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Police Encounters: Stay Cool, Don't Waive Your Rights

When you see a police car in your rearview mirror, it almost always invokes a certain level of anxiety. Many people are intimidated by police encounters and act in extreme ways. They may waive all of their constitutional rights and consent to have their privacy violated; or, worse, they act aggressively toward the officer or even flee, and turn a potentially non-criminal investigation into an arrest for resisting law enforcement. Regardless of the reason for a police encounter, the best course of action is to remain calm and polite, but do not waive any of your constitutional rights.

There are three levels of police investigation, two which implicate the Fourth Amendment protections against illegal search and seizure, and one which does not. The Fourth Amendment requires that an arrest or detention for more than just a short period be justified by probable cause. Police may also briefly detain a suspect if the officer has reasonable suspicion that criminal activity “may be afoot.” The third level of police investigation occurs when there is a consensual encounter, which consists of a casual and brief inquiry of a citizen and involves neither an arrest nor a stop.

During any of the above types of encounters, acting aggressively or threateningly towards police could invoke an exception to the protection citizens enjoy to be free from unreasonable searches. An officer is not entitled to seize and search every person who he sees on the street or of whom he makes inquiries. However, a police officer may conduct a pat down search for weapons if the officer reasonably believes that the person is armed and dangerous. In deciding whether a pat down search was legal, the Court will examine whether the officer had a justification to believe, from specific facts, that the person searched was dangerous.

The Indiana Court of Appeals reversed the conviction of a man convicted of Possession of Cocaine, a Class B felony, due to an illegal pat down search. The police encounter with the defendant was initiated because officers saw him exit a vehicle with an alcoholic beverage, in violation of the open container law. The officer testified at a suppression hearing that he approached the defendant and asked him to remove his hands from his pockets with the understanding that the officer was going to search for weapons upon his outer clothing. While removing his hands, the defendant dropped a bag containing cocaine on the street. The State argued at the suppression hearing that the defendant had abandoned the cocaine, thus the defendant's privacy in the bag had been waived; and alternatively, that the pat down search was necessary for officer safety because the defendant was in a "high drug area" and the defendant had his hands in his pockets. The trial court denied the motion to suppress and the defendant was convicted of Possession of Cocaine, a Class B felony.

The Court of Appeals then reversed the conviction finding that the defendant had not made any furtive or aggressive actions toward the officers; and that being in a "high drug area" and having his hands in his pockets were not facts sufficient to cause a reasonable officer to fear for his safety. Because the defendant had been calm, and the infraction open container violation was not a criminal offense, there was no reason for a pat down search to be conducted. The Court of Appeals further held that the defendant’s decision to discard the cocaine was caused by improper police conduct. Thus, the abandonment was not truly voluntary and as a result, the cocaine was not admissible.

In the above case, had the defendant panicked, and been either overly aggressive towards the officers, or voluntarily consented to a search of his person, he would have faced 6 to 20 years in prison. If you are in a police encounter, always remain calm and respectful. And, never consent to a search of your person, car, house, or computer. If you are arrested following such a search, you should contact an experienced criminal attorney immediately. You may have a valid motion to suppress the evidence in your case.

Call Lafayette Indiana defense attorney Brett Gibson if you were arrested following a police encounter where your rights may have been violated. Gibson Law Office has a statewide practice with offices in Lafayette and Fort Wayne.

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Posted: 9/22/2009 9:41:22 AM by Brett Gibson
Filed under: illegal, search


 

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