When fighting for your rights, you need an experienced criminal defense attorney at your side.
As a criminal defense attorney, I have handled nearly 2,000 criminal cases. While representing my clients I have watched dozens of hours of police footage and reviewed hundreds of police reports. Although every case is different, most criminal cases tend to follow the same series of events. Hopefully this will guide you through the basics of police detentions in Texas. If you would like to talk to me about the specifics of your case, then give me a call at (940) 228-7437.
Stopped by the Police? Know Your Rights
Most criminal cases tend to start with some sort of initial encounter with law enforcement. The 4th Amendment talks about seizures. The Texas Penal Code and courts talk about detentions. Usually what they mean when they talk about seizures and detentions is that someone was stopped by the police. How this plays out usually depends on whether the officer has a warrant or not. In most cases, the officer will not have a warrant unless they already suspected you of criminal activity.
The officer may have stopped you because it was a “consensual encounter.”
Officers, just like every other citizen, have the right to ask someone questions. If an officer approaches a citizen in a public place to ask questions, and the citizen is willing to listen and voluntarily answers, then the law calls that a consensual encounter. The officer does not need to believe that you committed a crime to just ask you questions. However, you are free (at least legally) to ignore the officer and walk away from a consensual encounter. In practice, this can be hard because the officer does not have to tell you that you are free to ignore him or refuse his requests. Unfortunately, the law allows the officer the ability to do almost anything as long as he has your consent. He can request your identification. He can ask to search you, your belongings, your car, your house, or anything else. The law does not require the officer to ask nicely or be polite when he asks you questions or your permission to search. In the heat of the moment, it can be hard for you to figure out if this is a consensual encounter or something more.
Well, what should I do then? The easiest way is to figure out if this is a consensual encounter is to ask the officer if you are free to leave. If he says yes, then you are on your way. If he says no, then you are being detained (which we’ll get to in a moment). If the officer asks your consent to search you or your belongings, remember you have the right to refuse.
The officer may have stopped you as part of his “community care taking” function.
“Community caretaking” is basically the law recognizing that officers do a lot more than arrest people. They get called out to medical emergencies as first responders. They get called out to rescue kittens from storm drains. They get called out to offer assistance to motorists with flat tires or engine troubles. And sometimes, along the way, then end up arresting someone.
Community care taking, like consensual encounters, are not technically considered a “seizure” or “detention” under the law. The officer can do the community care taking parts of his job without suspecting that the citizen is committing a crime. For example, if you’re stranded on the side of the road with a flat tire the officer can pull over and help you without first thinking you are committing a crime. But like consensual encounters, an initial community care taking stop can easily turn into something more if the officer begins to suspect criminal activity.
The officer is only supposed to do things in a community care taking encounter that protect your safety or the safety of others. Unfortunately, the test the law gives for community care taking is very vague. The court will generally look at four things when deciding if you were stopped as part of the officer’s community care taking functions or not: (1) the nature and level of the distress exhibited by you; (2) your location; (3) whether or not you were alone or had access to help independent of that offered by the officer; and (4) to what extent you—if the officer did not help you— presented a danger to yourself or others. Like the definition of consensual encounter, it can be very difficult to figure out on the side of the road whether or not this is a community care taking encounter or not.
Well, what should I do then? Basically the same rule with a consensual encounter applies. Thank the officer for his help and ask if you are free to go. Be polite (though legally being rude to an officer shouldn’t affect your rights, as a practical matter judges and juries are human and sometimes take that into account) and when finished ask if you are free to leave. Again, if the answer is no then this is no longer a community care taking encounter. Remember that you are not required to agree to any searches.
The officer may have stopped you because it was an “investigative detention.”
An investigative detention is the type of encounter with police that most people think of when they think about police stops. Investigative detentions are brief encounters with police where the officer has a reasonable, describable suspicion that you have been, or soon will be engaged in criminal activity. It cannot be just a hunch – the officer has to have specific and describable facts which, taken together with what the officer can rationally assume from those facts, support his reasonable suspicion. The courts take a look at everything the officer knew at the time (called the “totality of the circumstances”) when deciding if they had reasonable suspicion.
If you were in a car, then that reasonable suspicion is usually that you violated some traffic code (like speeding, or blowing through a stop sign). If you are on foot, then illegally crossing the street, or not walking on a sidewalk where a sidewalk is provided seem to be a popular choices to detain someone. An officer’s reasonable suspicion doesn’t just have to be witnessing you commit a crime. The courts have found that being in the car with a known prostitute is reasonable suspicion. If the police got a recent, credible tip from an informant that you were committing a crime, the courts have said that was reasonable suspicion. If the officer believed your car was stolen but was later mistaken, that can be reasonable suspicion. And the smell of marijuana (burnt or unburnt) coming from your car is definitely reasonable suspicion.
Well, what should I do then? Great question! Let’s start with some things you shouldn’t do.
Don’t panic and think to yourself…
Oh crap, there’s a joint in the car! Should I try and outrun the police?
Definitely not. Not only are you unlikely to succeed (seriously, even if you got away there’s a police video with your license plate on it!), but you’ve just turned your misdemeanor Possession of Marijuana charge into felony Evading in a Motor Vehicle.
Oh crap, there’s a joint in the car! Should I eat it or throw it out of the car?
Again, bad idea. Tampering with Evidence is a third degree felony as well. You could go to prison for up to 10 years (or, depending on your criminal record, potentially the rest of your life) in prison. Don’t eat your weed.
Well should I just confess to everything and let them search? Maybe they’ll go easy on me.
Sure, anything’s possible. But far more likely is that you consent to a search, the police take you up on your generous invitation and arrest you for what they find. Plus, you’ll have shot yourself in the foot should you try to fight the search later. Trying for a lesser charge isn’t done by yourself on the side of the road with the officer. It’s done through your attorney after he has developed your case and filed a motion to suppress anything the police found. I’ve had several instances where a client with an otherwise good suppression issue blew it by consenting to the search. Seeing those cases always makes me sad. Don’t be that guy/gal.
So what should I do? Generations of Americans have fought and died to protect our Constitutional rights in this country. Those rights include the right to free of unreasonable searches and seizures. Don’t throw away those freedoms for the hope of roadside mercy from the police. Refuse all searches, tell the officer you want to speak to an attorney before being questioned, and force the officer to either develop his case or let you go. And give me a call at (940) 228-7437.
Law Office of Scott Stillson , PLLC • (940) 228-7437 • 900 8th Street, Suite 1014, Wichita Falls, Texas 76301