Note: This post is for informational purposes only and not for the purpose of providing legal advice. Contact an attorney for advice with respect to any particular issue or course of action.
When you get behind the wheel, you have certain rights. You have the right to tell the backseat driver to shut his pie hole, the right to get PO’d at the grandma in the fast lane and the right to curse up a storm when the check engine light makes an unwelcome appearance.
But this post focuses on more important rights—those you have when interacting with the police. These rights, which are backed by the Constitution and other laws, are meant to keep you safe, protect your personal property and prevent you from incriminating yourself. Yet even though the police are aware of these rights (or at least they should be aware), the police may test your ability to assert your rights in order to gather more information to solve or prevent crimes. Or, alternatively, they may dishonorably disregard your rights altogether.
Thus, without knowledge of your rights, you put yourself at a greater risk of being charged for a crime that you could have easily avoided. For your own safety, wellbeing and freedom, lock these up in the back of your brain.
Rights of the Police
Just as you have rights when interacting with the police, the boys and girls in blue have their own rights as well. Be aware of these rights so that you can respectfully abide by their requests as necessary.
1. To request identification, registration & proof of insurance
The officer can request your identification, registration and proof of insurance at a traffic stop. You must comply with this request.
2. To ask identifying questions
Police have the right to ask you and/or your passengers questions to confirm the identity of each person in the car. Any questions after this initial dialogue will generally be an effort to make you incriminate yourself or others. While the officer has the right to ask certain questions beyond those related to identification, you also have the right to remain silent—more on this below.
3. To order passengers in or out of the car
Police officers have the right to order you and/or your passengers out of the car (and also the right to order you back into your car). If instructed to get out of your car, do so in a calm and respectful manner. Anything you can do to be courteous and non-threatening to the officer will help you get back on the road quicker, safer and potentially ticket-free.
4. To pat down passengers out of the car
If an officer has ordered you to get out of the car and has reasonable suspicion that you have a weapon, he or she has the right to check you for weapons with a quick pat-down search of your outer clothing. Upon feeling any weapon-like object during the pat-down, the officer has the right to reach in and grab it. Said officer also has the right to seize any contraband identified during an appropriate pat-down.
5. To search your car in limited circumstances
Police have the right to search your car in the following circumstances:
- If you provide consent (don’t do this)
- If you have something illegal in plain view (e.g., open beer or wine bottles, joints, weapon)
- If there is probable cause that a crime has been committed
- If evidence from a crime is at risk of immediately being destroyed
- If you have already been arrested
- If they have a warrant
6. To perform sobriety tests
If police have probable cause to believe you’re under the influence of drugs or alcohol, they generally have the right to request a breathalyzer test, chemical test and/or field sobriety test. Oftentimes, police can prove probable cause based on their observations of your erratic driving, slurred speech or strong odor.
7. To issue commands to ensure safety
Police can issue lawful commands to ensure the safety of the officer and those in your car. For example, an officer has the right to request that you move your car to a safer location.
Your Rights as the Driver
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.
Your Rights if Arrested
Whether on TV, in the movies or at any party college after midnight, you’ve heard it before:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
These famous words are your Miranda rights, which law enforcement generally must state when you are taken into police custody and about to be questioned. Here’s a rundown, including some others not explicitly stated in the Miranda warning:
1. To remain silent
See above, and remember that you still need to provide your name and basic identifying information. But nothing else.
2. To have an attorney
Pretty clear based on the Miranda rights, but you always have the right to an attorney—whether personally hired by you or government-appointed if you cannot afford one. When you invoke your right to remain silent, also say that you wish to speak with a lawyer. All questioning should then stop until your lawyer is present.
3. To a local phone call (usually)
You generally have the right to make a local phone call within a reasonable amount of time after you have been taken into custody. The police cannot listen if you call a lawyer, but they can (and usually do) listen if you call anyone else. In certain cases, you may be denied this phone call (e.g., if you are extremely violent or dangerous) or be provided additional calls (e.g., if you have children and need to arrange childcare). In any event, do your best to memorize any important phone numbers ahead of time.
