Know Your Rights – what you can and cannot do during a police encounter
Rights during a police encounter – Long before a criminal defense lawyer has a chance to become involved in a case, a criminal defendant has many important and on-the-spot decisions to make. These decisions can be difficult for someone who has little experience with the criminal justice system or who has little knowledge as to what legal rights he or she truly possesses. Everyone should be aware of what constitutional rights they possess, both at the state and federal levels.
A common question criminal defense lawyers get is “what rights do I have when I encounter police officers?” This is a very in-depth topic with multitudes of information. For the sake of providing some succinct information, we have shortened the information to address some of the most common issues and misunderstandings that we have seen many clients face. This blog explores some of these issues in a general manner. If you have specific questions regarding a specific situation, it is best to consult with a criminal defense lawyer.
What should I say to the police upon arrest or interrogation?
Generally, nothing you say will be very helpful to you. The potential for harm, however, is astronomical. Everything you say can and will be used against you. Generally, the police’s job is gather evidence against you. They are there to illicit incriminating statements from you. This is not personal.
Click here to read our blog on how your statements can be used against you.
Once arrested (or even just detained), we recommend that you assert your right to remain silent and your right to an attorney. To do this, you must clearly communicate your wishes to the police officer. To assert these constitutional rights, say something to the effect of “I wish to remain silent. I would like to assert my right to an attorney.” For more information on this, see our blog on Miranda Rights.
If the police stop me (when I am not driving) and ask for my ID, do I have to show it?
Generally, no. North Carolina has no “stop and identify” statute. Meaning, the police cannot just walk up to a person whom they “reasonably believe has committed a crime” and demand to see some sort of identification. Some states do have such laws. North Carolina, however, is not one of them. Of course, there are exceptions if a person in engaged in certain activities such as driving a motor vehicle.
Click here to read our blog on this specific North Carolina criminal law topic.
As a side note, even in states that do have “stop and identify” laws, police still cannot compel a person to identify themselves without reasonable suspicion that the person is engaged in criminal activity.As stated above, if you are driving a motor vehicle, a different standard applies, and you will need to provide identification upon request. To read about when a person is “seized” for Fourth Amendment purposes, click here to check out our blog “Fourth Amendment Seizure – When is a Person Seized for Purposes of the Fourth Amendment?”
Can police officers stop me and frisk me?
It depends. In short, if an officer has reasonable suspicion that criminal activity is taking place and that officer believes that the suspect involved is armed and dangerous, they can temporarily stop the suspect and they can perform a frisk of the suspect. A permissible frisk is a pat down of the clothing. The purpose is simply to uncover weapons or other instruments that may pose an imminent threat to police. This is a topic that deserves more than a few sentences, however, we have simply summarized the information.
Also, please note that this type of “protective” frisk is to be distinguished from a search incident to arrest. Once a person is actually arrested (whether with or without an arrest warrant), a different standard applies. If you are interested in learning more about warrantless searches, click here.
As noted above, the searches that takes place after arrest are a completely different ball game. If you would like to learn more about this topic, please feel free to check out the following blogs:
What if a police officer asks to search my car, person, home, or belongings?
You have the right to refuse to consent to a warrantless search. Under the Fourth Amendment of the United States Constitution, Police are required to obtain a search warrant to search a person (or their house/vehicle/belongings) unless a specific exception applies. Consent to a search is one such exception. When a police officer asks a person to consent to a search, they are asking that person to waive their Fourth Amendment Right. You do not have to do that. Deciding whether or not to consent to a warrantless search is a personal decision. Something to consider is whether or not the officer will uncover illegal activity. If the officers do uncover illegal activity, more than likely, the individual will be charged. We have a blog that specifically addresses the issue of consent and warrantless searches.h
For more information on Fourth Amendment searches and seizures, check out our blog here.
Can I film the police?
Generally, yes. As long as you do not get in the way of the investigation and as long as you are not breaking another law, you can record police officers in public. If video recording is not allowed in the area (for example, in certain government buildings such as courthouses that forbid filming), you may encounter an issue.
As a practical matter, you should never get in the way of a police investigation because you may be arrested. If an officer asks you to back up or get out of the way, you should do so. An extremely common charge that we see clients face is “resist/delay/obstruct a public officer” (click here to learn more about this charge). If a police officer feels that you are unlawfully interfering with his investigation, he may arrest you. Sometimes it is easier to prevent an arrest than it is to clear up the charges in court, even if you feel you are in the right. Please use your best judgment when determining how to behave during police encounters.
Gilles Law has criminal defense lawyers licensed to practice both in North Carolina and South Carolina. They practice state criminal defense and federal criminal defense.
We hope this helps provide some insight into our world. Always remember that you do have rights when encountering police officers. If you have specific questions, contact a criminal defense lawyer.