What To Do When Stopped By the Police

Many people at some point are stopped by the police. It is worth having at least a basic understanding of your constitutional rights and what to do — and not do — in those situations.

Do not consent to searches

For police to search you, they need probable cause. Do not make it easier for them to find incriminating evidence. You should never consent to a search, and you should also never physically resist one. If asked, simply decline. If pressed, say that you want to preserve your rights.

Even if you know you have nothing illegal, consenting is still a bad idea. A vehicle search can mean you and your family sitting on the roadside while it is conducted, and it can mean damage to your car. If anyone else ever drives your vehicle, you cannot be certain what is in it — and it is far harder in court to argue that someone else left something behind.

Your home has the greatest Fourth Amendment protection. Police need a warrant to search it — unless you consent. If they want to search your home, ask to see the warrant.

Ask if you are free to leave

When stopped on foot, it often feels as though you are not free to go. You may be surprised how often prosecutors later argue the encounter was entirely voluntary right up until the moment police discovered something. That matters, because you have no Fourth Amendment protection in a voluntary encounter.

This is why asking whether you are free to leave is important. To detain you, police need reasonable articulable suspicion — more than a hunch, with specific reasons. Asking can end the encounter immediately if the officer knows he lacks that. It also strengthens a later motion to suppress if he detained you without it.

Do not volunteer information or make admissions

Everyone has heard that anything you say can and will be used against you. What people miss is that this applies before any warning is given. You typically will not hear Miranda until you are already under arrest, and you may never hear it unless you are questioned. Statements made before that point are still admissible as voluntary statements. It is very hard to win a case after volunteering incriminating information.

If you are arrested, ask for a lawyer

You may find yourself in an interrogation room with a form asking whether your rights were read to you, whether you understand them, and whether you will answer questions without an attorney present.

Do not answer questions. Ask for your attorney first. The case law is clear that requesting a lawyer ends the interrogation until one is provided, unless you reinitiate contact. You do not know what the police know — they may know nothing and be depending on you to supply it. You cannot reliably judge what is incriminating; even confirming where you were on a given date can be. Asking for a lawyer is by far the best course.

The police can and will lie to you

Courts have repeatedly upheld the ability of police to lie during questioning. This is another reason never to agree to an interview. They can tell you your friends have implicated you. They can tell you your DNA or fingerprints were found at the scene. Undercover officers can deny being police. Some states impose limits, but there is a broad range of deception permitted in order to obtain a confession or information used against someone else.

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