NOTICE: The following is provided for general informational purposes only. The law on this topic changes periodically and may be outdated or may not apply to your case and specific facts. The information provided on this site should not be relied upon without consultation with a licensed attorney in your state.
Authored by Mark A. Johnson, Esq.
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Topics Covered Below:
•General search law
•Cooperation with a police investigation
•Searches
•Statements
•DUI detentions and arrests
Law enforcement officials are successful in making arrests and obtaining criminal filings in large part because individuals do not always know his or her rights and misunderstand the law and therefore cooperate with the police in the belief he or she will be exonerated, only to find a crime will be charged. I call this, “guilty with and explanation,” syndrome.
The police are also successful in making arrests and seeking prosecution because individuals lack the courage to assert his or her rights and feel an objection won’t matter. To the extent individuals believe they know their rights, they are often mistaken as to the application of the law. I equate knowing a little about the law is like knowing a little about martial arts, use the knowledge in the wrong way and you can really get hurt.
An objection to unlawful or inappropriate conduct should always be made, although it may be ignored and evidence of the objection may be difficult to prove in court should the officer deny it occurred. Absent one’s protest at the proper time, it cannot be claimed later. The appellate courts have routinely found that allegedly subtle coercive conduct by the police, such has uniform, number of officers, placement of hands on their weapons, and so on, is insufficient to show oppression and coerced consent.
In the event a protest is raised and the officer proceeds with a search or arrest, one must cooperate with the officer at the risk of additional charges. Challenging an officer’s conduct in a hostile manner usually makes matters worse. In such a situation, keep your cool, make notes and take pictures of injuries or property damage and consult an attorney right away.
Should I Cooperate with the Police Investigation?
Overwhelming it is NOT advisable to cooperate with a police investigation without first consulting with an attorney. In some cases, cooperation may be necessary but should be under controlled circumstances.
I cannot tell you the number of times clients misunderstood their rights, cooperated with the police, even presenting evidence on their behalf, only to find they were arrested and charged with a crime. All is not lost in these cases and an experienced attorney can help.
Do I have to Consent to a Search?
The police have no obligation to tell an individual of the right to refuse a request for a consent search if no warrant exception exists.
The US Constitution protects individuals from unreasonable searches and seizures and a warrant giving permission to search is required in cases where a person has an expectation of privacy. In theory, one always has an expectation of privacy. However, the appellate courts have carved out many, many exceptions to when an individual has a diminished expectation of privacy such that a warrant is not required provided certain requirements are satisfied. Based on my experience, the exceptions apply in more situations than they do not.
One of the most significant exceptions is if the person consents to waiving his or her rights. For example, the officer says, “Hey, do you mind if I search you?” The person almost always agrees, and may add “I guess”, or “it doesn’t matter anyways.” As noted earlier, a feeling of coerced consent amounts to consent, even if reluctant.
I do not explore all areas of the exceptions in this article. However, if an officer asks if he or she can search you, your car or property, you are allowed to tell the officer “No!” The search may still take place and your lack of cooperation may prolong the officer’s investigation, even if unwarranted.
Do I have to make a statement?
As a general rule, an individual only has the requirement to truthfully identify oneself if lawfully detained. (Detentions are not covered.)
A statement to police is generally not advisable before consulting with an attorney. As noted elsewhere, individuals often misunderstand the law and a statement becomes guilty with an explanation.
One’s right against self-incrimination and law enforcements’ obligation to tell a person of his rights is often misunderstood. I have lost count of those who tell me the officer did not read them their rights.
Until a person is in custody, which for practical purposes means arrested, and, asked questions of an incriminating nature, police have no affirmative obligation to tell a person a statement cannot be compelled.
The Constitution does not require a person be informed of individual rights, but the Miranda warning, a development of case law, requires the warning under the two conditions described.
A recent US Supreme Court decision found that after what is known as the Miranda warning is given, the police have no affirmative obligation to say anything else and may start questioning the subject. It is up to the individual to tell the police no more questions.
SEE ALSO MY BLOG ON THIS TOPIC.
DUI Arrest
What am I required to do if detained for possible DUI.
Unless an individual is under 21 or on probation for DUI, only after actual arrest, is an individual required to submit to a chemical test (blood, breath or urine analysis for alcohol content) in order to avoid long-term suspension of driving privileges.
If stopped for possible DUI, an individual is required to provide truthful identification, driver’s license and proof of financial responsibility.
An individual is not required to answer questions related to whether he or she has been drinking, how many or where drinks were consumed. An individual is not required to perform what is known as the Field Sobriety Test, tests designed to assess psychomotor skills. Though, some conditions of DUI probation may require performance of the test. My experience is many officers are not completely familiar with the right to refuse the tests. The tests do not have to be performed because the results become a form of self-incrimination.
PAS-Preliminary Alcohol Screening
Officers often carry portable preliminary alcohol screening devices and ask drivers if they care to blow into the device and if they do well, they will be on their way.
The operative question to ask the officer is if you are under arrest. If the answer is “no,” refuse the test unless under 21 or on DUI probation. Again, to keep one’s license, after arrest a chemical sample must be given to avoid long-term driver’s license suspension.
