We place a special emphasis on “liberties” because we need to start with the premise that your constitutionally protected rights belong to you but you do not decide when you use them. Your “liberties” will be exercised for you at a future time and will be invoked for you long after your “liberty” has been violated. This concept extends across a broad variety of situations including a police encounter.
Our United States Constitution establishes that every person in America has basic human rights: Freedom of speech, of religion, freedom to vote, freedom to own weapons, among others. In the criminal context the 4th, 5th, 6th, and 8th amendments protect you from unreasonable searches and seizures, making incriminating remarks, ensure you have an attorney, and protect you from cruel and unusual punishment respectively. Each of these amendments is triggered at different times and in different contexts within the criminal procedure. This article will help explain how you should behave if you are encountered by an officer in order for you to properly assert your rights and do so in a safe manner.
In Texas, a police officer may and can arrest you for ANY offense including a Class C Misdemeanor except speeding and open alcohol container in the car. That means that an officer has broad discretion in determining whether or not you will be arrested and taken into custody until a court can determine whether or not you committed a crime. That means you can be arrested for anything, from running a red light to committing murder.
A common scenario that plays out in a police encounter is the regular traffic violation. You run a red light. See the red and blues and hear a siren. You pull over on the right. What you do next will set the tone for how the rest of the encounter goes. Lower your driver’s side window so the glass is under your eye level. Turn down any loud music. Keep both hands on the top of the steering wheel. If it is dark, turn on your car’s interior light. When the officer approaches you, make eye contact and maintain a friendly and respectful demeanor. Respond formally using Sir or Mam. The officer may tell you why he stopped you or may ask you to respond. At this point you can admit to the traffic violation or simply deny knowledge of your violation if in fact you do not know why you were stopped. Do not argue with the officer, now is not the time. The officer will ask you for your driver’s license and most likely auto insurance. You are required by law to give him those documents, if you have them, and to identify yourself truthfully. Giving a false name or date of birth exposes you to further criminal charges. At this point the officer may write you a traffic citation requiring you to show up to court at a later date. The officer may also simply give you a warning and send you on your way.
During the above scenario the police encounter may start evolving into a criminal investigation. The officer has the authority to enforce our laws.
That authority allows him to ask you questions if he suspects you have committed a crime. He is not required to tell you what crime he suspects you have committed, therefore you do not have a legal right to know why the officer wants you to answer questions or why he wants to speak to you outside of your car.
At this moment do not get frustrated or angry. The officer can ask you to get out of the car and you should comply. This may or may not be a lawful detention, but you are not trained on what the law is and you arguing with an officer is not going to help.
If once outside the car, or even if you remain inside the car, the officer begins to question you, you can and should invoke your 5th amendment right to remain silent. You are under no legal duty to answer any questions beyond those about your identity. You can respectfully say, “Officer, I wish to remain silent. I do not have any information to give you. If I am not free to go, then I wish to speak to my attorney.” The officer may pry and want you to speak to him. He may even promise that he can make this go away if you just speak to him. Officer have no authority to plea bargain on a case, that rests solely with the prosecutor. You will never be able to talk yourself out of an arrest if the officer has already made the decision to arrest you. However, you can dig yourself into a deeper hole the more you speak to the officer.
If the officer has decided to arrest you, please comply and cooperate with the arrest without violence, screaming, anger, even if you feel that the arrest is not unjustified. Let the officer bear the burden of justifying your arrest in front of a judge.
Being encountered by an officer can be a scary situation. You need to remain calm and collected. What will follow can be as smooth as you make it. Most officers care about their communities and most treat even those they arrest with respect.