Involuntary confrontations with the police are a source of great confusion and anxiety for many people. The 6th Amendment to the U.S. Constitution guarantees the right to “the assistance of counsel,” but an attorney is typically not present or immediately available at the time you are stopped by the police. This week’s column discusses your rights and responsibilities when you have been stopped or are being sought by the police. This column is not a substitute for advice and counsel from an attorney regarding your particular situation.

The first consideration is not to make the situation, whatever it is, worse. If you are in a vehicle, it is a Class B misdemeanor to willfully fail or refuse to obey a police officer’s visual or audible signal to stop, to increase your speed or otherwise flee or attempt to elude the police. Conviction of “fleeing or eluding” will also result in a 6-month suspension of your driving privileges. If you speed more than 21 miles per hour over the speed limit and cause bodily injury or property damage in excess of $300 while attempting to escape, the offense becomes a Class A misdemeanor with a mandatory revocation of your driving privileges upon conviction.

It is also a Class A misdemeanor, punishable by up to a year in jail and/or a fine of $1000, to knowingly resist or obstruct a person known to be a peace officer in the performance of any authorized act within his or her official capacity. “Resistance” can include any physical act for example, tearing your hands away from an officer who is attempting to handcuff you, or going limp when you are being arrested. The fact that the arrest itself is due to some mistake by the police or false accusation by a third party is not a defense to the charge of resisting a peace officer.

Obstructing justice, as by furnishing false information to a police officer with intent to prevent the apprehension of any person, in an even more serious offense, being categorized as a Class 4 felony, with possible incarceration of from one to three years in the state penitentiary. Striking or otherwise causing bodily harm to a person known to be a police officer while such person is engaged in the execution of any of his or her official duties including arrest or attempted arrest constitutes aggravated battery, a Class 3 felony punishable by imprisonment of up to two to five years.

As the above cited laws make clear, it is never a good idea to resist the police physically, or interfere with a police officer in the performance of his or her duty.

It is a different matter entirely whether in a particular circumstance one should supply information to the police, allow the police to enter into one’s home, apartment, dorm room, business, or automobile, or even speak to a police officer, beyond providing the officer with one’s name and address. (If you are driving your car when stopped, you have the duty, if requested, to step out of the car and/or produce your drivers license, registration, and proof of insurance.)

Under the 5th Amendment, guilty or innocent, you have the right not to speak with the police. If you so choose, you can talk with the police to assure them you had no involvement in the matters they are investigating, or for whatever reason you may have. If you do not want to speak with the police, ask the officer(s) if you are free to leave, and if you are told that you are, leave. You should also inform the police, and repeat it if necessary, that you do not want to say anything until you speak with an attorney.

The police at this juncture can arrest you if they conclude they have probable cause to believe you have committed a crime, or you alone. In certain situations, the police can also detain you to obtain certain non-testimonial evidence, such as a blood or breath test, or to secure a hand-writing sample, after which they must arrest you, or let you go.

If the police have taken you into custody or otherwise deprived you of our freedom of action in any significant way relating to the investigation of possible criminal activity, they are under a duty to inform you that you have a right to remain silent, that you have the right to have an attorney present during questioning, and that any statement you make can be used as evidence against you, the so-called Miranda warnings.

You can waive these rights, at which point your statements are admissible against you in court. Your waiver must be made voluntarily, knowingly, and intelligently, and you may have recourse later if this was not the case. Also, statements you make to the police when they are merely investigating a possible crime, and have not yet issued you the Miranda warnings, are also admissible. Jeopardy attaches whenever you speak with the police, not just after you have been arrested.

The 4th Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures….” It is unlawful for the police to enter your home, apartment, or dorm room, without a search or arrest warrant issued by a judge and based upon probable cause to believe that a crime has taken place or is taking place. An exception exists where there are “exigent circumstances” such as the hot pursuit of a person suspected of a serious crime, to rescue a person from serious harm, or where evidence of crime might be lost if the police are required to obtain a search warrant.

As with your right to remain silent, you can waive your 4th Amendment rights by consenting to the entry of your premises by the police. If you do not want the police to enter your premises, ask the officer(s) to produce a search or arrest warrant, and if they have none, tell them that you are not authorizing them to enter, and that if they do enter, it will be without your consent. The legality of the warrantless search, if conducted, will be determined later in a court of law. Except where exigent circumstances exist, the police must knock at the door of the premises for which they have a warrant, and announce that they have the authority and the intention to search the premises. If the police have a search warrant, they are entitled to enter your premises, with or without your permission, and can use force, of necessary, to gain entry.

Don Henderson

Lynn Richards

Students’ Legal Assistance