Types of Encounters With Law Enforcement Agents...
There are three levels of police-initiated encounters. The second two—which are more serious—require a certain level of proof before the police can undertake them.
Encounter Level of Proof
(1) conversation none
(2) detention reasonable suspicion
(3) arrest probable cause
1).Conversation
When the police are conducting an investigation, but don’t have enough evidence to detain or arrest you, they’ll try to get you to chat with them. They may call this a “casual encounter” or a “friendly conversation,” etc. If you cooperate, you’re likely to give them the very facts they need to arrest you.
If an officer tries to start a conversation with you, find out whether you’re free to go. If you are, then you should leave immediately, without saying anything else.
Sometimes, an officer will ask you to come to the police station “to answer a few questions.” 1 Don’t do it. There’s a good chance you’ll leave the station in handcuffs. Just tell the officer no. If you’re outside, walk away; if you’re inside, close the door; if you’re on the phone, hang up. Then contact a criminal defense lawyer right away.
1. "Will you walk into my parlor?" said the spider to the fly. The Spider and the Fly, line 1, Howitt, Mary. http://www.maryhowitt.co.uk/poems.htm.
2).Detention
Detention is a short period of custody, often occurring while the police are deciding whether or not to arrest you. In order to detain you, the police are supposed to have a reasonable suspicion that you’re involved in a crime. This suspicion must be more than a mere hunch, and the police must be able to put their reasonable suspicion into words. That’s why it’s sometimes called an “articulable suspicion.” For example, if an officer stops an individual, it would not be enough for the officer to be thinking, “He looked like he was up to something.” The officer’s thoughts would have to be more specific, such as, “He kept looking in the window of the jewelry store, then walking away, then coming back and peering into the store again. And he wasn’t from the neighborhood. He seemed nervous and agitated, so I thought he might be planning a burglary.”
Usually, a reasonable suspicion is based on multiple factors, such as: the suspect matches the description of a wanted criminal; the suspect drops an object after seeing the police; the suspect runs away after seeing the police; etc.
Detention is supposed to last only a short time and should not involve changing location, such as going to the local police station.
It may be useful later on, when you’re fighting the case in court, to have asked the officer why you’re being held. If the officer cannot articulate his suspicion, you may be able to show that your detention was unlawful. Obviously, this tactic will work better if you have witnesses who will testify that the officer made an inadequate reply. (Without witnesses, it’s just your word against the police officer’s, if the officer lies about what he said.)
If you do ask why you’re being held, memorize the officer’s response. Never tell a cop that he doesn’t have reasonable suspicion. It won’t make the officer let you go, it will only annoy him and remind him to think up a good reason for having detained you, before he writes his report.
During a detention, the police are entitled to pat the outer surface of your clothing, to check for guns, knives or other weapons. If you’re detained while driving, the officers can look inside the car for weapons (but not in the trunk). A detention search is conducted only to ensure that the detainee has no weapon. While detaining you, once the police have patted you down and haven’t felt anything that could be a weapon, they cannot then examine the contents of your pockets. However, they may try to trick you into “voluntarily” allowing them to search further than they’re entitled during a detention. The officer will ask you to show him the contents of your pockets, bags, trunk, etc. The request will usually sound like a casual order, especially when the officer uses a commanding tone of voice:
• Let’s see what’s in your bag.
• Want to pop open the trunk for me?
• How about showing me what you’ve got in your pockets?
Never give permission to law enforcement officers to search. It’s important to state your refusal clearly (rather than just shaking your head), so that the police can’t misunderstand.
3).Arrest
You can be arrested by an officer or a citizen who sees you commit a crime. And even if they didn’t see you, the police can arrest you if they have probable cause to believe that you’re involved in a felony (or sometimes a misdemeanor, depending on the type of crime and the jurisdiction). The facts adding up to probable cause vary, according to the nature of the case. Say, for example, the police received a call from a store owner that someone matching your description had just spray-painted lots of graffiti all over the front of his store. The police drive to the area and notice you running down the street, about a block from the store, holding a can of spray paint in your hand. Under these circumstances, the police would have probable cause to arrest you. They don’t need an arrest warrant as long as they have enough facts for probable cause. Probable cause is more than a reasonable suspicion, but less than the level of proof required to convict you at trial (proof beyond a reasonable doubt).
