You’re walking down the street with a buddy of yours because you don’t have a car, your license is suspended, or you just feel like walking. The cops roll up, get out of the car with guns drawn, and order you to stop walking. You stop. One of the officers asks you both to get on your knees and put your hands above your head. You do it. Maybe you know why the cops are there; maybe you don’t. Either way, you start talking to your buddy – “What’s going on?” “Is there a warrant out on me?” “Are we going to get out of this ALIVE?” The cop orders you to stop talking and to move away from each other. Again, you do it. So far you’ve done everything right. You’ve done everything the cops have asked. As your buddy is being taken into custody for an outstanding warrant, another officer asks you to slowly back up towards him with your hands above your head. As you are backing up, you tell the officer that you have a gun. You continue to do what you are told and the gun is safely retrieved. As a result, you are charged with first degree unlawful possession of a firearm because of a prior felony conviction.
Now, you probably think there wasn’t anything you could do to prevent this; that if you didn’t do exactly what the cop said, you would get shot. In today’s world, that’s a legitimate concern. But you didn’t have to get arrested, and here’s why: the Supreme Court of the State of Washington took a case just like this…and came down on your side!
In State of Washington v. Flores, the Court held that an officer can legally detain a bystander or companion during the arrest of someone else if the officer can articulate a safety concern for controlling the scene. However, once the arrest has been made, your detention must end unless the officer has reasonable suspicion to believe you are armed and dangerous or have committed a crime yourself. The office cannot continue to detain or frisk you just because you are with someone they believe to be dangerous. There must be some other reasonable grounds to believe you are armed and dangerous to detain you further and pat you down. In the scenario above, the officer had no legal authority to search the friend until he voluntarily told the officer that he had a gun. The friend may have been able to avoid being charged and arrested if he stuck only to identifying himself and asserted his right to remain silent.
Read the full opinion here. (Note: this link contains the slip opinion and the final published opinion may be edited.)
WHAT THIS MEANS FOR YOU:
You have a constitutional right to remain silent — so use it. If you find yourself at the scene of an arrest, officers may have the authority to detain you and secure the scene until they make the arrest. Let them do that. Politely follow their instructions and identify yourself when/if you are asked. After that, you are not required to answer any questions. If you don’t feel comfortable talking to the police, tell them that you would prefer not to answer any questions without talking to your attorney first. If they attempt to pat you down or search through your belongings, tell them that you do not consent to a search of your body or your property. You may end up going to jail anyway, but asserting your 5th Amendment right to remain silent and your 6th Amendment right to an attorney could be the difference between whether the charges stick or get dismissed.
∗ Whether the police have an objective rationale to seize you or probable cause to search or arrest you is heavily dependent on the facts of the case and is best argued in court, after the fact, and not on the streets. This blog post is based on my interpretation of the Washington v. Flores case and legal outcome in this case may not be the legal outcome in your case. If you find yourself in this situation, it is best to contact a criminal defense attorney immediately to protect your rights.