What’s the difference between a Stop and Encounter
Many of my clients ask me “What right does a cop have to stop me on the street?” and more importantly “What rights do I have when a cop approaches me?”
The answer depends on what kind of interaction the Police officer is having with you. There are 3 kinds of possible interactions that a Police Officer can have with a citizen: 1) An Encounter, 2) A Detention, 3) An Arrest.
If there is no reason for an officer to believe that a crime has occurred and he approaches a citizen in public, this is considered An Encounter. The courts have also defined an encounter as “whether a reasonable person would feel that they were free to leave the situation as governed by an objective standard.” If the cop car lights are on, you are in handcuffs, or the cop tells you that you cannot leave, then chances are it is not an encounter because a reasonable person would not believe they are free to leave.
During an encounter with a police officer, you are free to walk away, free to ignore his questions and not respond to the officer at all. The reason for this is because the officer has no right to detain you if he has no reason to believe that a crime is afoot or that the public welfare is in danger.
You have the right to terminate an encounter with a police officer unless you are being detained in police custody, or have been arrested. Say to the officer, “I have to be on my way. Am I free to go?” If he says “Yes,” leave. If he says “No,” it is not an encounter, and he needs either reasonable suspicion to detain you or probable cause to arrest you.
Now, If a police officer has “reasonable suspicion” that criminal activity is afoot he may then detain you and investigate you long enough to confirm or dismiss his suspicion. Under the law, a police officer has “reasonable suspicion” if he or she is able to articulate facts of criminal activity. This can be running a red light, committing small traffic violations, etc. Reasonable suspicion is a low burden for a police officer to meet.
If you are being detained, then you do not have the right to walk away from the officer. You are required to ID yourself if the police officer request you do so. However, that does not mean you have to give the officer consent to search your car or person. But, if the officer believes his safety is at risk, he may briefly pat you down to make sure you do not have weapons. Besides identifying yourself, you are not under any obligation to answer the officers question without an attorney. You are not obligated to give the officer consent to search your car, person, or belongings. This includes when you are stopped for a DWI, you are not required to do the field sobriety test and you may refuse.
If an officer has probably cause to believe that you have committed or are committing a criminal offense, then that officer has the right to arrest you.
Probable cause means that given all the circumstances, a crime probably occurred. Although Probable cause is a higher burden that reasonable suspicion, it is still a relatively low burden for the officers to meet. Once you are arrested, the officer cannot interrogate you unless he has read to you your Miranda rights, which include your right to remain silent and your right to an attorney. If you have been arrested and are being interrogated, you have the right to immediately ask for an attorney and refuse to answer any questions until you have your attorney present.
Use your rights
It is important to know your rights when dealing with a law enforcement officer. Protecting and making use of your rights during either an encounter, detention, or arrest can help you tremendously in the long run. You have the right to ask for an attorney, not consent to searches, and refuse to answer investigatory question until you had the opportunity to have your attorney advise you.
As always, please feel free to call The Law Office of Florencia Rueda, PLLC at (512)-478-7466 if you or a loved one has been arrested in Austin or simply have questions about your rights.