Examples of Unwanted Police Contact and How to Respond

Written by attorney John Owen Moeller | Mar 15, 2015

Unwanted police contact is likely to occur. If you do not prepare for that encounter it is likely the encounter will be prejudicial to you. Typical encounters are described in this guide.

1. Stop and Identify
Can a police officer require that you identify yourself verbally or produce an ID? If you are driving a car on a public highway or trying to board a commercial airplane, then you are required to produce identification. Non-citizens are generally required to produce immigration documents when requested. What if you are a passenger in an automobile, sitting on a park bench or walking on the sidewalk? Some states have "stop and identify" laws. The Supreme Court of the United States has considered the legality of an officer's demand for identification. Iowa does not have a "stop and identify" statute. A police officer, like any other person, can approach you and ask questions. Unless the police officer observes suspicious circumstances that justify an investigatory stop or detention (a "Terry Stop") you are not required to respond to the officer or remain in the officer's presence. If you are a suspect you should state, "I choose not to answer questions" and ask "am I free to leave." If you are, calmly leave. If the officer says you are not free to leave, ask "why"? "What crime am I suspected of"? Then ask to leave again. If the officer can legally justify to a court conducting an investigatory stop, detention or frisk for weapons, the court may allow the officer to detain you and request that you identify yourself. In circumstances where identifying yourself may incriminate yourself you probably have a right to refuse to identify yourself. Identifying yourself is usually just verbally stating your name. You generally do not have to produce identification or state your date of birth or produce an ID or license. Remember that officers are very skillful at imagining circumstances to try to continue to detain and investigate. Whether identifying yourself or producing identification will end the officer's detention and investigation is a difficult judgment call. My recommendation is to give the officer as little information as possible. Tell the officer you choose not to answer questions. Continue to ask if you are free to leave. Continue to ask for an explanation why you are not free to leave. Stop the verbal and physical encounter as soon as possible. The longer you engage in this cat and mouse game with the officer the more likely it is you are going to end up in jail. See the case Hiibel v. Nevada, 542 U.S. 177 (2004) for an interesting and readable opinion about this topic. A similar Iowa Supreme Court case is State v. Smith, 683 N.W.2d 542 (Iowa 2004).

2. Vehicle Check Points
I saw a video of a driver at a check point who had his driver's license, vehicle registration and insurance card in a baggie with a note "I choose not to answer any questions." "Am I free to go?" He placed the baggie tied with a string outside the window of his car and rolled the window up as he approached the check point. Now the officer cannot claim he smelled an odor of alcohol or that the driver's speech is slurred. The officer looked through the documents and the note and waived him through the check point. As a practical matter, you are probably not going to be this prepared for a check point, but I recommend the same approach. Open the window just enough to hand your license, registration and insurance card to the officer. Tell the officer you choose not to answer any questions. Tell your passengers not to answer any questions. Ask if you are free to go. If not, ask what crime you are suspected of and why. Try to make the officer state his reasons. Request your release. Do not answer questions. Do not consent to search.

3. Detention for Investigation - Are you free to leave?
An officer can approach you in a public place just like any other person and ask your name, what are you doing, where you were going or whether you have any weapons, drugs or money. An officer can ask these questions without a warrant and without having any reason to suspect, detain or arrest you. You are not required to talk with the officer any more than you are required to talk with a stranger on the street. The legal issue presented is whether the officer has valid articulable reasons to make an investigatory stop (a "Terry Stop") to detain you to question, frisk or demand identification. Answers are not required but failure to explain whatever circumstances "justify" the Terry stop might allow continued detention leading to an arrest. How you respond to this type of contact may determine if you are arrested or if there is sufficient evidence to convict you. A simple traffic citation can turn into a drunk-driving offense or a search for controlled substances. A stop and frisk might lead to drug or weapons charge. The officer is trained to look for and ask questions to obtain incriminating statements and evidence. The officer will try to obtain your "consent" to search your person, cell phone, automobile or even your home. Be cautious. Officers are trained to trick you into "consenting" to a search. Do not expect a question "may I search your home, car, cell phone, purse or belongings." The officer will state, in a commanding voice, "I need to" or "I have to" frisk you, search you, search your home, etc., and then end the sentence with "okay" or "do you mind?" If you answer "yes" or "no" your answer is not clear, and the officer will tell the judge that either "yes" or "no" was a consent to search. Opening the door to your home or hotel room after the officer knocks and yells "police, open up" will be claimed by the officer to be permission, an invitation to enter your home. Opening the door to the hotel custodian or delivery driver will be the excuse for the police to step inside and claim you invited them by opening the door. Do not even open the door unless they show a warrant. Talk through the door. Clearly state that you are not consenting to any search without a warrant and not answering any question without a lawyer.

