You’ve been pulled over … now what?
You are traveling along a Colorado street or highway and, looking in your rear view mirror, you instantly lock your eyes onto a police car’s activated emergency lights. And the officer is right behind you. Expecting your emotional state to go from whatever-it-is-at-that-moment to worse, your next thought is “Now what?”
The answer to the question is “It depends.” It depends on the intentions of the police officer conducting your traffic stop. Colorado law recognizes three types of officer – citizen encounters: (1) consensual interviews; (2) investigatory stops (also called Terry stops); and (3) arrests.
A consensual interview is defined under Colorado law as involving two elements: (1) voluntary cooperation on the citizen’s part, and (2) non-coercive questioning conducted by the officer. An example of this is a police officer seeing a person walking on a sidewalk, approaching this individual and asking him or her what the person is doing. Because this encounter relies upon the cooperation of the citizen, constitutional rights like protection from unreasonable searches and seizures are not implicated. Conversely, because it is reliant upon a private actor’s cooperation, the person being questioned should have the right to simply walk away from the encounter and suffer no ill effects.
Arrests are completely different encounters. An arrest means an individual is detained, placed in handcuffs and is no longer free to leave. He or she is going to jail and facing an accusation of committing a crime. For an arrest to be valid, it must be supported by probable cause. Probable cause to arrest requires that, at the time an arrest is made, the police have probable cause to believe a crime has been or is being committed and probable cause to believe the person to be arrested has committed or is committing the crime. Because an arrest is a severe restriction on a citizen’s freedom, it implicates an individual’s constitutional rights like the U.S. Constitution’s Fourth Amendment prohibitions on unreasonable searches and seizures. If an individual is arrested, a prudent officer should provide the detained person with a Miranda advisement (“You have the right to remain silent…”).
The intermediate encounter, called the investigatory stop (or a Terry stop), can be the trickiest encounter for a citizen to navigate. An investigatory stop is a limited seizure of a person who an officer, with reasonable articulable suspicion, believes is committing, has committed or is about to commit a crime. Stopping and seizing a person based on reasonable articulable suspicion requires less proof than that required for probable cause to arrest. An investigatory stop is also supposed to be brief in duration, limited in scope and narrow in purpose. What makes these tricky is that many aspects of investigatory stops can look like full-blown arrests. For example, a police officer may order a person out of his or her vehicle during an investigatory stop; law enforcement can pat a person down for weapons during a Terry stop; and, in certain circumstances, may even draw firearms on an individual during an investigatory stop. While a Terry stop does invoke constitutional rights protections like the Fourth Amendment, it does not mean that police are required to provide Miranda warnings. Any statements made by a person pursuant to an investigatory stop may be used as evidence in the absence of a Miranda advisement.
Therefore, if a citizen gets pulled over by an officer, it is very important to figure out the nature of the encounter. Straight up ask the officer: “Am I being detained or is this an arrest?” If the stop is consensual and the person does not want to engage police, he or she can politely disengage and leave. If the encounter is an arrest, the citizen cannot leave and should take advantage of every constitutional right he or she has at that moment – do not consent to any searches, do not make any statements, and request an attorney. If, upon asking, the police officer states the encounter is an investigatory stop, the private citizen should provide whatever information is required under law (driver’s license, vehicle registration and proof of insurance) and follow reasonable requests made by the peace officer. However, he or she should be very suspect about answering questions posed by a law enforcement official beyond name and date of birth. Such admissions made during an investigatory stop may cause the individual to set him- or herself up for arrest and incarceration.
If you have questions about a recent traffic stop or are facing legal action resulting from interactions with a police officer after being pulled over, contact us for a free consultation.
- People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo. 2001)
- People v. Johnson, 865 P.2d 836, 842 (Colo. 1994)
- People v. King, 16 P.3d 807, 813 (Colo. 2001), citing People v. McCoy, 870 P.2d 1231, 1235 (Colo. 1994)
- U.S. Const. amends. IV, XIV; also codified under the Colorado Constitution at Colo. Const. art. II, § 7
- Miranda v. Arizona, 384 U.S. 436 (1966)
- Named after the case of Terry v. Ohio, 392 U.S. 1, 30 (1968)
- People v. Ball, 2017 CO 108, ¶ 9
- People v. Garcia, 11 P.3d 449, 453 (Colo. 2000)
- Id., citing People v. Tottenhoff, 691 P.2d 340, 343 (Colo. 1984)
- People v. Sutherland, 886 P.2d 681, 686 (Colo. 1994)
- People v. Fields, 2018 CO 2, ¶ 12
- People v. Archuleta, 980 P.2d 509, 513-14 (Colo. 1999)
- People v. Hughes, 252 P.3d 1118, 1122 (Colo. 2011)
- §§ 42-2-101(3), 42-3-113(6), 42-4-1409, C.R.S.
