ARE RED LIGHTS IN YOUR REARVIEW MIRROR

A DETENTION?

BY

MARY DE LA PEÑA, ESQ.

AUTHOR OF A LAYMAN’S GUIDE TO CRIMINAL DEFENSE

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Have any of you ever been stopped by the side of the road and suddenly an officer pulls in behind you, turned on their red-lights, scaring you to death because you have something in your car you shouldn’t—hmm like too much alcohol or even illicit drugs?

What the Hell, you think? Why are the police stopping me, and what do I do now?

The legal question for your attorney, not you, because you must always be respectful and polite or face going to jail because you are a jackass, is whether or not you were “detained” and had to “submit to authority”, making the contact you had with the police “non-consensual”.

Those are a lot of words that may mean nothing to you, so let me explain, then tell you what your recourse can be.

First, the question for the courts is whether or not you were “detained”, meaning did the officer have you in custody, and did you feel “free to leave”? Of course you didn’t feel free to leave. Is the court crazy? What person in their right mind thinks it’s okay to leave when a cop has their red and blue lights flashing in your rearview mirror?

That was the very issue facing the California Supreme Court in a decision they handed down on August 6, 2015 in a case entitled People v. Brown (Shauntrel Ray Brown) 2015, Cal.4^th, when an officer lit-up a car parked in an alley and found a very intoxicated Mr. Brown. The short answer is “yes” a detention takes place when the officer activates their emergency lights, but then the question is whether or not what happens next is consensual requiring that the officer be able to state that they had a reasonable suspicion a crime had occurred and the person stopped committed it. Without that, all the evidence surrounding the stop can be kept out of court with a motion to suppress.

Sounds easy, right?

Wrong. After handing down what appears to be a very simple, bright line approach to the case of Mr. Brown, the court then went on to weasel around it by saying what was “reasonable at the time” based on the totality of the circumstances. Unfortunately for Mr. Brown, he was in the alley where a call had just come in from a citizen saying a fight was in progress and someone had a gun. That sent the police to that area, and Mr. Brown was in the same area.

Of course any police officer worth their salt would stop Mr. Brown and ask him about the fight. Again, unfortunately for Mr. Brown, he was on his ass drunk! He smelled of alcohol, had slurred speech, and just was too drunk to answer the officer’s questions. Of course the court held that because of the call of the fight, and because Mr. Brown was in the same alley, under the circumstances present at the time of the officer activating his lights, the officer had a justified reasonable suspicion that required and investigative stop.

What does that mean for you?

It means that any reasonable person would not feel free to leave when an officer activates his emergency lights. It also means that your attorney should explore suppressing the evidence obtained as a result of the detention, and you must explain loudly clearly that you did not feel free to leave, and if you said “yes”, the officer could search, it was because you thought you had to say “yes” or go to jail. This makes the contact “non-consensual” and may lead to the suppression of the evidence. More importantly, speak loudly and clearly, but respectfully, into the officer’s recorder that you do not want them to search you or your vehicle.

Remember two things from this:

1. ·         Don’t be a jackass on the street because you could get shot;
2. ·         Just because an officer asks to search, you don’t have to let them.

Always, on the street, stay safe and submit. Let your attorney assert your rights so you stay alive to fight your case in court.