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What Are Your Rights When You’re Stopped by Police?

by | Criminal Law

criminal law, stopped by police, new river law

It’s that time of year again.  Across the country, young adults are leaving home and embarking on a journey through higher education.  For many, this is their first taste of independence.  For all of these new adults, the decisions they make and the actions they take in adulthood will have lasting consequences in a way that their childhood choices never did.  The New River Valley is home to several fine higher education institutions, which means that many students are starting this journey right here.  This article offers some recommendations to you, the freshmen class of 2019, as you interact with peers, parties, and potentially, law enforcement.  If you go out one night and get stopped with the police, what are your rights?


It should go without saying that the information contained in this article is not legal advice.  Nor is it instruction for how to get away with breaking the law.  This article is an attempt to glean some basic rules from a survey of the case law on interacting with the police.  These rules are very fact-specific, so if you have questions about your own interactions with the police, make sure to give us a call.


The Fourth Amendment

Your rights under the Fourth Amendment, to be free from unreasonable search and seizure, never go away.    With that said, a search or a seizure can be deemed reasonable under the right circumstances.  There are three basic types of encounters: a consensual search, an investigative seizure, and an arrest.  The consensual search occurs when you agree to interact with police.  What you do and say can be used against you, but you are free to walk away from a consensual search.  An investigative seizure, or a detention, occurs when the officer has a reasonable articulable suspicion that something criminal is going on.  He can require you to stay with him briefly and he can “frisk” you for weapons to protect himself.  The line between these first two encounters is faint.  The easiest way to be sure is to ask the officer if you’re free to leave.   If you are, WALK AWAY.  If you’re not, it’s time to move on to the Fifth Amendment


The Fifth Amendment

The Fifth Amendment of the Constitution protects us compulsory self-incrimination.  As a practical matter, it prevents the police from forcing you to talk to them.  This is your right to remain silent.  The tricky part for most people when invoking their Fifth Amendment rights is the remaining silent part.  STOP TALKING.  If you feel awkward, just tell the officer you’ll be asserting your Fifth Amendment rights before you shut your mouth.  “Now wait,” some of you are saying by now, “Don’t they have to tell me my Miranda rights?”  If so, welcome to the New River Law blog and please take a look at this article.  If an officer is reciting the Miranda warnings to you, you are probably already in trouble.  Plus, if you volunteer information without being asked, Miranda offers no protection.  Don’t wait to have your rights offered to you.


The Final Encounter

The final type of encounter with police is the arrest.  This occurs once the officer has developed probable cause to believe that you have committed a crime.  For minor offenses, you may issued a ticket called a summons.  For more serious charges, you will actually be taken to jail.  Your best chance at preventing arrest is to know your rights and use them.  Ask the officer if he is wearing a body camera.  If he is, ask him to record the encounter.  Ask if you’re free to leave, do so.  If not, remain silent.  If you are still arrested or issued a summons, call a lawyer to get started on your defense right away.

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