Police Encounters: Am I Under Arrest?

During our lives, it is not unusual, on occasion to be subjected to a police encounter.  As nerve wracking as it may be for some of us, knowing your rights and asserting those rights may mean the difference of sleeping in your own bed or a cozy cot provided by the county jail.

There are three types of police encounters and by knowing the differences, as well as the rights given to you by the US Constitution, by each encounter is imperative.  The three types of encounters are: Consensual Encounter, Investigatory Stop and Arrest.

Knowing your rights is so important because often, in a matter of minutes a consensual encounter can rapidly progress to an investigative stop then ultimately an arrest.  It goes from a conversation you can merely walk away from to a situation where you are hand-cuffed and placed in a patrol car.

A consensual encounter occurs when a police officer approaches an individual and the officer initiates a conversation.  It does not involve force, lights and sirens and no verbal police commands are used.  It does not need to be prompted by a suspicion of an occurrence of crime.  It could merely be the officer asking the person to produce their identification, or why they are at that particular location.  The officer may also ask the individual to consent to a “pat down” or consent to search pockets, bags and purses.

However, during a consensual encounter, that is the officer has no basis to believe a crime was committed, in the process of being committed or is about to be carried out, then the citizen has no legal obligation to produce/present identification, answer any questions and does not have to consent to the search of his person or effects.  In other words, the citizen is free to simply walk away.

The next type of police-citizen encounter is the Investigatory Stop or a “Stop” (Terry Stop).  The main thing to remember with a “stop” is that the police officer may briefly detain (or seize) a person (suspect) if the officer has a “reasonable suspicion” that the person has committed a crime (or is committing a crime or is about to commit a crime).

Remember it must be a “reasonable suspicion” not a “mere hunch” or a “bare suspicion” that criminal activity may be occurring.  During this type of encounter you do not have the right to walk away.  You do not have the right not to identify yourself.  However, you do have the right to tell the officer that you do not want to speak to him and do not wish to answer any questions.  You have the right to remain silent – you should always assert that right when dealing with law enforcement.

After detaining you during the investigatory stage, the police must either let you go or arrest you, if they find probable cause that a crime has been committed.  Thus, the last level of police-citizen encounter is the arrest.

An arrest is effectuated by physically restraining you and using legal authority to indicate to you, the citizen that you are not free to leave.  Whereas to detain for an investigation the officer needed reasonable suspicion to make an arrest the key is probable cause.  Probable cause is a stronger standard than reasonable suspicion because it requires facts or evidence that would lead a reasonable person to believe that the suspect has committed a crime.

Probable cause is the standard for making an arrest, searching personal property or obtaining an arrest warrant.

So as you can see it is very easy for a consensual encounter to result in an arrest, when all you had to do was just keep walking.

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