Stopped by a police officer? What should you do next?
In a previous article, Scaringi Law attorney Nichole A. Collins, who focuses her practice on criminal and family law, reminded us that mum's the word when it comes to encounters with police in possible criminal matters.
But what happens when you are stopped by an officer, either out on the street or in your vehicle?
Collins tackles two of the most common - and high profile - police situations that virtually anyone could find themselves on the wrong side of: The first is a so-called "stop and frisk" search by a police officer. The officer must suspect some kind of criminal activity in order to temporarily detain you to investigate further. The second common police stop is a vehicular pull-over for suspected DUI.
Once again, an officer's mere suspicion of a crime simply isn't good enough to arrest you in either of these actions, not without more evidence anyway. So during both of these types of stops, what the subject does and doesn't do could go a long way toward either protecting or ceding away one's rights under the law.
To make potential clients more aware of their rights, Collins takes a closer look at the legal circumstances surrounding these common brushes with police, which we all might experience.
Dos and don'ts of police pat-downs
Perhaps no police tactic has received more attention of late than "stop and frisk" searches. But the police pat-down of a possible suspect detained in the street has long been a part of the law enforcement arsenal. But it is important to know that suspects do have rights, even when an officer has the power to pat them down, looking for weapons, contraband or other evidence.
Collins reminds us that police just can't stop anyone and pat them down. Instead, the officer must harbor a reasonable suspicion of criminal activity to stop someone in the street for questioning and a possible pat-down.
This legal standard of 'reasonable suspicion' is a lesser standard than 'probable cause,' and there is no hard and fast definition of what constitutes reasonable suspicion. Thus, this police power is designed to give officers the ability to use their discretion when they believe criminal activity is afoot. A pat-down is a crucial part of this procedure. First, it protects the officer from someone who might have a weapon. Second, it can further confirm the officer's reasonable suspicion of criminal activity - the very reason the officer stopped the subject in the first place.
But the person stopped does have rights. Chief among them, the halted subject has legal protection against self-incrimination. So what the subject says and does during a pat-down can make all the difference in a criminal case, Collins says.
Pat-down's are an inexact science. Don't assist the officer by volunteering information
During an investigative detention, also known as a "Terry stop,'' an officer may place his hands lightly over a suspect's outer clothing to feel for concealed weapons. These searches are an inexact science, to say the least. It is one thing to feel around for concealed weapons. But what happens when the officer feels something that he suspects to be drug contraband? Often, the officer will ask, "What is this?''
But the subject has no duty to answer and incriminate oneself. So say nothing. It's your right.
"Often, the officer will not know with certainty based on the patdown alone what you have in your pocket,'' Collins said. "Admitting to contraband on your person is a mistake frequently made. You are not going to do yourself any favors by admitting to having illegal drugs on your person. You don't want to be uncooperative and defiant, but you must not be overly cooperative to the point of making an admission or giving a confession that can and will be used against you.''
Though an officer may think he feels something illegal, it's not enough for him to merely suspect. However, if the subject admits to carrying something during the pat-down, that subject has just removed all doubt and handed the state crucial evidence, Collins says.
"If you do have what the officer suspects and you admit it, you have just handed the officer probable cause on silver platter and given him enough reason to place you under arrest,'' says Collins, who also warns not to lie if asked about something felt by an officer. "If you lie about it, this can be used against you, too."
By remaining silent, or asking to speak with your attorney, you will preserve your right against self-incrimination and any unlawfully seized evidence can be suppressed if charges are filed against you.
"If the officer overstepped his or her bounds at the time they found the contraband, we will deal with the suppression issue prior to trial," Collins says.
"The pat-down is an investigatory search during a period of temporary detention. It is a less-intrusive procedure than a search incident to arrest. The pat-down is commonly used to gather information and confirm an officer's suspicions,'' Collins says. "The goal from my perspective in criminal defense work is for my clients not to assist the police officer in building a case. It is best not to admit whatever is in your pocket or your purse - unless, of course, you are innocent."
The dreaded DUI stop: Rights, duties and responsibilities
If there is a criminal defense cousin to the Terry stop and frisk, it is the vehicle stop.
Again, an officer just can't pull over anyone.
"An officer must have a legitimate reason to stop your vehicle and temporarily detain you," Collins says. "For example, an officer might stop a vehicle for driving across center line and the white line three times in a half-mile distance." While not proof that the driver is under the influence, Collins says it is a good enough reason for an officer to investigate further.
Driving a car that is out of inspection or registration or has a missing headlight or taillight is an open invitation to be pulled over at any time.
Once stopped, many DUI suspects make the common mistake of admitting to having, "Two or three drinks." Such an admission gives the officer reasonable suspicion to conduct further investigations as to whether you are under the influence.
An officer may first want the driver to undergo field sobriety testing along the roadside. Even to request a field sobriety test, the officer must have a reasonable suspicion, such as a smell of alcohol on the driver or red, glassy eyes.
Unlike a Breathalyzer or blood alcohol test, a driver can refuse to participate in field sobriety testing without penalty. It may also be a good idea to refuse.
"You can absolutely decline the field sobriety test without it being held against you," Collins says. "If you perform the field sobriety tests and you fail miserably, you very well might have just given the officer probable cause to arrest you for driving under the influence."
Sobriety tests no driver should ever refuse
If an officer believes he has probably cause to arrest a driver for DUI, the next step is breath or blood testing. Refusing one of these tests is a mistake, Collins says.
Refusing to take a breath or blood test refusal packs the same legal punch as being charged with the highest tier DUI charge -- that of a blood-alcohol count of .16 or greater. A first offense is an ungraded misdemeanor, one-year license suspension, incarceration of 72-hours to 6 months, a fine of up to $5,000 fine, and mandatory alcohol safety school and drug and alcohol (CRN) evaluation.
In other words, the stakes for refusing a blood or breath test after you have been arrested are huge.
"In their minds, people who refuse think if there is no blood or breath test to prove intoxication, it will be hard to convict me for driving under the influence,'' Collins said. "I would never advise a client to refuse to submit to blood or breath testing. If the officer pulled you over and arrested you for no reason, we can deal with the suppression issues at the proper time."
It all comes back to knowing one's rights - and what to do and not do when an officer stops you.
"If you are asked if you have been drinking and you have been drinking, that admission will absolutely be used against you. I don't want to advise anyone to lie," Collins says. "But you should never volunteer incriminating information against yourself. A statement that you had 2 or 3 drinks with dinner is an ad mission that you were drinking.
"Everyone in the world makes that statement, 'Oh I had two or three drinks,' as if that is the magic number. It doesn't work,'' she says. "What you don't want to do is volunteer or admit information that confirms the officer's suspicion that you have been drinking and driving. You have the right to remain silent, an admission against yourself will be used against you in court."
Bottom Line: If you are unable to answer a police officer's question truthfully without incriminating yourself, it is time to ask for your attorney. Once you invoke your right to counsel, the questions will stop and you will have gone a long way toward protecting your rights.
UPDATE MAY 2014: This article was featured on the abc27.com website. Click here to see the video clip.