What should I do if the police stop me and ask me questions?

Cooperate, but don't incriminate! As attorneys who practice criminal law in South Carolina, we know that law enforcement officers have a duty to protect the community they serve, its citizens and their property. South Carolina criminal law lawyers are aware that the law gives police certain powers to help them perform that duty. They have the power to approach persons and ask them questions. Simply because you are approached and questioned by the police does not mean you are suspected of having committed a crime. All citizens are encouraged to cooperate with the police to see that those who break the law are brought to justice, and the police rely on law-abiding citizens to do so. But you are not required to incriminate yourself. YOU MAY REFUSE TO ANSWER ANY QUESTION IF THE ANSWER WOULD TEND TO INCRIMINATE YOU.

Suppose you are walking down a street when a police officer confronts you and announces: “Stop. I need to ask you some questions.” A person is “stopped” when an officer uses enough force, or a show of authority, to make a reasonable person feel he or she is not free to leave. In this example, the officer called out for you to stop, and may have used his or her authority to make you do so. If the officer pulled out a weapon or used a threatening tone of voice, it would be even more clear that a stop has taken place. Because the officer is interfering with your liberty to move about, he or she should first have a reasonable suspicion that you have been involved in a crime. This suspicion would need to be supported later (if the matter should wind up in a court) by the officer’s reference to specific facts prompting such a suspicion.

The police do not have to tell you that you are a suspect or that they intend to arrest you, but if they use force or a show of authority to keep you from leaving, it is likely they consider you a suspect. They may consider you a suspect even if you were the person who called the police. If they read or tell you your Miranda rights, they suspect you have committed a crime.

Just as when an officer merely approaches and questions you, you have the right, if you are stopped, to refuse to answer any questions if the answer would tend to incriminate you.

Further, anything you say can be used as evidence against you. Sometimes people think that what they are saying won’t incriminate them, when in fact, what they say provides a link in a chain of information that could incriminate them.

Even if you believe the officer has no grounds to stop and question you, do not argue with or resist the police. Arguing or resisting the police will not help you; it may increase your chances that the police will arrest you and bring criminal charges against you. It will probably also give them grounds to bring even more criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged. Once officers no longer have grounds to detain you, they should tell you that you are free to go before asking if they can search you or your car.

What are my rights if arrested?

1. You have the right to be told why you are being arrested and the nature of the charges against you (the crime for which you are being arrested). If you are arrested on a warrant, you have the right to see the warrant within a reasonable time after your arrest, to read it and make certain your name appears on it, and to see the charge against you.

2. You have the right to be told your constitutional rights (commonly called Miranda rights) before you are questioned — not before you are arrested. These constitutional “Miranda” rights are:

	The right to remain silent and not answer any questions at all;
	The right to know that if you waive (give up) your right to remain silent and do answer questions, the police can use your answers against you in a court to get you convicted;
	Even if you begin to answer questions, you have the right to stop answering questions at any time and to speak with an attorney;
	You have the right to speak privately with an attorney before you answer any questions or sign anything; If you cannot afford an attorney and if the crime for which you have been arrested has jail time as a possible penalty, you have a right to have an attorney appointed for you (perhaps a public defender) to represent you at no cost to you before being questioned, and to have that attorney present with you during any questioning to which you may later agree to submit.

Note: Unlike what you may see on television or in the movies, a criminal case is not thrown out of court simply because the police did not read the suspect his or her "Miranda" rights. In fact, the suspected murderer, Mr. Miranda, of the now famous case, did not have his case thrown out because his rights were not read to him; rather, he was retried, convicted, and sent to jail.

3. You also have the following rights:

	The right to contact, by telephone or otherwise, a responsible person, to tell them you have been arrested and what the charges are. You are not limited to one telephone call if more are needed to contact such a person;
	The right to refuse any physical or chemical test (such as a polygraph “lie detector,” breathalyzer, intoxilizer, field sobriety tests or physical performance tests such as walking a straight line or making other movements, the look-at-the-pen test, or mental ability tests like reciting the alphabet or doing math), until you can talk to your lawyer;
	The right to have your attorney present at any line-up or other identification procedure in which you are viewed by possible eyewitnesses to a crime;
	The right to reasonable bail or bond to secure your release from jail unless you are charged with a capital crime. Usually a judge sets the bail or conditions of your release. If you are charged with a misdemeanor, and if no judge is available, the police may, at police headquarters, accept bail in accordance with rules established by the judge;
	The right to be brought before a court as soon as is reasonably practicable after your arrest, so that you can request a preliminary hearing to test the basis of your arrest and/or trial to determine your guilt or innocence.

If I am arrested, what will the police do?

If you are arrested, the police will search you for weapons, handcuff you, transport you to jail, and photograph and fingerprint you for identification.

If they don’t have a search warrant (a court order allowing them to search), they may ask you to allow them to search your car, your home and/or your other possessions. You can refuse to consent to these searches.

You have a right to be free from unreasonable searches and seizures; most of the searches for which an officer might ask your consent would require the officer to first obtain a warrant from a judge — unless you consent and give up this right.

