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What You Should Know If You Are Stopped by Police
You have the right to remain silent.
Posted November 29, 2021 Reviewed by Abigail Fagan
Key points
- If you are stopped by law enforcement, you do not have to answer questions (other than providing your name).
- Police can frisk you if they think you're carrying a weapon, but you do not have to consent to additional searches.
- You do not have to submit to field sobriety or Breathalyzer tests, but refusing can have immediate negative consequences.
This will be the first post in a multi-part series providing general information regarding the rights you retain if you are stopped by police, or if you are suspected of committing a crime (as well as what law enforcement can and cannot do at various phases in the process). This entry was checked by currently practicing criminal defense attorneys, but none of this information provides a substitute for legal counsel.
Ultimately, our natural propensity to acquiesce to authority predisposes us to feel we should cooperate with law enforcement; however, fully cooperating might not always be in our best interest. Police officers are human beings, and as such, they are subject to the same errors in human judgment. Consequently, it can be better to avoid situations that could seemingly confirm their suspicions.
There are two primary contexts in which one can be stopped by law enforcement—while walking on the street or while operating a motor vehicle.
“Freeze!”
If you are stopped while on the street, in some states, you are required to identify yourself to law enforcement (i.e., to provide your legal name). But, you cannot be compelled to answer any additional questions regardless of the location in which you are stopped. A judge is the only official who can compel you to answer questions. That said, you should never lie to law enforcement, but keep in mind that they can lie to you.
Police are permitted to stop people for whom they have a “reasonable suspicion” (or “reasonable articulable suspicion”) is involved in the commission of a crime (or will be soon). If they additionally suspect they are in any danger (i.e., the stopped person might have a weapon), they are permitted to “frisk” or pat you down, even without your consent (these are referred to as stop-and-frisk or Terry stops). If police do not discover any evidence of a weapon when you are patted down, they should not perform any additional searches (e.g., pockets, bags, etc.). Police can ask whether you consent to have them search additional belongings, but you have the right to refuse. Just say, “I do not consent to a search.”
Sirens
If you are stopped while driving, you will typically be asked to provide identification (i.e., license, registration, proof of insurance), and you are obligated to obey this request. But, again, if officers ask any additional questions, you are not compelled to answer them.
If officers ask to search your vehicle, you are not obligated to consent to a search. Police officers can only search your vehicle without your consent if they have a warrant or probable cause to believe you have been engaged in illegal activity (e.g., an open container of alcohol). Police officers can also walk around your car to look for any potentially illegal objects in “plain sight.”
If law enforcement impounds your vehicle, they can perform an inventory search of its contents. Any illegal materials that are discovered upon this search, can be used as evidence that you committed a crime (even though the materials were discovered incidentally as part of a warrantless search).
Field Sobriety and Breathalyzer Tests
If you are stopped while driving and the officer believes you might have been drinking, the situation becomes much more complex. There are three standard field sobriety tests—the horizontal gaze nystagmus, walk and turn, and one-leg stand.
Put simply, the horizontal gaze nystagmus test involves following a stimulus (e.g., the officer’s pen) smoothly with your eyes; the walk and turn requires stepping heel-to-toe nine times, turning, and taking another nine heel-to-toe steps back; the one-leg stand involves raising one foot six inches off the ground for 30 seconds while keeping your arms to the side. Although these tests might sound simple, it’s important to keep in mind that they can be more challenging than you might expect, even if you are completely sober. When you are completing these tests, you will most likely be under stress and in an unfamiliar environment. These two factors will make it more difficult for you to perform the tasks accurately, and if you do not complete them accurately, you will most likely be arrested and charged. That said, you are permitted to refuse completing these tests.
If police ask you to submit to a Breathalyzer test, you can refuse. However (unlike refusing the field sobriety tests), doing so will have immediate negative consequences (e.g., arrest, jail time, fines, etc.). In most states, your license will be automatically suspended for a minimum of six months—this suspension can be lifted if you are not charged with a crime (but this is by no means a guarantee). Further, your refusal to take the test can be considered evidence of guilt.
But, even if you are completely sober (or at least below the legal limit), there is risk involved in submitting to these tests. Breathalyzer results can be impacted by numerous factors other than the amount of alcohol in your blood (e.g., cigarette smoke, mouthwash). Regardless, if you blow above a .08 (in some states the limit is even lower), you may be arrested. And, this failed test will be considered compelling evidence against you (even if subsequent tests conflict with the Breathalyzer).
Ultimately, the decision to submit to a Breathalyzer test (or a field sobriety test), as with many decisions when interacting with law enforcement, is complex.
