Wednesday, January 14, 2009

CAN I PLEASE GO NOW? WHEN A POLICE STOP BECOMES A SEIZURE.

You are sitting in an empty parking lot late at night when a police car pulls up behind you. The officer says he needs to ask you a few questions. You start worrying about that joint you hid in your wallet or that open beer bottle under your seat. You just want to leave. Can you?

The police can make three types of stops. The first type involves the polices’ community caretaking function. An officer can ask you to voluntarily cooperate in giving information. The officer need not have a specific basis to stop you. However, you need not answer any questions, and you can walk away.

The second type is an investigatory stop. Now, the officer must have a reasonable and articulable suspicion of wrongdoing at the time he or she made the stop. The officer cannot act on a hunch and cannot justify the stop after the fact just because illegal activity was discovered. This type of stop must be brief and non-intrusive. You may still refuse to answer any questions and you are still free to go.

The third type of stop is a seizure or detention under the Fourth Amendment. In other words, you are no longer free to leave. Before seizing you, the police must have probable cause to believe you have commited a crime.

If you are ever stopped by the police, ask them “Am I free to go?” If the answer is no, then you have been seized and the police must have probable cause to detain you. The police may indicate that you have been detained in some other fashion: They may block your car. They may activate their signal lights. They may use physical force.

If you do get detained, my advice is to stay calm. Do not consent to a search of your car or personal effects. Also, do not answer any questions. You may think you are explaining your way out of a situation only to dig yourself deeper into a hole. If you are arrested, you should immediately request an attorney. Feel free to contact me at matt@mattkeenanlaw.com or 847-568-0160.

See our related DUI blog at http://duilawyerskokie.com.

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