Am I being Detained?

There are 3 levels of civilian contacts with police

CONSENSUAL ENCOUNTER

No evidence needed to initiate

A police officer can walk up to anyone he encounters in a public place and begin talking with them
They cannot require you to produce identification
They cannot search you without your consent

You are free to leave

DETENTION

Reasonable Suspicion required:

An officer must have enough evidence that he can articulate why he believes a crime may have been committed and that you are the one who did it

In order to stop you: When the red lights come on behind you, when the officer verbally orders you to stop or stay where you are, or come over to him, you have been detained

He can search you (also known as a Terry Stop and Frisk) but only to determine whether you are carrying dangerous weapons

You are not free to leave. HOWEVER, the officer can not keep you longer than absolutely necessary to complete his investigation as to whether you have committed a crime.

ARREST
Probable Cause or a Warrant required

There is no set standard for what constitutes Probable Cause. It is certainly not the standard of Beyond any Reasonable Doubt. But any judge will agree that it's more than suspicion.

You are not free to leave

If you have been arrested, you will either be issued a citation to appear in court or booked into jail.

If you have been arrested, that means you will most likely have a charge filed against you. If you do not show up at the court date given by the officer, the jail, or your Bondsman, you WILL be taken into custody.

Summary

There is no single best way to assert your rights in the field.

Politeness and respect may help, but remember that the more compliant you are, the more officers may take advantage of your acceptance of their authority and obtain evidence against you.

You may consider asking the officer if you are free to leave*

*Pro Tip - this is not as effective a deterrent to their illegal conduct as you may think. A police officer who is determined to ask you questions and develop Probable Cause to arrest you, will almost always tell you that you are being detained and that you are not free to leave.

Never physically resist an officer's actions, unless the officer is using unreasonable or excessive force dangerous to human life. Remember, you will be judged after the fact on this one, and it's hard to get it right, so don't rely on your own opinion of whether the officer's force is excessive. Also the amount of force used to resist will be judged as well. The amount of force allowed to protect yourself from an officer’s use of unreasonable or excessive force is only that degree of force you actually believe reasonably necessary to protect yourself, and in any event no more than reasonable under those circumstances. If this seems confusing, it's because it is; and deliberately so. You think the cops and judges and DAs want people to know they can use reasonable force to resist lawful arrest?

Refuse any and all searches, no matter what. There are many ways to do this assertively, legally, yet courteously. If the officer has a basis to frisk you based on reasonable suspicion, he will. If the officer has reason to search you or your vehicle, or your house, based on probable cause, he will. Police generally only ask to do things that are not otherwise legally entitled to do. Why would you give them a chance to do something they already know violates your Fourth Amendment Constitutional Right to be free from unreasonable searches and seizures without a warrant?

Field Sobriety Tests are used by officers to determine whether they have Probable Cause to arrest you. They will also be used as evidence against you in your trial. Don't give them additional evidence to prosecute you or else you are doing the DA’s job.

When they check your eyes, they are looking for bouncing of the pupils. However anyone familiar with the physiology of the eye will tell you there are many reasons why a person might display symptoms that are consistent with the officer's opinion of who's under the influence.

When they make you walk a straight line, they are having you perform a test that is almost impossible to pass under ideal conditions, and under the pressures of potential arrest and a possible uneven surface, will be as good as sending the officer an invitation to arrest you.

The one leg stand is just a ridiculous test. Practically no one can do this one even sober as a judge (so to speak).

None of the other tests they might have you do (Rhomberg, hand pat, alphabet) are standardized tests. They have no science behind them, just the officer's guesses as to who might be impaired from what they learned at the Police Academy as pre-rookie status, from another officer who spent his career arresting people he thought were DUI.

Ways to reduce your chances of getting stopped in your car.

First, be sure your registration is current. Some officers spend half their time on patrol just looking up license plates and checking on their registration. They will even try to match up the gender or race of the owner and compare it to the person driving. One case involved officers who said they looked up an average of 75-80 license plates every shift! In addition, there are electronic license plate readers out there (you're not supposed to know this), which track vehicles on a completely automated basis.

Second, make sure your equipment is in good working order. Any experienced DUI attorney will tell you that most of the cases they see involve headlights not being on, a burned out taillight, brake light or license plate light, or even a trailer hitch blocking the license plate!

Third, drive safely. Many acts that may not be illegal are clues for officers to stop you, especially at night. A common sign of DUI that officers look for is a wide turn

Fourth, don't get into arguments with other drivers! This may seem obvious, but is a common way officers develop cause to pull you over is based on a so-called citizen tip. And this tip is as likely to be a disgruntled other driver as a concerned citizen. Someone can call 911 and say your drunk and the cop call pull you over even if you’re driving just fine. Amazingly, the courts have allowed this.

Fifth, obey speed laws and traffic control devices. Another obvious one, but officers often use minor violations as an excuse to pull people and investigate possible other crimes, such as DUI, or even drug or weapons possession.

Of course, following the law is the best way to prevent getting pulled over. But it's not always enough. Police officers will use any excuse to stop someone they feel "needs stopping." And they won't stop following you until they see something they can "articulate" to the judge that you did wrong.

Another Pro Tip - If an officer wants to question you, ask for a lawyer, and do it deliberately and firmly. Even saying you want to be silent may not protect you from being questioned. But asking for an attorney will ALWAYS stop the police dead in their tracks, so to speak.

Last Pro tip - DO NOT LIE TO POLICE. Not only may it be a separate charge, but it will be used against you to prove you guilty in court at trial. Imagine if you were about to be released for lack of Probable Cause and then an officer had reason to believe that you had lied to him interfering with his investigation? Up until that point you were not guilty of anything, then all of a sudden you're in custody under arrest with a court date and a criminal charge. Now if you're lying about your name or date of birth ‘cause you got warrants, then you're already in trouble, I can't help you there. Not in the field anyway. Call me when you're out and we'll get something together.