Did you know?

If you have ever had a police encounter, you understand the concern and anxiety that goes along with that event. We know and have seen first hand the outcomes of many black and brown people who were innocent, committed no crime, and/or obeyed police officers commands and still received inequitable treatment. Bureau of Justice Statistics (NCJ 251145) shows that blacks are twenty percent (20%) and Hispanics seventeen percent (17%) likely to have contact with police. While blacks are 2.5 times more likely than whites to have a fatal outcome. Being knowledgeable is key!

Note: Reform The Uniform™ is not a law firm, attorneys nor does Reform The Uniform™ offer legal advice. Reform The Uniform™ Law Literacy is providing this information to better equip you and your loved ones. PLEASE BE INFORMED!

Primarily, you need to know the difference between the three (3) types of police encounters and escalation steps along with the rights given to you by the United States Constitution.  

1. Consensual Encounter

2. Investigatory Stop

3. Arrest

CONSENSUAL ENCOUNTER

A consensual encounter occurs when there is an encounter by or with a police officer and a conversation is initiated. A consensual encounter does not involve police officer’s commands, force, or lights and sirens. There is no need for a crime or even a suspicion of a crime to have occurred.

The police officer may ask you questions and you have the right to refuse to answer.

During a Consensual Encounter you have the right to

* Walk away

* Refuse to identify yourself

* Tell the police officer you do not wish to speak to them

To determine if a police officer is conducting a consensual encounter or an investigatory stop is whether a reasonable person would not feel free to leave.

Some people may feel they are not free to leave if the officer is asking multiple questions in a forceful manner or if several officers surround the individual. When in doubt simply ask the police officer, “Am I free to leave?”

If a police officer shows authority in a manner that restrains or restricts your freedom of movement such that a reasonable person would feel compelled to comply, the consensual encounter has now become an investigatory stop.

INVESTIGATORY STOP

The second level of encounter is called an Investigatory Stop or Investigatory Detention. Also known as a Terry Stop from the legal case Terry v. Ohio, 392 U.S. 1 (1968).  In Terry, the Supreme Court held that police may briefly detain an individual who they reasonably suspect is involved in criminal activity.

The key term here is reasonable suspicion. In order for a police officer to detain a person for investigation, the officer must have reasonable (generally accepted) suspicion that the person has committed, is committing or is about to commit a crime.

During an Investigatory Stop you do not have the right to walk away. You do not have the right to refuse to identify yourself. However, you do have the right to tell the police officer you do not wish to speak to them. Remember this is your constitutionally guaranteed Fifth Amendment right to remain silent.  (Be sure to read and understand Miranda rights about silence)

The United States Constitution informs that a citizen’s Fourth Amendment rights are triggered during investigatory stop, and such stop requires proof of well-founded, articulable suspicion of criminal activity. Whether a police officer has a founded suspicion for a stop depends on the totality of the circumstances, in light of the police officer’s knowledge and experience. A suspicion or mere hunch that criminal activity may be occurring is not sufficient. To be clear, it is against the law for a police officer to conduct an investigatory stop without reasonable suspicion of criminal activity.

Stop and Frisk is another term for detention. During this brief detention, the police officer may “frisk” (search (a person) for something concealed, by passing the hands quickly over clothes or through pockets), if the police officer has reason to believe you have any weapons on you. This is done for the police officer’s and others safety. However, during this frisk, if the police officer feels something from plain touch and can tell it is contraband (goods that are possessed contrary to law or rule) they can then do a full search of your person because now they have probable cause to conduct a search.

After this detention, the police officer must either let you go or, if probable cause is found, make an arrest.

ARREST

The last level of police encounters involves an arrest.  A police officer makes an arrest by physically restraining a person or by using authority in order to show that the individual is not free to leave. The police officer must have probable cause that the individual committed a crime in order to make the arrest. The key term here is probable cause.

Probable cause is the legal standard that a police officer must have in order to make an arrest, conduct a personal or property search, or obtain a warrant for arrest. Probable cause is a stronger standard than reasonable suspicion and because of that, it requires facts or evidence that would lead a reasonable person to believe that a suspect has committed a crime.

Note: A police officer may make an arrest without a warrant in several circumstances, including:

• A warrant for an arrest has been issued which is still in effect and the police officer knows of the warrant even though another police officer holds it.
• A felony committed and the police officer has reason to believe the accused committed the felony.
• A misdemeanor or felony was/is committed in the police officer’s presence.

However, there are some misdemeanors offenses where different state laws allows a police officer to make an arrest without a warrant and even when the crime was not committed in the police officer’s presence.

If you are arrested, remain calm even though you may feel agitated. Do not resist the police officer as this may heighten the police officer’s response and could make things worse. In addition, to giving the police officer another opportunity to add additional charges to your record. Do not allow them to focus more on your behavior rather than the reason(s) for your encounter, detainment and/or arrest.

MIRANDA RIGHTS

According to mirandarights.org, “It is important to note that Miranda rights do not go into effect until after an arrest is made. The officer is free to ask questions before an arrest, but must inform you, the suspect that the questioning is voluntary and that you are free to leave at any time. Note, the answers to these questions are admissible in court.

The police officer must ensure that you, the suspect understands your rights. Should you not speak English, these rights must be translated to make sure they are understood.

If you are placed under arrest and not read Miranda rights, spontaneous or voluntary statements may be used in evidence in court. For example, if you start using excuses justifying why you committed a crime these statements can be used at trial.

Silence can also be used against you if it occurs before you are read the Miranda rights. For example, an innocent person would proclaim his or her evidence or try to give an alibi rather than staying quiet. The prosecution will try to use your silence against you in court.

If you are being investigated for a crime and wish to remain silent before being Mirandized, you can inform the police officer that your attorney told you to never speak to law enforcement without talking to him or her first. This looks less suspicious than simply refusing to answer questions”.

One lawyer stated that the streets belong to the police officer. Comply with law enforcement officers, even if you have doubts.  Practicing law in the courtroom is where attorneys work best.