The Top 3 Client Questions about constitutional rights during a police stop

My weekly blog posts always try to focus on important questions from clients.  I’ve found that many clients and even people who don’t hire our law firm have the same questions.  Here are the top three questions that I’ve received from clients this year.  For more answers, I encourage you to visit my website’s free download section. Also take some time and watch my free videos 

1. QUESTION – Can police stop you on the street for any reason?

ANSWER: Police need either reasonable suspicion or probable cause to stop a person (car or on the street). Probable cause is a higher form of reasonable suspicion.   Under the Fourth Amendment to the United State Constitution, there is no “seizure” unless an individual is physically detained or submits to an order to stop.

Under the Pennsylvania Constitution, however, a seizure occurs whenever the police restrict someone’s movement, request identification, or asks someone a question regarding criminal conduct. The key issue in many illegal search and seizure cases is the level of the encounter with the police as the level triggers certain constitutional protections under the state and federal constitutions. The greater the degree of police action, the greater level of protection a person has under the Fourth Amendment to the U.S. Constitution and Article I Section VIII of the Pennsylvania Constitution.


2. QUESTION – What is the difference between our rights under the US constitution and our rights under the state Constitution like Pennsylvania and New Jersey?

ANSWER: It’s important to understand that while the U.S. Constitution provides an individual with protection against unreasonable searches and seizures, the Pennsylvania and New Jersey Constitutions (Article 1, Paragraph 7) provides even more protection in this area.

While no state may provide less protection than what is required in the Constitution, there is no prohibition against a higher level of protection. When we speak about constitutional law it includes federal and state statutes and case law. In many situations, state constitutions fill in the gaps left by the U.S. Constitution


3. QUESTION – Is every interaction or contact with police covered by the constitution?

ANSWER: No. There are 3 types of police interactions

Mere Encounter

This is the lowest level of interaction is a “mere encounter.” A mere encounter occurs when a police officer engages in a non-coercive, nonthreatening conversation with someone and that person is free in theory to leave without speaking to the officer.

A “mere encounter” doesn’t provide someone with any constitutional protections. Without constitutional protections, that person can’t assert any type of right against this confrontation with police. The standard a court uses is that of a “reasonable person.” This test is based on the totality of the circumstances surrounding the confrontation. Courts look at such factors as the position of the individual and the officer, the officer’s tone of voice, requests made by the officer during the interaction, and any other relevant factors.

Investigative Detentions

An investigative detention, unlike a mere encounter, allows a person to invoke constitutional protections. Investigative detentions, however, do not require that a police officer to advise a suspect of his or her Miranda rights to remain silent and so on, but they do allow the officer to conduct a frisk of the individual if, based on the officer’s observation, training, and experience, the individual is likely a threat to the officer or likely possesses contraband.

Custodial Detentions/Arrests

An arrest is the highest level of police contact with an individual and puts in motion the highest level of constitutional protections. There are many situations, however, in which a person is arrested but the arrest occurs much earlier than the actual time when the person is formally taken into custody. This is a critical issue in many criminal defense cases in Pennsylvania and New Jersey. A custodial detention again is based on a totality-of-the-circumstances analysis, and courts look at a number of factors to determine if this classification is appropriate.


4. What should a person do if police stop their car?

ANSWER: Be polite but never give police consent to search their person or a car. Giving consent waives your constitutional rights and severely limits your attorney’s ability to fight your criminal case. If police want you to take a field sobriety test tell them if you have any physical limitations. Don’t refuse a breathalyzer or blood test.  A refusal is much more difficult to defend than a bad breath test or in the case of blood test, a lack of a search warrant