The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Constitution, Fourth Amendment.
A police detainee “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation.” Miranda v. Arizona, 384 U.S. 436, 478-479 (1966).
The police are trained to persuade people to give up their Constitutional rights and to catch them off guard. Nobody is safe from becoming a criminal suspect, whether rightly or wrongly. Here is a non-exhaustive list of your essential rights when dealing with the police in the United States.
Nobody has an obligation to speak with the police other than when asked for one’s name. If you are a criminal suspect, it rarely helps to speak with the police. If you are unsure whether you are a suspect, it is better not to speak with the police before obtaining the advice of a qualified criminal defense lawyer.
Non-drivers are not required to carry nor show identification to police. Depending on the governing law and jurisdiction, it might be a crime to refuse to give one’s name when police have reasonable articulable suspicion that the suspect has committed a crime. Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004).
Lawfully stopped drivers take risks when declining police requests to see their license and vehicle registration. California v. Byers, 402 U.S. 424, 433-34 (1971).
You can assert your rights without being confrontational. For instance:
POLICE OFFICER: Excuse me, would you tell me where you are going?
CIVILIAN: No, officer.
POLICE OFFICER: Why not?
CIVILIAN: I choose not to speak, officer.
POLICE OFFICER: Please pop open your trunk.
CIVILIAN: No, officer.
Even if you believe your arrest is unlawful, a judge or jury may not agree. Moreover, some jurisdictions prohibit physical force even against an unlawful police arrest.
Yes. If you do not agree to a search, clearly say so. However, do not physically interfere with any search by the police.
No. Generally, you have the right passively to resist the police, by not showing any physical obstruction, on the one hand, and by not providing assistance, on the other.
If you are unsure whether you are free to leave, ask if you are free to leave. If the police do not allow you to leave, ask the reason.
Remember your right to remain silent with police. Beware the junk science of field sobriety tests, the option to refuse them, and any risks that refusal will be admissible at trial. Beware the junk science of handheld roadside breath tests. Bewared the double-edged sword of taking a breath or blood alcohol test post-arrest and thereby making the prosecutor’s job easier, and the penalties to your driving privileges and liberty that might result from refusing such testing.
Consult with a qualified criminal defense lawyer to level the playing field in dealing with the police, and to avoid devastating landmines in advance. If you cannot afford a lawyer, you will be eligible for court-appointed or public defender counsel by the time you are formally charged with committing a crime, if you ever are charged with a crime, at the very latest. Some court-appointed counsel and public defender systems make indigent defense counsel available before a person is arrested or indicted for an alleged crime. Your rights to a lawyer and to remain silent are sacred and are enshrined in the Constitution’s Bill of Rights. U.S. Constitution, Fifth and Sixth Amendments.
Fairfax criminal lawyer Jon Katz has been defending thousands of criminal defendants’ rights since 1991. To discuss your case with Jon, please call his staff at (703) 383-1100 for a confidential appointment.