Transcription
Stop by the police. There are four things, and only four things, that if you say will likely result in you avoiding lots of trouble down the road.
Hi, I'm Mark Lopez, former prosecutor turned defender of the people. Let's jump right in. If a police officer walks up and starts talking with you, the very first thing anyone should say is, "Am I free to leave?" Why? This is such a powerful statement because it invites the officer to do one of three responses: yes, no, or some other variation. Why are you being like this? I just want to talk to you. Are you got something to hide? Who knows what they're going to say. This is America; they can say whatever they want, but there's going to be only one of those three responses.
If the officer says yes, then walk away. That means that the interaction between yourself and the officer is a voluntary encounter, also called a consensual encounter. Basically, the officer is allowed to come up and talk to anyone. I'm allowed to come up and talk to anyone. Theoretically, I can walk up to anyone, as an officer can, and ask anything. I should know about: Have you committed any crimes today? What's in your pocket? Anything in your bag could hurt me? Can I search your briefcase? Have you committed a crime today? Are you doing something illegal? Have you been involved in a crime? Who knows? They can ask anything they want, and it's voluntary. The Supreme Court has said that these encounters do not implicate the Fourth Amendment. It's just a casual and brief inquiry of a citizen involving neither an arrest nor a stop, and the citizens are free to disregard and go about their business. There's no Miranda warning required because it's not a custodial interrogation. And during these voluntary encounters, a police officer can use no level of force, nor can they come up in force like four or five officers at once, or have their hands on their sidearms, or anything like that. Basically, they can't tell you to sit down, stand up, put your hands in the air, hold your hands out to the side. This is a voluntary encounter, and so if they say yes, then you know right away it's a voluntary encounter. Walk away. They may get irritated, may say something, who knows, but just walk away.
Now, if they say, "Why you being like this? We got something to hide," only a real jerk would do that. Oh, you must be guilty. Some officers get real mad. I watch the body cams. If they act like that, you calm down, but don't fall for their games. They're taught to be kind of mean like that because most people, when they see that, they comply immediately. If the officer is being aggressive, "Why you doing like that? Am I free to leave?" Very calm, no matter how angry they are. "Am I free to leave?" Now, if they continue with that, keep responding, "Am I free to leave?"
Now, if they say no, well, if they say no, well, then you know that you're not in a voluntary or consensual encounter. You are either in a Terry stop or you're going to be outright arrested. Because as soon as the officer tells you you're not free to leave, those are the two categories this encounter is now in. And again, it's not going to be easy for someone to figure this out. Why is it not easy? It should be easy, right? But it's not. The reality is, judges, federal judges, state judges, constitutional lawyers, lawyers way above my pay grade, have problems figuring out if a police encounter is voluntary, if it's a Terry stop, or if it's an outright arrest. This is litigated all the time, and it's not easy, but you can make it easy by always asking, "Am I free to leave?" And if they say no, you know you're in a Terry stop or outright arrest.
And so a Terry stop, the 1968 Terry case, but basically, it's very important to understand Miranda warnings are not required for a Terry stop. A Terry stop: An officer can briefly detain an individual for investigative purposes based on reasonable suspicion supported by specific and articulable facts that criminal activity is occurred or is about to occur. This is a nonconsensual encounter that implicates the Fourth Amendment. The detention must be temporary and last no longer than necessary to effectuate the purpose of the stop, using the least intrusive means available. Now, a police officer is allowed to use the amount of force reasonably necessary to effectuate the stop and ensure the officer safety. They can pat down for things that could hurt the officer. You see cases where officers get overly zealous. Oh, I patted him down, I found a baggie. Really? How's that baggie going to hurt you, officer? He's not being arrested. How? Well, you found marijuana. You shouldn't have been searching for that. Shouldn't have been searching for things that could hurt you, not for soft things. So if the officer tells you you're not free to leave, you know that's either a Terry stop or an outright arrest.
Now, an outright arrest, well, that's pretty easy to figure out. You're in handcuffs, the officer telling you you're not free to leave, sit down, empty out your pockets, or they actually read you Miranda rights, but you're not free to leave. During a Terry stop or an arrest, an arrest does require probable cause, which is more than reasonable suspicion. However, probable cause simply means that a reasonable person believes that a crime has been or is being committed, and Miranda warnings are required before you're in custody and interrogated. So if you're clearly in handcuffs and you're being asked questions or you're at the police station, then yes, you kind of know you're being arrested. But the difference between an arrest and a Terry stop is not so obvious at the beginning. So if an officer tells you you're not free to leave, okay.
Next three things you say are essentially: "I plead the fifth," "I want a lawyer," and "I do not consent to a search." If you say those three things in that order, well, the Terry stop is going to come to an end pretty quickly because you're not going to give him anything that he can use against you. Now, he might be able to search you for sharp objects, things like that, but you're not going to be giving him statements. So, "I plead the fifth," "I want a lawyer," "I do not consent to a search." That's going to force the officer to say, "Okay, I guess I have to arrest this person," or I can continue to maybe see what's going on, but he's not going to tell me anything. But literally, most people, when the officer starts questioning, they start spilling their guts; they just start talking. Terrible idea. Terrible. Do not recommend unless you want to be hiring a criminal defense attorney.
And some people say, "Well, Mark, I have nothing to hide, why do I care?" Well, you don't know exactly what the officer is looking for. Maybe you're wearing a white shirt with a blue jacket, and a block down the road, somebody with a white shirt and a blue jacket is accused of hurting somebody. All of a sudden, you're at the wrong place at the wrong time, but you fit the description of someone that may have been involved in a crime. And then, then all of a sudden you start talking to the officer, and there's discrepancies. "Where were you?" "I was somewhere I'd rather not say." You start looking guilty, and then the law of nature is, officers want the easiest job possible. If they can pin a crime on you because it looks like you're guilty, well, it's a good chance they're going to stop investigating, and they're going to say you did it. Especially if you don't have an alibi, especially if you can't prove you weren't there, especially if there's a faulty identification, especially if they catch you in some other small lie or series of small lies. Maybe you were with your girlfriend when you have a wife at home. Maybe you were working a second job when you should have been. Maybe you're interviewing at a job on company time with the other job. Who knows? All sorts of reasons that could make you look bad if they catch you lying. Because if you lie to the officer or if you don't say the 100% truth, they get to say in court, "Ask yourself, were you lying then or are you lying now, ladies and gentlemen? He's guilty." That's scary. But if you say these words: "Am I free to leave?" And walk away. And if they say no, you say, "I plead the fifth," "I want a lawyer," "I do not consent to a search," you make the situation much easier on yourself and harder on the police to incorrectly charge you with a crime. And even if you are guilty, at least you're not implicating yourself without some sort of advantage. And if you are guilty, hire a lawyer, and then they, the lawyer, can negotiate with the state, try to get some sort of lesser penalty. But you don't want to just be giving things up on the street that's going to give any benefit. The officer is not going to put in the police report, even if he does, there's not going to be much stock. He was cooperative when we had him, and he was completely screwed. He was cooperative for that. That doesn't mean too much. So don't fall for these officer tricks. Only four things you just say to a police officer questioning you: "Am I free to leave?" "I plead the fifth," "I want an attorney," "I do not consent to a search." If you say those, you will avoid all sorts of problems. If you have any questions, give me a call, 317-632-3642. I would love to talk to you about your Fourth Amendment rights, your rights, all sorts of fun things. I love this job. And check out four other videos for one giant exception in the great state of Indiana. Remember to always plead the fifth.