Cop Tips: Voluntary Contact, Detention, and Arrests
Mar. 29, 2016 (Mimesis Law) — I get a real kick out of the legal advice offered by YouTubers on how one should handle themselves during a police contact.
First, almost all of it is from non-lawyers who have no real understanding of the law. The advice given is almost universally crap.
Second, your telling the police at the scene that they are violating your rights is obviously going to make them stop doing what they are doing, and humbly beg for your understanding and forgiveness ratchet up the pressure and possibly arrest you for any number of offenses, some of which might actually stick.
Third, the street is not the place that the matter is going to be resolved.
Back in the day (a long time ago), I stopped a car for a traffic violation as a pretext for investigating the driver for Driving While Intoxicated. While some will scream and moan about the morality of making a pretext stop, in Texas it was (and still is) legal so long as I could articulate an actual traffic violation that I was stopping the person for. I knew this and used it to my advantage—almost every DWI arrest I made started with an actual traffic violation, and I never lost a case based on no probable cause for the stop.
It was near a bar area where there was a great deal of pedestrian traffic, and, sure enough, we got some people who decided to watch, comment on, and critique the entire stop. One of the commentators was a recent law school graduate who was awaiting bar exam results, and who did not really like the police.[i]
I didn’t particularly like his giving “legal” advice to the person I had detained, so I advised him to back off and shut up, or go to jail. The graduate immediately asked what he would be arrested for, and I replied for either interference or public intoxication, at which point the graduate moved on. I continued to conduct the field sobriety tests and eventually arrested the driver for DWI.
This little incident shows all three types of police-citizen interactions.
When I stopped the vehicle for a traffic violation, I was legally detaining the driver and the occupants of the vehicle. They were not free to leave, but they were also not under arrest. The driver was required by Texas law to provide their driver’s license and proof of insurance, but the passengers were not required to identify. If the driver had tried to leave, he would be arrested.
The contact with the law school graduate was a consensual encounter. He was free to leave at any time, and did not have to identify himself. I did not ask for his ID.[ii]
Finally, at the end, the driver was arrested for DWI, and was taken into custody.
The problem with the YouTubers is that they believe that if they demand that the officer explain the reasonable suspicion for the detention, the officers have to do so. They don’t, and I very rarely explained it other than tell them that they were stopped for whatever traffic violation I had observed. Most people don’t argue that point anyway, and it causes the officer to wonder if you’re an asshole if you bring it up.
I would still recommend that you ask, especially if the encounter is on video, because you never know what the officer will say, and sometimes it’s stupid enough to get the case dismissed.
The law school graduate knew enough to tell the driver not to answer questions, etcetera, and also knew enough to stop when contacted by an officer. While he knew that he could get the interference charge thrown out,[iii] he also knew that the intoxication charge would be based solely on the officer’s determination and would be almost entirely subjective. He didn’t want to take the chance, so he moved on. And that worked for both of us—I really didn’t want to deal with him, much less arrest him,[iv] and he didn’t want to go to jail.
Many YouTubers will continue to antagonize the officers, akin to poking the tiger with a stick. Then they are surprised when the tiger begins to pay attention to them. And police are very adept at using the law to their advantage. For example, if you curse at the officer and there is a civilian present, you are committing disorderly conduct if the officer can get the civilian to say that your language was offensive. And the officer knows how to ask the civilian that question to get the response he needs to arrest you.
And finally, you had a custodial arrest of the driver, where all of the Miranda rights kick in, and so on.
The YouTubers get completely lost at this point. The officer can legally seize the camera or cellphone as evidence[v], you go to jail, and even if you get the charges dismissed later, you are out money for bond, for your lawyer, and so on.
I don’t have a problem with people filming the police; they did it to me when I was on the street.
I have a problem with people interfering with my contact and subsequent arrest.
Just use common sense and you should be OK.
[i] And who also turned out to be a damned good attorney, especially on the appellate side.
[ii] There was also no point, I knew who he was, and asking for ID would have opened up additional issues with him that I had no interest in discussing.
[iii] It is not an offense if the “interference” consists only of speech.
[iv] I certainly did not want to spend the time to get the evidence for public intoxication on him. My goal was to see if the driver was intoxicated, not to deal with a passer-by.
[v] Under federal law, video for dissemination to the public may not be seized unless the cameraman is arrested. Police are required to subpoena that type of video under that same federal law. Of course, YouTubers claim that the video is for personal use, which negates the protection of federal law.