Your Rights When Pulled Over by the Police

As mentioned earlier, it’s important for you to understand your rights to reduce your risk of incriminating yourself. If you feel that a police officer is infringing upon your rights, be clear and assertive with the officer. However, never physically resist. Becoming hostile will only make matters worse, and even touching a police officer can get you tasered and result in a felony charge for assaulting an officer.

1. To remain silent

With the exception of required answers to certain basic questions, you have the right to remain silent under the Fifth Amendment to the US Constitution (aka “pleading the fifth”). This applies to both the driver and any passengers. Which questions must you answer? Those related to the identification of the driver and any passengers (e.g., your name and address). Outside of these, you have the right to say nothing. You can refuse to answer any questions about where you are going, where you are traveling from, what you are doing, your immigration status or your birth country. Note that if you wish to exercise your right to remain silent, you usually must say so out loud.

Use your judgment before invoking this right. Cops will likely get very irritated if you don’t answer their questions, and you will immediately draw more suspicion to yourself. If the officer has accused you of only a minor traffic violation, it may be easier to provide brief, respectful answers to put yourself in the officer’s good graces (and improve your odds of getting away with only a warning). On the other hand, if you feel as if you are suspected of a serious crime and at risk of getting arrested, strongly consider requesting a lawyer and exercising this right to shut your mouth.

2. To refuse unreasonable searches

Another right protected by the US Constitution—this time the Fourth Amendment—is your right to refuse unreasonable government searches and seizures. For traffic stops, this generally applies to the following:

• Search of your car: If an officer innocently asks to take a look in your car, you have the right to refuse. Unless (1) there is something illegal in your car that’s in plain view, (2) there is probable cause that a crime has been committed, (3) evidence from a crime is at risk of being destroyed or (4) you’ve already been arrested, police need a warrant or your consent to search your car. And because nothing good can come from this search (e.g., maybe a friend left an open beer in the backseat), it’s usually in your best interest to politely decline the search.
  
  
• Search of you and your belongings: Police have the right to perform a standard pat-down of your outer clothing if they suspect that you are carrying a weapon. Outside of this simple pat-down, however, you have the right to refuse a search of yourself and your belongings. If you are not under arrest and the police want to search through the items in your pockets, they generally need a warrant or your consent.

Similar to exercising your right to remain silent, refusing searches can irritate officers and push them to challenge you further, such as asking what you have to hide or why you are not cooperating. Remain respectfully adamant, and repeat your refusal if necessary.

3. To refuse unlawful detainment

You have the right to refuse detainment of yourself and your passengers without reasonable cause. If the officer has returned your documents but continues to ask questions, you have the right to ask if you are free to go. You can do this by saying “Officer, are you detaining me, or am I free to go?” If you are still not allowed to leave, strongly consider invoking your right to remain silent and requesting to speak with a lawyer.

4. To refuse sobriety tests

If police have probable cause to believe you’re under the influence of alcohol, they may ask you to submit to a breathalyzer, urine, blood or field sobriety test. You have the right to decline all of these. However, be careful before doing so. Most states have what are called “implied consent laws,” meaning you automatically consent to these tests when you get your license. If you refuse in any one of these states, you risk automatic suspension of your license and other penalties which vary by state. For this reason, do not refuse the breathalyzer if you are not intoxicated.

There’s a lot to consider in these situations (even if you’ve only had a drink or two), so be sure to refer to our separate post on what to do if you are pulled over intoxicated for more in-depth coverage.

5. To film the interaction

Even though more and more law enforcement agencies are requiring the use of body-worn cameras, it’s within your rights to take matters into your own hands and record your interaction with police offers. However, if you plan to do so, be aware of some caveats:

• You cannot physically interfere with the officer’s work. Do not impede the officer’s requests for your documents, and do not stand too close to the officers to obstruct their movements.
  
  
• Do not hide the fact that you are recording. In fact, many states require the consent of all parties involved for you to record a conversation. It’s best to be open and polite, saying something like “Officer, I’m not interfering. I’m recording this interaction under my First Amendment rights.”

As with asserting any of your rights, police may not respond well. Officers might unfairly challenge you, confiscate your camera or even arrest you for “failing to comply with their orders.” An arrest for recording police would be unlawful, but you should weigh the personal risks of arrest (including the risk that the officer may search you and your car upon arrest) against the benefits of continuing to record.