You’re driving down the road, minding your own business—and maybe going 10 or 20 miles-per-hour over the speed limit—when you see red and blue lights flashing in your rearview mirror. Immediately, you realize that your day is ruined; you’ve either attracted some unwanted attention from the police or you’re hallucinating, and either way, you’d better pull over.
Nobody likes dealing with the police since it generally means that you’re either suspected of committing a crime or you’re the victim of a crime. In either case, it’s important to know your rights.
We spoke with several police officers and attorneys to figure out what those rights actually mean during an investigation—and how to avoid some common mistakes that can lead to more charges.
1. First and foremost, follow all reasonable instructions.
“I think one of the bigger mistakes is not following officer’s instructions at a scene,” Ken Rosa, a retired law enforcement officer and current senior manager at Aftermath Services LLC, tells Urbo. “People are often combative and state that they know their rights when they really don’t. They believe it is better to be verbally or physically combative at the scene if they don’t believe the officer is doing something properly, rather than simply following instructions and making a complaint later.”
To put that another way: The police always win the first round. If you believe that they’re acting unjustly, swallow your pride and follow any reasonable instructions you receive. That’s especially true if you’re arrested.
“What ultimately matters isn’t what happens with the officer, but what is admissible in court,” says Matt C. Pinsker, PLLC. Pinsker is a practicing criminal defense attorney, a former state and federal prosecutor, a co-author of a legal textbook, and an adjunct professor of criminal justice at Virginia Commonwealth University.
“One thing people should absolutely do if arrested is be polite and respectful,” he says. “Nothing is gained by rudeness. And being polite, regardless of the attitude or conduct of the officer, will only help your situation. Without making incriminating statements, comply with all legal commands, such as with the fingerprinting, where to stand, et cetera.”
2. Tell the truth (or say nothing at all).
“Police are people, and just like everyone else, they want to be told the truth,” says private investigator Whitney Joy Smith, who works with police regularly to arrest potential criminals. “We have found more often than not that any trouble that comes from a person [comes from] them not telling the truth. Respecting the officer and being compliant will always make the situation better. Remember, they’re here to help you.”
That’s great advice if you’re trying to get out of a ticket. Of course, if you’re the subject of an investigation and you believe that you might be arrested, your best bet is to remain silent.
“If arrested, the number one thing to do is to verbally say, ‘I assert my Fifth Amendment right to remain silent and my Sixth Amendment right to an attorney,’ and then say nothing else,” Pinsker says. “Do not answer any further questions. Even if not arrested, detained or not, do not make any statements to law enforcement.”
“The number one mistake people make is that they talk to law enforcement; they believe they are making their situations better by cooperating or make statements they think are helpful to their case, but almost always, they make it worse. Contrary to popular misconception, you do not make yourself appear guilty by asserting your right to remain silent.”
While you could assert your Fifth and Sixth Amendment rights during a routine traffic stop, that’s probably overkill, since your chances of being arrested are fairly slim (provided, of course, that you haven’t committed a major offense). The police we spoke to said that they were more likely to give a driver a warning if he admitted to a minor offense like speeding.
3. Don’t assume that you understand the law better than the officer.
We’ve all seen those YouTube videos where drivers refuse to interact with police, usually resulting in an arrest. Rosa says that these types of incidents are easily avoidable, provided that citizens understand that they’re not attorneys.
“Based on a lot of recent videos taken by officers or the citizens, I believe that people think they have more rights than they actually do,” he says. “For example, video footage from Connecticut shows a driver was stopped at a checkpoint. The driver argued with the officers for 20 minutes stating that the officers did not have the right to question him during the checkpoint. The state law is clear that they do have the right to stop drivers and question them at [the] checkpoints. Do some research, know your rights, but follow instructions. Deal with any issues later rather than being resistant at the scene.”
Y’all gotta stop arguing with the police while being arrested lol…they can’t do nothing for you. Argue your case in court, not on the side of the road or on the floor at Waffle House lol
— Mr. E (@Flash_E) April 24, 2018
For example, if an officer asks to see your license, show it to him.
“The police may ask to see your driver’s license, car registration, and insurance,” Canadian criminal defense attorney Joshua Rogala says. “If any of these documents are in the glove compartment, be sure to tell the officer that you are reaching for the document before doing so.”
And while you’re dealing with police, remember: They’re just trying to do their job.
“One of the bigger misconceptions is how our justice system works,” says RJ Beam, a police detective (and blogger) in Wisconsin. “This seems to only be getting worse.”
“Firstly, police do not make laws, elected officials make the law. More than once, I have been belittled by a crowd during an arrest for a law [that] is less than popular.”
“Second, the police are the enforcement arm of the system. We do not charge people with crimes—the city and district attorney do. Likewise, we do not [determine] who is guilty or innocent. We investigate, document the facts, and give the case to the court system for charges and disposition. Just this weekend, we were arresting a guy and his friends started to yell about how our arrest was illegal because this guy should be considered innocent until proven guilty.”
Obviously, their argument didn’t prevent police from making the arrest.
4. Record everything—provided that you can do so legally.
“If you want to video a police interaction, it should be allowed as long as it does not interfere with the investigation,” Rosa says. “If at any point it does, the phone/camera needs to be put down and you need to give the officer your full attention.”
We should note that the legality of recording police varies from state to state. In Illinois, for example, recording interactions with officers was made legal in 2017, but making secret recordings is still illegal.
If you’re recording on public property, you aren’t interfering with an investigation, and you’re not hiding the fact that you’re recording, your actions should be legal, but ask a local attorney before you rig your car with a dozen dashcams. If an officer asks you to stop recording and you’re absolutely confident that you have the legal authority to film (see point 2), you can refuse—but be polite and explain your reasoning.
With that said, if you’re obstructing an investigation by filming, officers may ask you to stop, and to avoid an arrest, you should do so. But they cannot ask you to destroy the video, according to a document from the American Civil Liberties Union (ACLU).
“If you are detained [for filming], politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity,” the document explains.
5. Remember that the officer is concerned for their own safety.
“[If you’re arrested], definitely do not physically struggle, as you do not want to risk getting injured by officers using physical force against you,” Pinsker says. “Also, for your personal safety, keep your hands visible and do not make any sudden moves.”
The officers we spoke to recommended keeping safety in mind, particularly during routine traffic stops. If you’re pulled over on the highway, pull as far off the road as is safely possible to give the officer room to walk to your vehicle. Keep your hands visible at all times, and if you need to reach for something—whether it’s your keys, your ID, or a gumball you just dropped under your seat—tell the cop first.
Finally, don’t assume that the cops are out to get you. In most cities, police have extremely busy schedules; they’re not busting up your backyard party simply because they hate fun.
“Something that people need to know is that police rarely do stuff because they just feel like it,” Beam says. “People call into the police department to complain about stuff they see. Speeders on a road, people loitering at a location, or some kind of suspicious activity. As such, we are obligated to go patrol that area. This makes a double-edged sword situation. We don’t take action and the community thinks we are lazy and ignore their concerns. We take action and we are harassing people. [It’s a] no-win situation.”