There are many misconceptions about how one must conduct oneself when confronted by a police officer. Knowing the law and your rights will protect you. Let’s suppose you are at a peaceful protest and you a police officer approaches you, will you know how to respond? If you think speaking up and/or being confrontational is a good idea, then you don’t know. This article is designed to help. The behavior suggested below is based on your Constitutional rights when dealing with a government agent or law enforcement officer (LEO). Immigrants have the same rights as U.S. citizens. Whenever confronted with a situation where you are being questioned by a LEO, less is ALWAYS more. Don’t ever sign anything that you’ve been given by a LEO. It will likely be a waiver of your Constitutional rights.
Ok, so you’ve got your anti-fracking poster and a LEO approaches you and says, “What’s that in your hand?” Your response should be, “Am I being detained” or “Am I free to go?” Do not add anything else. If the LEO says, “Yes, you are being detained,” your response should be: “Why?” This is not meant to be argumentative which you should never be. It’s simply meant to get on the record why the LEO thinks he or she has the right to detain you.
If you get arrested for any reason, it is important to unequivocally state that you are invoking your rights. You have the U.S. Constitution 5th Amendment right to remain silent, the 6th Amendment right to an attorney, the 4th Amendment right to unlawful search and seizure, and the 14th Amendment right to due process (meaning you receive notice of any charges filed against you and a right to be heard in response).
Let’s say a LEO pulls you over and asks for your consent to search your car, your response should be an unequivocal “No.” Unless you give consent, a police officer must get a warrant to search. It MUST be signed by a judge. LEOs rely on people not knowing their rights and many people just easily cede their privacy rights with the rationale, “I have nothing to hide.” That is not the point. Your refusal is necessary to reinforce to the law enforcement community that the populous will expect their Constitutional rights to be protected.
The following are the correct ways to invoke one’s rights if being questioned by a LEO or if you have been placed under arrest. If you are arrested, a LEO may only search the area within your wingspan under a search pursuant to a lawful arrest.
“I do not consent to a search.”
“No, you may not look through my things.”
“I invoke my right to a lawyer.”
Once you are detained, STOP TALKING. PERIOD. Because if you don’t, you will waive your rights. If you need to go to the bathroom while you are in detention, communicate that but re-invoke your rights immediately after. You may think you’re very well versed in the law or that you can effectively talk yourself out of a situation. Believe me, nothing you say in detention will help you. It will only hurt you. That is why the Miranda rights explicitly state that. You will get your day in court and you will be much better off with an attorney, particularly if you have not yet made damaging statements that will be recorded and memorialized by the police.
If you are arrested, you will be allowed one phone call. You will not have access to your cell phone because the LEOs will likely be looking through it. Your other possessions will be taken away as well. Make sure you have your lifeline person’s phone number memorized. Make sure it’s the person who will help you post bond or who will help you get an attorney. If you already have an attorney, ask him or her for a cell number in the event you need help after hours.
If LEOs show up at your house, make sure there is a valid arrest warrant that has been signed by a judge. Ask that it be slid under the door so that you can make sure it is valid (it has your name on it and your correct address). There have been instances where LEOs have kicked a door down, searched an entire home and frightened the residents and they were at the wrong house. Also check to see if there is a judge’s signature on the warrant. If it is a valid warrant, say through the door, “I am coming out in compliance with the warrant. Please take three steps back.” This is to ensure that they can’t search your home since an arrest warrant allows a search of the wingspan area. When you leave your house, close the door behind you. If the warrant is not valid, don’t open the door.
Search warrants also have limits. If the search warrant mentions a large object like a rifle, there is no need for LEOs to be searching a small purse because a rifle would not fit inside.
There are exceptions to when you must speak. If you are arrested for a DUI, you will have to speak and choose whether you will be tested by a breathalyzer test or a blood test. Those options and the specifics of that type of stop and/or arrest will be discussed fully in an upcoming article since they have serious consequences. Another instance of having to speak is if a LEO asks you to identify yourself. You only have to give your full name and date of birth. And don’t run away after you are free to go. It will give a LEO sufficient cause to follow and arrest you. A third instance is if you are contacted by ICE. That scenario will be discussed more fully in an upcoming article because there are very specific details for dealing with ICE if one is an immigrant.
The best course of action is to stay out of the system whenever possible. Getting arrested is not a good experience. Knowing your rights will help you minimize negative consequences of it. To sum up, never say more than you are legally required.
Ellen Sakany is an attorney practicing criminal and personal injury law in Colorado. She can be reached at esakany@gmail.com or 720-441-2792.