Practical Tips for Responding to a Police Stop
Nicholas Walsh, PA
Nobody’s idea of a good time begins with a blue flashing light in the rearview mirror, or on an approaching Marine Patrol boat. And how you react to that stop can make a big difference in whether the encounter ends as just a few minutes’ inconvenience or as the start of something really bad. While we are all aware that we have rights under the U.S. Constitution, many of us are not quite sure how those rights translate into action. Here’s an overview that focuses on the practical.
Let’s talk about vehicle stops first. When you see those flashing lights, pull over at the first safe opportunity. A failure to stop promptly may give the officer “reasonable suspicion”, allowing him or her to search your car without your consent.
If there are others in the car, instruct them very firmly that you will do all the talking. You will say very little indeed.
When the officer approaches, roll the window down, but only a few inches. All the other windows should be rolled up. The point, as you will see, is for you to establish and maintain control of the vehicle.
The officer will probably ask if you know why he or she stopped you, or ask “Do you know how fast you were going?” There is only one correct answer to such questions: “No officer, I don’t.” If you say “I was speeding” or “I might have swerved back there”, you have given the District Attorney a valuable admission, evidence from your mouth which the judge or jury will hear about, if it comes to that. Volunteer nothing.
The officer will ask for license and registration, and you will produce those. If the officer asks you to step out of the car, do so, but first roll up the driver’s window (all the others are already shut tight). This prevents the officer from leaning in your window, or any of the other windows, and having a look around. Some lawyers recommend you also lock the doors to establish firmly that you do not intend to allow a warrantless search, that the car is your castle.
The officer may ask if you would mind allowing him to look in the trunk and inside the car. You will say the following words: “I don’t allow warrantless searches”, and leave it at that. You may be pressured, cajoled, made to feel guilty, but just repeat “I don’t allow warrantless searches.”
Remember, if you give your consent to a search, you have in one instant waived all your Fourth Amendment rights against unreasonable searches. And the fact that you would not consent to a search can never be used as evidence of guilt or evidence that might support a criminal complaint or a warrantless search. All you have done is assert your rights under the Constitution.
I recommend against ever giving consent to a search, even (or especially) of your home, even if you are sure the car or home is clean. You cannot know what a guest, prior owner, or kid may have stashed or lost there, and if it’s found during a consent search you could have big trouble.
You may be asked to empty your pockets. If an officers stops you and has reasonable suspicion that you committed a crime, he or she has the right to pat you down in a search for weapons. (This is the “stop and frisk”, subject to much abuse in some inner cities.) If something that feels like it could be a weapon is patted, it can be removed for identification. However, a pocket search is different - it’s a search, and you do not have to consent. Again you will say: “I don’t allow warrantless searches.”
Suppose the officer processes the traffic infraction (gives you a ticket) but attempts to detain you, for example while he waits for a K-9 unit to arrive with a dog to sniff around the car. (A police dog can sniff around - not in - the car without a warrant.) He or she may warn that if you would just give consent you could go on your way, and you’ll be made to feel guilty, or that if you’d just give consent the officer could respond to a big emergency on the other side of the county. At that point you will ask the following question: “Are you detaining me, officer, or am I free to go?”
That simple question requires the officer to determine whether he or she has “reasonable suspicion” to detain you briefly pending further investigation. An officer has reasonable suspicion to detain you if he or she has articulable facts (not hunches, not gut feelings) to believe you have committed or are about to commit a crime. Speeding and other traffic violations do not provide reasonable suspicion to hold you beyond the time required to process the traffic infraction, and the cop knows that. So by asking that question you are forcing the officer to make a determination into whether whatever other information he or she has gained to that time amounts to reasonable suspicion. With your tight lips, rolled up windows and refusal to consent to any search, the result may be a reluctant “You’re free to go.”
If the officer doesn’t answer the question and you continue to believe you may not be free to go, ask again: “Are you detaining me, officer, or am I free to go?”
If you are detained, the game changes. You’ve been arrested, whether you are cuffed or not. At this point you should certainly not volunteer any information, and if you are asked any questions, there is again only one correct response: “I will remain silent. I want a lawyer.” Those magic words should result in no more questions. However, if you begin to volunteer information, or if you are asked a question and respond, the officers can generally renew questioning. So it is much the best course to simply tell the officers that you are not answering questions, and that you want a lawyer, and then for goodness sakes shut up and stay shut up. Your lawyer will love you for it, believe me.
The same law applies at sea, with two important details. The U.S. Coast Guard is deemed to have the right to stop any vessel for the purposes of an inspection, and (speaking as a former USCG boarding officer), those inspections can get pretty intrusive. Maine statutes provide that one who obtains a fishing license has deemed to consent to a search of the vessel. That doesn’t mean you have to stop, or that you have to allow the search, but you will lose your license if you do not.
Nicholas Walsh is an attorney specializing in maritime law and waterfront matters in Portland. He can be reached at 772-2191, or nwalsh@gwi.net.