You have the right to have a judge decide whether the search is proper before that search is conducted. There is no penalty for exercising your right to have the judge decide whether to allow the search. Your refusal to consent to a search cannot be used against you.

If you are uncertain about how to respond to any request made by an officer, assert your right to counsel and discuss it with your attorney first before taking further action on the officer’s request.

What should I do if I am arrested or in custody?

Do not argue with the police. You cannot talk your way out of being investigated, arrested or prosecuted. Do not try. Any explanation you give the police may give them more information than they already have, so it’s often wise to save your explanation and defenses for court.

Avoid conversing with the police. If you have been arrested, the police believe you committed a crime. Their job is to investigate and gather evidence. Telling the police your side without a lawyer present is usually a bad idea, even if you believe you have done nothing wrong. Only your attorney and the judge have the power to make things easier for you.

Pay attention to what happens when you first encounter the police and afterwards. Try to memorize who was there to see and hear what happened. Sometimes the court needs to look into what happened to you while you were in custody. It will help you if you can later fully inform your counsel about these events, so be observant.

Do not tell your family and friends all about it or ask non-lawyers for legal advice. It is possible they may be ordered to appear at trial to repeat what you said.

Tell your attorney the whole truth. Your lawyer will advise and defend you no matter what you did or did not do.

Can bail be reduced?

Sometimes, depending on the case. Initially, the court sets bail considering several factors, including the severity of the crime and whether the suspect is likely to return to court when the case is called to trial (risk of flight). In deciding whether the suspect is a risk of flight, the court will consider whether the suspect has ties to the state, including whether the suspect is a resident of the state and for how long, whether the suspect has family located in the state, and whether the suspect has other ties such as gainful employment in the state. In legal theory, a defendant is innocent until proven guilty. However, as a practical matter, the court may set bail so high (or deny bail) such that the suspect cannot afford to get out on bond and will sit in jail until the case is called.  As a general rule, the law presumes that the bail that is originally set by the judge is the correct amount. Thus, it is best to attempt to get the lowest bail possible set the first time the suspect appears before the court. Thereafter, to convince the court to lower bail that was previously set, you generally need to be able to show a "change in circumstances." In other words, you need to be able to show how the case is different (in your favor) from the time when the judge originally set bail. Other times, bail may be set by the magistrate's bond court and thereafter reargued before the Court of General Sessions (a higher court). If the bail amount is high and out of proportion to the facts and circumstances of the case, it may violate your constitutional right to reasonable bail. As a cautionary note, in theory the judge redetermining bail may decide that the initial amount was set too low and order that bail be set at a higher amount.

Under what circumstances can I be arrested?

An arrest is different from a stop. A stop involves brief questioning in the place where you were detained. If the officer wishes to hold you for a longer period of time, or decides to take you elsewhere, such as to the police station, he or she is no longer just stopping you, but is arresting you. Because an arrest deprives you of your freedom of movement for an even longer period of time than a stop, the law limits the instances when arrests can be made.

You may be arrested by a police officer who personally saw you violate any state statute, city ordinance or federal law. The law may be a serious crime (a felony) or a lesser offense (a misdemeanor). The important thing is that the officer sees the violation.

If the charge is a minor traffic offense, the law requires the officer to just ticket you (that is, give you a citation that orders you to appear in court later), rather than arrest you. However, if you refuse to identify yourself, or if it appears to the officer that you need medical attention, then he or she can arrest you on this minor traffic offense.

	You may be arrested for a felony, even if the police officer did not personally see you commit the felony, so long as the officer had “probable cause” to believe you committed the crime. Later, the court system (not the police) will determine if the officer’s belief was reasonable and if you are guilty or innocent.
	You may be arrested when there is a warrant for your arrest, whether or not you are aware of the warrant. The police cannot cancel an existing warrant. They must serve it and arrest the person named on the warrant.

An arrest warrant is a legal document, issued by a judge, directing the police or the sheriff to arrest you and take you into custody. The officer must show the warrant to you within a reasonable time after you are arrested and give you a copy. If the officer fails to do so, tell your attorney later.

Even if you believe the officer has no grounds to arrest you, do not argue with or resist the police. You have no right to argue about why you are being arrested or about your guilt or innocence at the time of the arrest. Arguing or resisting the police will not help you. It will mean the police can bring additional criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged. Again, do not argue with the police.

Never resist your arrest. Do not run away. Never resist the arrest of another person.

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If you or someone you know needs criminal defense services in South Carolina, call the Futeral Law Firm locally at (843) 284-5500, toll free at (877) 913-5500, or email info@charlestonlaw.net.

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The contents of this web site are for informational purposes regarding legal issues in South Carolina and are not intended to convey detailed legal advice on specific issues. Transmission of the information contained in this site or any sites linked hereto is not intended to create, and receipt does not constitute, an attorney-client relationship. Our attorneys practice law only in jurisdictions we are properly authorized to do so and do not seek to represent anyone in any jurisdiction where this site does not comply with applicable laws and bar rules. The attorneys of the Futeral Law Firm are licensed to practice law in the State of South Carolina. Readers should not act upon the information contained in this site without first seeking the advice of an attorney licensed to practice in your area.

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