Our nation has been shocked by the death of police officers, and the tragic shooting of young black men by the police. The purpose of this article is not to find fault with one side or the other, because there is no one side or the other. The only side that exists is one composed of grieving families, friends, and citizens. However, this article will attempt to provide realistic advice on what to do when the police approach a person.
Guns Complicate Matters
Interactions with the police can occur on city streets and at traffic stops. Police can also enter a person’s home if they have a warrant, or in some instances, without a warrant. Police and citizen interactions have two components. One aspect is what the police officer can legally do and what a citizen can do, or refuse to do. The second issue is what a police officer should do when he approaches a citizen and what a citizen should do when approached by the police.
Weapons generally, and firearms particularly, can play a big part in police and citizen interactions. Guns often lead to irreversible consequences. Moreover, the nation is flooded with guns. The police have guns and many citizens have guns. Moreover, guns often escalate a situation. Traffic stops can be dangerous for everyone. If you have a gun in the car, be careful. This is not the time to complain about an improper stop or a rude police officer. Also, it is not the time to press what you may see as your Second Amendment rights.
Do not approach the gun with your hand, even if you think you have the police officer’s permission. For example, if a pistol is in the glove compartment, do not, do not, do not, go into the glove compartment to retrieve the registration for the car. Do not open the glove compartment, even if you told the officer that a gun was present, and you thought he gave you permission. Keep your hands on the steering wheel, tell the officer about the presence of the gun. Ask the officer if he wants to retrieve the gun before you do anything. Tell him where it is located. He will probably ask you to exit the car. Possibly, he will cuff you. This does not mean you are under arrest. Let him get the gun, or any other weapon that may be present.
This rule applies whether the gun is in the glove compartment, holstered on your hip, or laying on the car seat. If you have legal possession of the gun, this will be an inconvenience. If you do not have legal possession, you can be charged with a violation of the law. However, your cooperation with the police may be transmitted to the district attorney. Moreover, your attorney will inform the court that you took steps to de-escalate a potentially bad situation. You can survive a criminal charge. Getting shot, not as well.
Searches of the Person
If approached by the police, you do not have to answer their questions, other than your name. Moreover, you may be unsure if you can leave. if you are being questioned by the police and are unsure if you can leave, ask the police officer. Ask, “Am I free to leave?” and “Am I under arrest?” and “Why am I being detained?” Remember, you do not have to answer any questions the police ask, particularly if you are a suspect in a crime. Moreover, do not think you can explain things away to the police. Be polite, be respectful, but stand your ground regarding your right to remain silent. “Sir, I prefer not to answer your questions, may I go?”, needs to be the substance of your conversation. If the police want to continue the conversation, tell them you want to contact an attorney before answering any questions.
If the police have a reasonable suspicion that a crime was committed and have a reasonable suspicion the suspect has a weapon, the police can do a Terry search. A Terry search of a person is limited to a pat-down of the person’s outer clothing to determine if a weapon is present. Consequently, if it is obvious the police are going to do a pat-down, and you have a gun, knife or other weapon on you, nothing is lost by letting the police know. Moreover, if you have legal possession of the weapon, the police have no right to do a more extensive search beyond a pat-down, unless you are placed under arrest. For example, if you have a gun on you and the police officer is going to do a pat-down, let him know. Once the weapon is out of your possession, they cannot reach into your pockets, unless the police detect another weapon by a pat-down.
A Terry search of a motor vehicle is more invasive. The police can search anywhere in the vehicle that a weapon could be present and is accessible to the vehicle’s passengers.
Fight in Court
The next obvious question is what should a person do when the police exceed their authority or behave in an inappropriate manner. Right or wrong, the police have the upper hand on the streets. Fight your fight where you can win — in court. Every person is entitled to be treated with respect and consideration. However, it does not always happen. Regardless of what the police or another citizen does, do not be goaded into doing something unwise.
When the police exceed the scope of their authority, document everything you can. If the event was recorded on a cell phone, good. If not, write down what occurred as soon as you can. Record the time, the place, and any witnesses that may have been present. With the right evidence, a skillful attorney can shine the spotlight on police misconduct during any San Diego arrests.