many people have been arrested even still believing the same rationale. At that point, ask if you are under arrest or if you are free to leave. If the officer says you are free to leave, then you should leave. If you’re under arrest, you should invoke your right to an attorney and invoke your right to remain silent.
***In addition, there are only two “unarrestable” offenses in Texas – a violation of speeding or allegedly having an open container. If either of these is the only criminal offenses alleged to have occurred, an officer CANNOT LEGALLY MAKE AN ARREST. However, for all other infractions, even for minor traffic violations then – such as changing a lane without signaling, broken taillights, etc. – virtually anything in the transportation code is considered a criminal offense and any police officer has the power and authority to effectuate an arrest. However, it should be noted this is usually done only when an officer believes they may find something else in the vehicle, or they believe the person is engaged in more serious criminal activity, or for some other reason to legally have the authority to investigate further. Regardless, if an officer asks someone to step out of their vehicle, a person ABSOLUTELY MUST and SHOULD comply.
Being Polite, Courteous – And With The Threat Of Drug Dogs
In any traffic stop scenario, it goes without saying and is obvious that throughout the encounter – and with any police encounters for that matter – a person must remain polite. If not, it may cause a person who may otherwise just be cited for a minor infraction, such as simply getting a speeding ticket, into being charged with something more serious. If they do ask someone to get out of the vehicle, the rights of an individual are the exact same. A person has the right to refuse to answer any questions, other than providing their legal name (which can be done by showing proper identification, such as a valid driver’s license). However, a traffic stop, in general, regardless of the actual intention of the police officer, because it is a “detention” and not an “arrest” – can only be conducted for as long as necessary for them to complete whatever the initial purpose of the stop. In other words, if the officer suspects that drugs may be in the vehicle, but the person does not give their consent despite repeated requests by the officer to try and coerce obtaining permission to search, they cannot prolong the detention in an attempt to gain probable cause to conduct an investigation further.
Sometimes if consent is not given to search an officer may threaten to call and get drug dogs to conduct a sniff of the vehicle. If this occurs, one should still maintain and be resolute in refusing to allow a search. It is also possible that the officer may try to prolong the detention in order to keep questioning and/or pressuring the person until probable cause may eventually develop to justify a search and/or an arrest. This underscores the very reason why one should NEVER consent to anything, including and especially to a search of a person’s vehicle.
Traffic Stop- The Main Checklist
- The police can initiate a traffic stop for any number of reasons. An individual should pull over immediately and safely to the side of the road, and preferably into a private parking lot. After pulling over, turn your car off, take your keys out of the ignition, place them on the dashboard, and then wait for them to approach.
- Make sure there is nothing in “plain-view” that can be seen anywhere in the vehicle that could be construed as contraband or illegal. If they do see something of this nature, it would give automatic probable causeto search the vehicle.
- Have your driver’s license, proof of insurance, and registration ready when they approach the vehicle, and simply give these documents by rolling down your window enough so you can make sure they can properly take possession of them. Then place your hands on the steering wheel and say nothing else whatsoever. If asked why you were pulled over, do not guess. often, if they do not already possess the requisite reasonable suspicion to conduct the traffic stop at this point if you guess you are in effect giving them an additional reason to justify the detention. You are only required to give your identifying information listed above, such as your full legal name and required documents indicating your legal ability to operate a motor vehicle.
- If the police officer asks you to step out from the vehicle, comply with this request. However, remember to exercise your rights, including saying as little as possible to avoid making any incriminating statements.
- Do not consent to any search of your vehicle, even if you feel you have nothing to hide. There are no repercussions for you refusing to consent to a search of your vehicle. If they have probable cause to search, do not resist or argue when the search is being conducted. Let your attorney contest the legality of the search in court.
- If you feel you are being investigated for a charge of DWI (usually an indicator is if you are asked how much you have had to drink), politely refuse to answer any questions, refuse to perform any roadside field sobriety tests, and also refuse to give consent for any chemical specimen to be obtained (whether the request is breath or blood). Summary of your rights
3rd Party Consent – Residence
If the police come to your door and you have a roommate, or someone else present who gives consent to a search of the premises, the police can then search the entire premises (even without a search warrant). Third-party consent is valid in many scenarios when the person has some type of authority over the premises, such as if another person has joint access or control over the place to be searched. If one realizes that consent has been given without their permission or perhaps arrives subsequently and in the middle of the search, they should immediately revoke the consent in a clear and unequivocal fashion. It should be noted that the police can ask your spouse/partner/roommate/guest/visitor for consent onto premises or access to items, such as computer even though it may not be listed in the warrant. The laws and rules involving 3rd-party consent are very ambiguous and vague. Generally, the most relevant factor is who has the main key control over the thing/place to be searched. Anyone can consent to a search as long as the officers reasonably believe, in good faith, the third person has control over the thing/place to be searched.
If You Are Stopped In Your Car
- Stay calm, remain polite, and try to be as cool and collected as possible throughout the encounter.
- Do not attempt to evade or otherwise try to elude detention if it is clear a law enforcement officer is attempting to initiate lawful detention.
- If you know that a police officer is attempting to pull you over, stop your car in the very first available safe place as quickly as possible. Once you park, turn the ignition of your car off, get the required documents ready you know will be asked, open the window only enough so you can make sure you give the police officer the documents, and then place your hands on the steering wheel.
- If you know you are going to be pulled over, try to make sure you ensure there is nothing in “plain view” that can be seen and possibly thought to be illegal contraband by the officer when he approaches.
- Upon request, show the police officer your valid driver’s license, registration, and proof of insurance.
- Always keep your hands where the police can clearly see them by placing them visibly on the dashboard inside your vehicle. Always avoid putting your hands in various places or moving them around (whether inside or outside of the vehicle), and also avoid putting your hands in your pockets, police officers initial reaction is always to believe it is to reach for a weapon.
- If you are not under arrest and the encounter is taking longer than you think is necessary, ask if you are free to leave. They indicate that you are, simply in a calmly and silent fashion just walk or drive away. If they convey you are under arrest, you have the legal right to inquire for what reason and under what authority. However, even if you disagree with their answer to this, still remain acquiescent and docile, and comply with whatever request or demand they give you.
- If an officer asks to look inside or to search the inside of your vehicle, POLITELY REFUSE. However, if the police officer has reason to believe that your car contains evidence of a crime, it can be searched without your consent. If this occurs, even if you disagree with what is being done, do not resist or react combatively. If it is an unlawful search, let your attorney attack the legality of it later in court.
- Both drivers and all other occupants of the vehicle all possess the same absolute right to remain silent. If you are a passenger in the vehicle, and you feel there may be something strange occurring with the encounter, you can ask permission from the police officer if you are free to leave. If the officer says yes, either sit silently away from where the incident is occurring or calmly leave without saying anything or making anybody movements that may seem suspicious. Even if the officer says no to your request, you still have the right to remain silent, and you should invoke it if questions are posed directly to you.
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