4. To an itemized receipt of your possessions
If police seize any of your personal belongings or property during an arrest, they generally are required to provide you with an itemized receipt of these items that will be held for you. While oftentimes you will receive these items when you are released from custody, how and when you get your property back can vary depending on a lot of circumstances (e.g., police may hold certain items as evidence while a case is pending).
5. To a timely booking
You have the right to be “booked” (i.e., the formal documentation of a charge against you) within a reasonable amount of time. If you are detained more than several hours without booking, your lawyer may obtain a writ of habeas corpus, which is a fancy term for court order instructing law enforcement to bring you into court so that a judge can determine whether you are being held unlawfully.
Rights of Your Passengers
Passengers in a car have the same rights as the driver (see “Your Rights as the Driver”) as well as the following additional rights:
1. To ask to leave
If you’re a passenger in a car pulled over by the po-po, you have the right to ask if you’re free to leave. This request may be denied and even draw suspicion from the officer. However, if the answer is “yes,” leave the scene silently.
2. To remain excluded from traffic violation
As a passenger in a car pulled over for a traffic violation, you have the right to not face possible tickets or citations because you were not driving the car. However, depending on the state, you may receive a citation if you do not wear your seat belt or otherwise break a law.
3. To refuse questions about the incident
While you too must provide the officer with your name (if asked), you have the right to remain silent and can decline answering questions about the traffic incident. It could make for an awkward drive home if you unintentionally incriminate the driver.
You now know your rights and plan to assert them, but what if the police disregard them? Unless you’re stranded on an uninhabited island and conversing with a volleyball, it’s no secret that relations between the police and certain communities aren’t great right now. While the majority of cops are trustworthy individuals who honorably abide by their motto to protect and serve, you need to be prepared for any who do not.
What if the police search your car without your consent, any probable cause or a warrant? Or maybe the police unlawfully arrest you for filming them. Or say the police get violent without cause. What now? Dealing with unethical and/or egotistical cops can be a nightmare, but follow these steps to make the bad situation as quick, safe and easy as possible:
1. Verbally object
If an officer moves to infringe upon your rights, timely and respectfully object to the officer’s action. For instance, if an officer pursues to search your car without your consent, say “excuse me officer, I do not consent to a search of my car under my Fourth Amendment rights.” This refusal may not stop the officer, but doing so can prevent the search and benefit your case in any later legal proceedings.
2. Deescalate the situation
Even if you act well within your rights, egos and pride can take over and escalate the situation quickly. If asserting your rights turns into an argument, violence or the officer calling for backup, calm down and deescalate the situation. You need to weigh the benefit of standing up for yourself against the potential downside of getting hurt or arrested for a more serious crime. Generally, however, it’s in your best interest to follow orders and not resist. Exhibiting hostility or resisting commands are easy ways to get yourself injured or even killed. Reduce risk to yourself now, and take legal action later.
3. Document the interaction
Filming the interaction can produce solid evidence of police overstepping their bounds. Regardless of whether you record the interaction or not, immediately write down everything you remember about the encounter—the officers’ names, badge numbers and patrol car numbers; any use of weapons; contact information of any witnesses; etc. If you suffer any injuries, seek medical attention and take pictures of the injuries. This information will be important if you file a complaint or to protect your rights in any subsequent legal proceedings.
4. File a complaint
If you’re able to identify the officers’ agency, file a formal complaint with that agency’s internal affairs division. Include the information stated above, and you typically can file anonymously if you wish.
5. Consider involving a lawyer
Good lawyers can be expensive, but they can also be your best friend in these situations. Attorneys are particularly important if you plan to sue for police misconduct or fight the charges in court. Consult an attorney to determine whether this route would be best for you.
Now go be a good citizen. Be assertive, be smart and be safe.