Being arrested is a terrifying experience, especially if you don’t know what to expect. While every situation is unique, if you follow the guidelines below, you have a better chance of coming out of the arrest without surrendering any of your legal rights and (more importantly) will be as safe as possible. You must know what your rights are in order to exercise them and our goal is to help you develop that knowledge. You will not win an argument with a cop on the street. You have done your part if you have created a record that benefits you and if you have not given the police more evidence to use to convict you. The time to argue is in a courtroom.
Even if you have not committed a crime, you should understand that innocent people do confess to crimes they did not commit. There is no reason for you to expose yourself to criminal charges. Let law enforcement do their jobs, don’t do it for them.
As always, the information we provide in our blog is not legal advice. If you have a specific concern, please contact us directly. Note also that this post will only handle street encounters. Vehicle stops, how to handle law enforcement when you are in your home, and many other situations will be discussed in later posts.
If you anticipate that you will be charged or arrested in the future, contact an attorney to review your rights and discuss the situation. If you are proactive, you can protect yourself against many issues that others will run into. You can make a plan, think about the best way to respond, and have someone ready to go to bat for you when and if you are arrested.
Understand as well that some (not all) officers will see you exercising your rights as a threat and as you questioning their authority. When you exercise your rights, you do take on the risk that you will escalate the situation even if you do everything exactly as you should. It is more stressful in the short-term to exercise your constitutional rights. In our opinion, every citizen is obligated to understand and exercise their rights unless they have a good reason for not doing so. That being said, this is not an easy burden to bear.
Two pieces of information are important before we begin to walk through a hypothetical encounter. First, when we talk about de-escalation, be aware that officers will “step up” their encounter with you as it evolves. The easiest way to think about this is No Contact -> Voluntary Contact -> Detention -> Arrest. These steps are important, as you have different rights and responsibilities at each step.
So, let’s assume you’re walking near Capitol Park in Boise minding your own business. It’s a cool fall morning, so you’re wearing a black jacket and jeans. In this scenario, you are not carrying anything illegal. Nor are you carrying any weapons, as you left your trusty pocketknife at home. A Boise Police officer approaches you and says, “You, in the black jacket. Stop!”[i]
- Once law enforcement has made contact with you, your goal is to deescalate the situation. You do this by remaining calm, keeping your hands visible, and making sure the officer does not see you as a threat. Sudden movements, yelling, mumbling, looking around nervously, looking the officer directly in the eyes for too long, appearing intoxicated, and a whole list of other actions or attributes could make you appear to be a threat in the officer’s eyes. Be calm, be cool, be collected.
- At this point, you have two options.
- If you want to speak to the officer (maybe you saw a crime and he’s stopping you to ask you what you saw), go ahead and do so.
- Your other option is to determine if you are free to go. Let’s say that once he saw your face, the officer realized that they were looking for another person in a black jacket, not you and may decide against detaining you. They may begin to ask you questions that you’re not interested in answering. If you’re not sure if you want to answer, don’t answer. Too many people talk themselves into trouble because they are trying to be polite. To determine if you are free to go (and are therefore not being detained), simply ask, “Am I free to go. If you are, calmly walk away.
- Assuming you are detained, it is probably a good idea to tell the officer, “I am going to remain silent, I want to speak to my attorney, and I do not consent to a search.” Speak clearly and loudly, but be polite and don’t yell.
- Ingrain that language into your soul. Both pieces are important and you’re going to have to get them out under pressure.
- If you do not invoke your right to an attorney after invoking your right to remain silent, you are leaving yourself open to “reapproach,” meaning that they can come back and ask you questions after a reasonable time has passed.
- Many states require you to identify yourself if you are being detained or arrested. Even if a state does not require you to do so, you may want to identify yourself if it will do you no harm.
- We will talk about Terry stops later, but know that if you are detained, the officer may pat you down to ensure you have no weapons on you.
- At this point, the officer will decide if you are now free to go or if they want to arrest you. Either way, you need to continue exercising your rights. What does that mean? Stay quiet. Most officers will let you be once you
- If you are arrested, continue to remain silent regarding the facts of your case.
During this entire time, you should also:
- Never lie (this can lead to other charges);
- Stay calm; and
- Comply with orders (as opposed to questions).
When you speak to your attorney, take the time to explain the arrest with them. Until then, remember the details.
[i] This verbiage is probably an order, which you should abide by. Officers often ask questions in tones that may seem to you to be an order. If you comply, they can later argue that you consented to whatever action you thought you were ordered to take. You are not obligated to comply with a question. If you are not sure if the officer is giving you an order or asking you to do something you are not obligated to do, politely ask the officer if they are ordering you to take the action. If they are, you must comply, even if the action violates your rights.