If a police officer gives me an order, how can I tell whether or not I'm legally obligated to follow that order? If I ask the officer, is he/she required by law to answer truthfully?

If the police get to order citizens to do whatever they want, under whatever circumstances that they want, then go ahead and post that as an answer.

up vote 48 down vote accepted
  • You don't know.
  • You can't know.
  • And you can't force the officer to tell you.
Detention Status

As a practical matter, you have no way of knowing if you are compelled to follow an officer's order because you are being detained unless the officer volunteers that information (your detention status) which they are not compelled to disclose and have every incentive not to disclose.

Deceptive Conduct

To compound the issue, police encounters are particularly problematic because police officers have a lawful right to engage in deceptive conduct during an investigation including but not limited to lying. You, on the other hand, can be prosecuted for lying to the police conducting an investigation. (See this article for more information.)

Hobson's Choice

Therefore, all things considered, police encounters present a Hobson's Choice. Either comply with every order in an effort to end the encounter quickly. Or try to press the officer to determine whether you are "being detained" or "free to go." The former course of action voluntarily cedes some of your rights. The latter risks "provoking" the officer into making your encounter more difficult, painful or costly than it otherwise might be.

Non-Consent to Searches

That said, you are never under any obligation to consent to a warrantless search of your home or vehicle. Typically, saying, "I do not consent to searches." is usually sufficient if asked. Evidence obtained from warrantless searches is barred from being used at trial unless you waive this right by consenting to the search. See this question (and answers) if you are concerned about the officer falsely claiming you gave consent if you didn't.

I am not an attorney. I am not your attorney. This answer is not legal advice. Please consult an attorney to obtain proper legal advice.

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    You can check your detention status by asking the officer if you are free to go. – Viktor Sep 17 '15 at 13:33
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    Look if the police don't answer, ask them again very loudly, so passerbys can hear, or inform them you will begin to record the conversation with your phone(something you have a first amendment right to do). Ask again in a way you have evidence of you asking. If they don't reply to the question, say that you're exercising your right to remain silent and begin to leave. If they yell stop, a reasonable person would believe they are not free to leave, which is the moment you are legally detained. – Viktor Sep 17 '15 at 17:45
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    That may not be the case in all jurisdictions. In my state, you are required to get the consent of both parties when recording a conversation, and I can find no reliable evidence that exempts police officers. However, I'm not a legal expert, so my search may have been lacking. – Azor Ahai Dec 29 '15 at 6:03
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    @DigitalFire: That approach won't work. It is bad advice because it could make your situation worse. The purpose of detainment is to investigate the alleged crime and acquire probable cause necessary to make an arrest. The standard of for detainment is reasonable suspicion (Reasonable suspicion is lower than probable cause.) If you attempt to leave while you are being detained (even if the detainment has not been announced) then you could hand the officer the reasonable suspicion they need to arrest you. Further, you might also be guilty of not cooperating with an investigation. – Mowzer Sep 22 '16 at 20:09
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    If I asked an officer if I was 'free to go' and they didn't answer, I'd probably tell them that if they don't tell me that I'm being detained that I'll assume that I am not and walk away, before I actually walk away. Doing that is 'probable cause?' – mark b Feb 6 '17 at 17:59

First, you have to know your own rights.

There are detailed laws that describe what police can do and how they are supposed to do it. Unfortunately, none of their duties include "informing citizens of their legal rights," with the sole exception of informing a detainee of his right to a lawyer, and then only if the officer cares about the admissibility of the detainee's statements in court. The police have the same rights to lie in their official capacity as do all citizens in their personal capacities. I.e., unless an officer is giving sworn statements, he can lie without legal repercussion.

Furthermore, it appears that police give unlawful orders and take unlawful actions with enough frequency that many large departments are engaged in constant legal battles with watchdog and advocacy organizations like the ACLU.

So, if you are given an unlawful order you have two choices:

  1. Resist and hope that the officer chooses not to escalate the situation by, for example, arresting you.
  2. Follow it anyway to reduce the risk of an escalating conflict.

If you suffer harm or your rights are wrongfully infringed by a law enforcement officer the best you can hope for is that someone in his chain of command steps in to stop the impropriety. Otherwise, the reality is that any vindication will come (if at all) at the end of a long judicial process.

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    The question is how do I tell if the order is lawful? If an officer tells me I need to go across the street to continue filming their violent actions How do I know if I am actually required to follow those instructions? – Chad Jun 15 '15 at 15:56
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    @Chad: That is an even more difficult question, especially because police have so many discretionary/perceptual safe harbors. To the degree that statutes and the guidance of sites like the ACLU don't make strong statements about a citizen's rights, the answer falls into the "consult a lawyer" category. If one has a a friendly Police Chief or local Prosecutor one might get them to weigh in on a hypothetical situation. – feetwet Jun 15 '15 at 16:20
  • So then you are saying this question is too broad to be answered? – Chad Jun 15 '15 at 17:04
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    @feetwet "consult a lawyer" is actually a bad answer for this kind of question, because you often do not have time to consult a lawyer between the time when the officer gives you the order, and the time in which you would have to comply if it indeed is a lawful order. – Sam I am Jul 20 '15 at 16:10
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    @SamIam: I agree that it's not an especially helpful answer, but I don't of a better one than I gave in my June 15 comment. – feetwet Jul 20 '15 at 16:22

Police officers do not get to order citizens to do "whatever they want"!

