Assert Your Rights in Virginia Police Encounters

Most people encounter the police in two main ways: traffic stops and home visits. Because of the protection of the Fourth and Fifth Amendments to the Constitution, you have certain rights whenever the police come knocking.

Asserting Constitutional Rights with Police on a Traffic Stop: Search & The Right to Remain Silent

You’re driving in your car, and suddenly a police officer pulls behind you and turns his lights on. What do you do? The temptation will always be to try to figure out whether the officer actually suspects you of a traffic infraction or crime.

As the officer approaches your window, keep your hands on the wheel until he asks for your registration documents. When the officer asks you if you know why he pulled you over, you are entitled to invoke your Fifth Amendment protection against self-incrimination and say, “Officer, I’m not going to answer any questions.  Would you like my driver’s license and registration card?” Police will try to get you to admit to speeding or committing another traffic infraction, regardless of whether you have actually committed an infraction. Provide your identification information, as well as your vehicle registration and insurance.  As to any other questions, simply say:  “Officer, I’m going to decline to answer any questions without a lawyer present.  Are you detaining me, or am I free to go?”  If the Officer says nothing or says he is detaining you, calmly remain.  If he says you are free to go, then calmly drive away. Whatever you do, never lie to the police. You are within your rights to decline to answer questions, but you should not lie or conceal your identity.  If the Officer’s traffic stop of your vehicle was unlawful, your lawyer can challenge the stop in court, but the street is not the place to challenge the officer. While on the street, you calmly assert your rights, decline to answer questions, and decline consent to search, but never physically interfere with an officer. His actions, if improper, can be challenged in Court as long as you have not consented. If you consent, you have waived any objection your lawyer may otherwise have been able to make on your behalf.

You may also exercise your Fourth Amendment protection against unreasonable searches and refuse a search of your car. A police officer can search your car if you consent, or if he has probable cause to believe you have committed a crime. Regardless of whether you think the officer may have probable cause to search your car, you are entitled to politely state that while you are not physically resisting the officer, you do not consent to a search of your car. When you refuse a search, you are not admitting guilt or giving the officer the right to detain you. In fact, most police searches occur when police confuse or intimidate people into consenting to a search without probable cause.  When police say “You don’t mind if I look through your car, do you?” You can simply and calmly reply, “Officer, I don’t consent to any searches.”  Please note, if the officer believes he has probable cause to search, he will search your car anyway.  Never attempt to interfere with this. Simply refuse your consent, then step aside and allow the officer to do whatever he does. The search (if he does one) can then be challenged in court because you did not consent to it.  If you consent, you waive the opportunity for your lawyer to challenge the search in court.

After you refuse a search, be aware that the officer may try to make you prove your innocence by asking what you have to hide. You may again politely refuse to answer. You can just repeat, “Officer, I’m not going to answer any questions.  Am I free to go?” The police officer is not required to inform you of your right to remain silent unless he suspects you have committed a crime, and takes you into custody to question you about the crime. It’s up to you to exercise your right to refuse to speak and refuse searches — even if the officer has not “read you your rights” you still must assert them verbally.

There is no need to physically resist an officer on the street, or even to engage in a verbal dispute with him. You only need to calmly assert your right to 1) Not answer questions without a lawyer present, and 2) Not consent to any searches of yourself or your property.  Remember the officer may search anyway.  But your lack of consent is still important — it allows your lawyer to challenge the search in court. You don’t need to physically resist the officer’s search or interfere with him in any way (and you should not, or you risk being charged with additional crimes).  One simple and very clear verbal assertion of “no consent” is enough.

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Asserting Constitutional Rights with Police at  your Doorstep:  Searches and Questioning at Your Home

Sometimes police officers will come to the door of your home. In many cases, the reason for the visit is something simple: a noise complaint in your neighborhood, or an investigation of a crime in the area. However, police might want to investigate activities occurring in your home or even suspect you of a crime. When this happens, you also can prevent an unwanted police entry.  When the police knock, you may want to try not answering the door at all. In most cases, police cannot kick down a door (but in some cases they can, when they have a specific type of warrant).  Or you may wish to open the door only slightly, perhaps with the chain-lock still fastened to indicate you still wish to retain privacy in your home. If police ask to come in, you may simply say “No thank-you” and close the door.  If they have a warrant to enter, believe me they will make that clear to you at this point.

You can exercise your Fourth Amendment protection against unreasonable searches by refusing the police entry to your home unless they have a search warrant. Make sure any roommates or children are aware that you will not consent to police searches, and that they have the right to refuse searches as well.  If you are not home, and your roommate consents to a search, that consent will allow the police to legally search most (and sometimes all) areas of your home.  On the other hand, if you decline consent to search and police do search anyway, your lawyer will be able to challenge the search in court. If it is found to violate the Fourth Amendment, any evidence they obtained in the search might be excluded from a case against you.

Just like the traffic stop example, there is no need to physically resist the police, though it is a best practice to avoid any confrontation and avoid opening your door to the police if you prefer not to answer questions nor allow them to search your home. If you open the door at all, and police believe they see evidence of a crime occurring over your shoulder, inside your home, they may have the right to enter your home at that point. The Constitution guarantees you the right to protect the sanctity of your home and requires police to obtain a warrant to search your home in most cases. But it is up to you to assert that right verbally, by declining consent to police entering your home.  Once you allow them into the front door, you have at least consented to them glancing around that room.  If they happen to see anything suspicious, they could begin an even more detailed search.  So if  you wish to assert your rights at your home, the best option is to not answer the door or to answer only by cracking the door long enough to ask the police to leave.

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