4. Expanding or Extending The Stop
Officers are trained to "expand" or "extend" a routine traffic stop or encounter into a search or investigation for drugs or evidence of other crimes. After the ticket is issued anticipate questions from the officer "Do you have any drugs, weapons or large amounts of currency?" Where are you going? Where have you been? Expect the officer to ask, "Do you mind if I search?" What does it mean if you respond, "No"? No, you don't mind, or no, don't search? You must say, I object to any search or continued detention. Am I free to leave? If not, ask why. If you aren't free to leave, then tell the officer you choose not to answer any questions and ask to speak to a lawyer.

5. Knock and Talk
It is now a customary police practice for an officer to show up at your home or hotel room unannounced for a "knock and talk." The officer does not have a warrant or even probable cause to conduct a search or require you to open the door. Don't open the door. Tell them you choose not to answer questions. Tell them to contact your lawyer if they need additional information.

6. Request to Come to the Station.
The police might request in person or by phone that you to come to the station to talk about some vaguely described incident, perhaps an accident or someone else. They might "offer" to take you in the squad car. You are not required to go meet with a police officer or any government agent unless you have received a subpoena from a court. Insist on a clear explanation who you are meeting and the purpose of the meeting. If you might be a suspect, then tell them you choose not to answer any questions and contact an attorney and have the attorney contact the officer. Do not go to the station.

7. RECOMMENDATION-NEVER TALK WITH THE POLICE IF YOU ARE A SUSPECT WITHOUT AN ATTORNEY
If you are a suspect or person of interest, the police are talking to you to see whether you will admit something to justify detaining or arresting you. You will most likely be making the case against yourself. If they had enough evidence to arrest you, they probably won't waste time talking to you. Talking to the police may make the difference whether or not you are arrested or if there is enough evidence to convict you. As a practical matter, you will not talk your way out of an arrest. They won't believe you. Your "denial" will likely be used against you at the trial. Police are experts at pretending to have fingerprints, DNA, witnesses and other evidence that probably does not even exist to trick and trap you. They are investigators trained to use psychological coercive methods to obtain harmful statements. They do get innocent people to make confessions and harmful statements. You are just another experiment to see if they can get you to confess or at least make harmful admissions. You don't have a chance. If you are guilty and prepared to admit it, you should not talk to the police until your lawyer has a chance to negotiate an appropriate plea agreement. Save your confession as part of the plea bargain. If you are innocent, then wait to explain the circumstances to a jury or judge. You aren't going to change the police officer's mind that you are guilty. An officer who thinks he has a certain case against you might question you to obtain evidence of other crimes by you or by other persons. If this assists you, and you want to cooperate it should be done at a later date with the assistance from an attorney and a clear agreement of the prosecutor. What you think is "cooperation" the police will call a confession. Do not think that you can negotiate a get out of jail pass with the officer. The prosecutor has authority and discretion concerning prosecution of criminal matters. A police officer has little discretion concerning the arrest or case outcome unless approved by the prosecutor. The officer cannot make a plea arrangement. If the prosecuting attorney does not agree, then whatever arrangement, you think you made with the police officer will not be honored. Police officers are also very good at making promises that are not meaningful. For example, the standard "promise" that it will "go better for you" if you tell the truth or corporate. What does that mean? Whatever it means; it is not an enforceable plea bargain. If you are a suspect, you should never attempt any explanation or statement to the officer. You should never consent verbally or in writing to any search of your person, cell phone, auto or property. Don't give passwords, codes or combinations to the officer. I don't care if the officer seems like is a nice guy or you think he will let you go. You should tell the officer you choose not to make any statement or answer any questions as allowed by the 5th Amendment. Tell them you want to consult with an attorney before making any statements or consenting to any search. How you respond to the initial police contact might determine whether you are arrested or whether there is enough legally obtained evidence to convict you. This initial and usually unexpected contact is a critical stage, and the police officer has the advantage. Any statement you make, even your complete denial, is going to be used against you. Making a false statement to police might result in your prosecution in some states. There is never a requirement that you answer any question from a police officer.