In traffic stops, police often ask (in a tone that could be construed to sound like a demand) to search your vehicle during a traffic stop. More often than not, people assent even when they have illegal drugs, weapons, and all other manner of illegal things! The police do not have a right to search your car just because they are suspicious.

However, they also don't need a warrant if there is probable cause to legally search your vehicle. Probable cause means the police must have some facts or evidence suggesting a crime is taking place. Some example of PC are (1) an informant/witness told the police they saw you place something illegal in your car; (2) they see something illegal during the stop - like a weapon or a drug baggie - in plain view: (3) you or a passenger makes an admission (it happens more than you think); (4) they smell marijuanna in states where it has not been decriminalized and where you do not have a passenger (when you have a passenger, smell is no longer adequate probable cause in a decriminalized state, as the passenger could have been smoking/carrying it). If there is no passenger, probable cause may exist if you are exhibiting signs of operating under the influence.

These are only some limited examples. The point is that an officer’s hunch (even reasonable suspicion) without evidence of illegal activity is not sufficient to search your car. Before searching, he must observe something real.

If an officer asks to search your car and you have something you do not want found, say NO. Especially if you are not impaired and there is nothing illegal in plain site. Always. Profiling happens all the time and people get arrested and convicted all the time from the fruits of consented to searches that they would/may not have done, or would/may not have had the right to do in the event they did it regardless, giving you a viable way to limit the state's (or Fed's) evidence. They may call in drug dogs (they do not always hit if this is what you are hiding), they may say "if you are not hiding anything, what do you care" - at which point I would say "I care about my right to not be unreasonably detained and searched", especially for no good reason. Nothing good can come from allowing a search for which no cause exists; even if you are perfectly clean. It just perpetuates the abhorrent behavior.

Moving traffic violations (e.g. speeding, broken tail-light, expired sticker) are not considered probable cause to search.

When it comes to asking you to identify yourself, the standard is lower. They need have only a reasonable suspicion a crime is taking place.

ID laws can be complicated on their face, and even more so as they get interpreted by state law courts. The Supreme Court upheld state laws requiring citizens to reveal their identity when officers have reasonable suspicion to believe criminal activity may be taking place. Commonly known as “stop-and-identify” statutes. These laws permit police to arrest criminal suspects who refuse to identify themselves.

As of only a year ago, 24 states had stop-and-identify laws and others were contemplating them. Regardless of your state’s law, you should not be forced to identify yourself without reasonable suspicion to believe you’re involved in illegal activity.

The police need reasonable suspicion to detain. So if you say "I'm doing nothing wrong, am I free to go?", or "are you detaining me?" and the officer says you’re free to go, leave immediately and don’t answer any more questions.

If you’re detained, you pretty much have to give your identity, b/c withholding will just heighten the possibility of being arrested. If you don't think there is reasonable suspicion you have the right to say no, but be aware of the potential consequences. On the other hand, if you’re on probation or parole, in most states revealing your identity will alert them to this and then they will usually have the right to conduct a legal search without probable cause. At this point, you need to exercise your right to keep your mouth shut (remain silent :~)and invoke your right to counsel.

Remember that the officer’s decision to detain you will not always hold up in court. Reasonable suspicion is a vague legal standard, somewhere less that probable cause but loosely defined. So if you’re searched or arrested following an officer’s ID request, you may have a defense that there was not reasonable suspicion; hence, everything to follow is fruit of the so-called poisonous tree.

Lastly, if the police reasonably suspect that you're armed and dangerous, they may conduct a "stop and frisk", which is a quick pat-down of the person’s outer clothing. They may not reach into your pocket if they don't feel a weapon. That is not to say they won't or don't, but they are not legally allowed to do so.

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    What is the difference in the US between "being detained" and "being arrested"? I ask because England and Wales law has no such distinction; if you are not free to go, you are under arrest (even if the office hasn't formally announced that). This is important for the visa waiver scheme where you are asked "have you ever been arrested?". (And if I should ask this as a separate question, please say so.) – Martin Bonner Mar 1 '16 at 8:10
  • In the US, you can be detained by being put in the police car while a probable cause search is conducted, police can detain Without arrest for up to 48 hours if their is PC of a crime to give them time to investigate/question a suspect ( if they don't invoke counsel... If they do then they can hold but not question). – gracey209 Mar 1 '16 at 14:45
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    I don't know much about US criminal law either, but there seems to be some good discussion of this question on Quora. It looks like 'arresting' a suspect might require the police to have 'probable cause' rather than 'reasonable suspicion.' Alternatively, it is suggested that you're only arrested when you are charged with a crime. – sjy Apr 13 '16 at 12:56
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    @gracey209 Since when having a weapon in a car in plain view is illegal? – Vladimir Reshetnikov Jul 29 '16 at 5:13
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    @VladimirReshetnikov if you own a gun or travel with a weapon, or even if you're just interested in the law on these issues the NRA has a decent (albeit somewhat slanted) article that broadly covers the issue. nraila.org/articles/20150101/… – gracey209 Jul 31 '16 at 1:04

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