Another recent post sparked a comment and question from a visitor to my site. He asked, “What orders of action can I refuse and what orders of actions am I required to perform?” I get asked this question in various forms all the time.
The answer depends on what your legal status is at that time. There are three main levels of police interaction: A consensual encounter, a detention and an arrest.
In a consensual encounter, the police are not required to have any evidence or legal justification to contact any citizen they want to. The key point is that the person the police are contacting must be free to leave. If the police do anything that suggest you are not free to walk away from them, it is not a consensual encounter. They can ask any question they want, ask for consent to search you, your car or your belongings. They can ask for your name. What’s important for you is that you have every right to refuse to engage. Sure, they can walk up to you and ask what you’re up to. But unless they have enough evidence to detain you, you are free to walk away and free not to answer any questions. If it is truly a consensual encounter, they could ask for your name and you could tell them it’s Mickey Mouse. That is not against the law during a consensual encounter. If for any reason, you don’t feel like talking with them or just want to leave, ask them if you’re free to go. If they say yes, then you can walk away. If they say no, then they have just turned your interaction into a detention.
A detention allows the police to briefly hold someone for investigation purposes. They must have enough information or evidence that criminal activity is occurring and that you are somehow connected to be able to detain you. During a detention, you are not free to go. The classic example is a traffic stop. When the red light goes on, you’re required to pull over and stop. Clearly, you are not free to go and are detained. Similarly, an officer that’s investigating a crime of some sort that orders you to sit on the curb has detained you. Orders to stay put, demands for identification, holding your license or property and not giving it back, handcuffs or sitting in the back of a patrol car are all classic signs of a detention.
How long can you be detained? The court decisions say that it is for a “reasonable” period of time to allow them to investigate whatever crime you were detained for. For example, if you were pulled over for a Vehicle Code violation of some sort (a broken tail light, for example), the officer could detain you just long enough to carry out the purpose of the stop – to get your license, registration and proof of insurance and issue a ticket. Of course, if they smelled something or saw something in your car, they could justify a longer detention to investigate whatever they discovered during the initial stop. Unlike a consensual encounter, you do have to cooperate to a degree with the investigation. If you are detained, the “My name is Mickey Mouse” answer won’t work. You are required to give your true name during a detention.
During a detention, they police are not required to give you your Miranda rights. You still have a right against self-incrimination under the Fifth Amendment at any time. That doesn’t go away just because you’re only detained and not arrested. The difference is that the police are not required to read you your rights before questioning in a detention. For example, if you were stopped for a broken tail light and the officer smelled alcohol, you would likely be detained for a DUI investigation. I’m positive they’d ask you if you had been drinking. If you say yes, you’re incriminating yourself by admitting having alcohol in your system. As I wrote here, you are not obligated to answer the questions. Yes, you must give your true name and necessary documents (license, registration, etc.), but you do not have to answer questions. If you know your rights and choose to use them before the police are required to warn you, you’re one step ahead. This applies not only in a DUI situation, but to any police detention. You are absolutely not required to answer any questions other than about your identity. Even though they haven’t warned you of your Miranda rights and the right to remain silent, you can still use those rights. If asked any questions other than your identity, you can decline to answer. “I would like to consult with my attorney before answering any questions.” The police are left with a choice: allow you to consult with me or to make a decision to arrest you. They’d better be sure they have enough evidence to arrest you though, or any subsequent evidence may be thrown out as well as putting themselves in danger of a false arrest lawsuit.
What about participating in investigation procedures? You cannot do anything that willfully resists, delays or obstructs the officer in the performance of their duties. Declining to do a field sobriety test designed to gather evidence against you is not resisting or delaying them. You’re simply choosing not to assist them in trying to get enough to arrest you. Certain procedures during a detention, such as having a witness make an identification in the field, you are not able to refuse. The difference between things like the identification procedure and field sobriety tests is that one (the ID procedure) is an “external characteristic” that you cannot hide and the other (Field Sobriety Tests) are asking you to do something potentially against your legal interests.
The final level of police interaction is an arrest. The police must either have a warrant for your arrest or have developed probable cause. Probable cause is “enough evidence that would cause an ordinary citizen to honestly entertain a strong belief that the person to be arrested is guilty.” If you are arrested, the police must advise you of your Miranda rights before any questioning (questions about your identity, address, etc. for the booking process don’t count). They can perform a full search of your belongings. Unless you post bail or are released, you’ll be held until your first court appearance.
Those are the basics. If the worst case scenario has happened and you or your loved one has been arrested anywhere in Southern California, contact me for a free initial consultation.