Once you’re under arrest, the police can search your clothes, your body, your bags, your car, etc. In addition, after arresting you, the police can search your “wingspan,” the area within your immediate control. Your wingspan could include a whole room, if the room is small enough that you could lunge to any part of it.
A detention frequently turns into an arrest, particularly if you answer the officer’s questions. Physically resisting the police will almost always turn a detention into an arrest—even gently touching a police officer can result in charges of assault or battery on an officer. If the police find a weapon or see drugs while detaining you, that’s likely to provide the probable cause necessary to arrest you. For instance, the police might detain you to see whether you match the description of a particular crime suspect, and then discover an illegal knife while pat-searching you. Or the police might pull you over when you’re driving and detain you to write a ticket, and then spot an open alcoholic beverage container in your car. Once you’re under arrest, the police are allowed to search your clothes and body and to go through your bag and/or vehicle.1
1. If you're arrested in your car, the police are allowed to search the passenger compartment, but not the trunk (unless they impound the car).
Basic Responses to Detention and Arrest
As soon as you perceive that you’re not free to go, say the Magic Words: I’m going to remain silent. I would like to see a lawyer. By invoking your rights at the very outset, you make it much harder for the police to trick you into saying things that can be used against you in court.
Of course, remaining silent is hard to do. It’s human nature to try to talk your way out of trouble. Nervousness makes people want to talk, too. Naturally, the cops are aware of these tendencies and use them to manipulate you into answering questions. It takes real self-control to exercise your right to remain silent, but it’s the best possible thing you can do for yourself, in terms of criminal defense strategy.
The biggest mistake that people make is waiting for the police to prompt them. Since the cops’ goal is to get you to provide information, they will carefully avoid giving you a cue that reminds you to be quiet. So as soon as you confirm that you’re not free to go (by asking or by trying to leave), say the Magic Words: I’m going to remain silent. I would like to see a lawyer.
Do not wait for the police to say “You’re under arrest.” They do not always say it and they’re not required to do so.
Do not wait for the police to read you your rights. They may not bother to do it (and they’re not required to read you your rights unless you’re under arrest and they want to question you).
Remember that the best defense is a good offense. Say I’m going to remain silent. I would like to see a lawyer, early and often: Don’t worry if the police make fun of you for saying the Magic Words before they’ve formally announced that you’re under arrest or before they’ve read you your rights. This teasing is merely another trick, to make you unsure of yourself.
Training yourself is critical. It’s hard to have the right moves in an emergency—like an arrest situation—if you haven’t practiced. Soldiers, during their training, are drilled so that they automatically give only their name, rank and serial number when they’re being interrogated. You need to develop the same reflexes, because if you’ve been taken into police custody, you’re definitely in enemy hands. Your job is to give only your name and address, then say the Magic Words and stop talking. Because in this situation, the police are not on your side. The officers may just be trying to find a reasonable suspect (if not the actual suspect), or they may dislike your ethnicity or attitude. Whatever the circumstances, once you’ve become a suspect, the smart thing to do is to say: I’m going to remain silent. I would like to see a lawyer.
Sometimes, an officer will ask you to come to the police station “to answer a few questions.” 1 Don’t do it. There’s a good chance you’ll leave the station in handcuffs. Just tell the officer no. If you’re outside, walk away; if you’re inside, close the door; if you’re on the phone, hang up. Then contact a criminal defense lawyer right away.
1. "Will you walk into my parlor?" said the spider to the fly. The Spider and the Fly, line 1, Howitt, Mary. http://www.maryhowitt.co.uk/poems.htm.
