Your Rights When Pulled Over or Arrested in Arkansas

Getting pulled over or arrested is a stressful situation that no one hopes to experience. Knowing your rights and how to assert them in these tense moments can save you from many headaches down the road. This article will discuss what rights you have during encounters with the police as well as strategies for safely and effectively navigating these situations. 

Understanding Your Legal Rights During Police Encounters

During any encounter with the police, it is important to know what your rights are and how to assert them in a way that is effective, yet non-combative and safe. The following provides an overview of the most important rights for you to keep in mind in the event you find yourself in an encounter with a police officer. 

Your Right to Remain Silent

Beginning with what is possibly the most important right on this list to keep in mind, the right to remain silent is a hallmark of your 5^th Amendment right against self-incrimination.

The Origin of the Right to Remain Silent

It originates from the part of the 5^th Amendment which reads, “No person… shall be compelled in any criminal case to be a witness against himself.” The right to remain silent was first articulated in its present form by the US Supreme Court it’s opinion in Miranda v. Arizona (1966). In this case, the Court held that to better safeguard against self-incrimination, law enforcement must inform suspects who are in custody and subject to interrogation of their right to remain silent. Failure to do so could result in any incriminating statements being excluded from evidence.

What Does “In Custody” Mean?

When is a person deemed to be “in custody”? And what exactly does it mean to be “subject to interrogation”? Generally, a person is assumed to be in custody when they are placed under arrest or their ability to move about freely is significantly restrained.

Interrogation includes anything from direct questioning of a person to specific targeted statements aimed at eliciting an incriminating response. For the purposes of this article, however, it is always wise to assume that any statements you make will be used against you at any point in any encounter with law enforcement.

How should I invoke my right to remain silent?

Understanding the right to remain silent and where it comes from is one thing, but it is just as important to know how to properly exercise your right. This is where things become a little counterintuitive. It is not enough to simply not say anything and remain silent. Instead, and quite ironically, you must affirmatively invoke your right to remain silent by saying so out loud.

This is best done by simply telling law enforcement officers: “I am now invoking my 5^th Amendment right to remain silent.” When you say it this way, it communicates clearly and unequivocally to police that you are not willing to speak, and further questioning on their part would likely be unlawful.

In sum, if you are placed under arrest, the best thing to say when questioned by the police is, “I’m invoking my right to remain silent.”

Your Right to Refuse Consent to Search

Very commonly, police will request permission to search your personal belongings and effects in an effort to gather evidence which can be used against you. This often comes up in the context of traffic stops.

Typically, in such a situation, an officer would need probable cause to search your vehicle. However, if they ask you for permission to conduct a search and you grant it, there’s no longer any need for probable cause or a warrant.

How to Say “No” to a Police Search

Unfortunately, the power-dynamic presented by the circumstances, combined with the way in which these “requests” for permission are often phrased, cause many people to think that they do not have a choice or that they will be punished in some way for saying no. This could not be further from the truth. The reality is that if an officer is asking you for permission to search something, you have every right to refuse to grant them permission.

Furthermore, you do not have to explain to an officer your reasoning why you are refusing to give your consent. The fact of the matter is, unless an officer has probable cause or a warrant (or there are exigent circumstances where time is of the essence and more important than any other concern), they do not have the right to search your belongings without your permission.

Exceptions to the Rule

As a general rule of thumb, if an officer is requesting permission to conduct a search, you are within your rights to simply say “no”. If the officer ignores your refusal and proceeds to conduct a search anyways, do not resist or become combative. Even though the search may well be illegal, that battle should be fought in the courtroom, not on the side of the road. 

Your Right to Record Police Activity

In Arkansas, you have the right to record police officers in the performance of their duties. This right is an extension of your First Amendment freedom of expression.

Under Arkansas Code § 21-1-106(b), public officers (such as police) are generally not allowed to prohibit a person from using a recording device in a place where that person is legally allowed to be, as long as the act of recording is not interfering with police activity, presenting a risk of danger, or is otherwise unlawful.

When Recording Can Help

Of course, this means there are a number of situations where an officer may lawfully order someone to stop recording. These are going to be very fact-specific, and require judgment calls on the part of the police. In the event you are ordered to stop recording, you may inform the officer that it is your right to record the interaction under the First Amendment. However, if the officer insists, it is wise to comply with the officer’s order. Regardless of whether you think the order is lawful or not, it is never a good idea to escalate a situation with the police.

When to Stop Recording

Overall, recording police encounters can be helpful because it may give you valuable evidence to use later. However, it’s worth keeping in mind that police officers are human like everyone else, and recording them may come off as hostile and escalate what otherwise might be a smooth police interaction.

In general, you should assess each situation individually and weigh the potential value of recording the interaction with the potential risks of escalating the encounter. Finally, if an officer orders you to stop recording, you should comply with the officer’s order. 

Your Right to an Attorney During Arrest or Custody

The right to an attorney, like the right to remain silent, is another extremely important right to keep in mind. Unlike the other rights discussed on this list, however, this right is actually two distinct rights combined as one. The right to an attorney has two facets which stem from the Fifth and Sixth Amendments to the US Constitution.

The Fifth Amendment right to an attorney guarantees you the right to have your attorney present during custodial interrogations, while the Sixth Amendment right guarantees you the right to an attorney during a criminal prosecution after charges are filed by the State.

How the Fifth Amendment Protects You During Police Interrogation

Recall that the Fifth Amendment guarantees you the right not to be compelled to be a witness against yourself (otherwise referred to as the right against self-incrimination). Interestingly, much like the right to remain silent, the Fifth Amendment itself does not explicitly mention the right to an attorney.

Instead, the right to an attorney was created by the Supreme Court as a necessary rule designed to protect the underlying right against self-incrimination, rooted in the Fifth Amendment. The Court’s holding in Miranda v. Arizona, which gave us the right to remain silent, also held that suspects must be informed of their right to an attorney before questioning can begin.

What Happens After You Invoke Your Rights to an Attorney

Importantly, when a suspect invokes their right to an attorney, the police must discontinue all attempts at questioning the suspect, until a reasonable time for the suspect to procure legal assistance has lapsed. Furthermore, once you are able to secure an attorney, any future attempts at questioning must occur in the presence of your lawyer.

This is extremely helpful as it minimizes the possibility that you will inadvertently say something which might be used against you, and it guarantees you the peace of mind that comes with having a lawyer next to you during police interrogation.

Your Sixth Amendment Right to Legal Representation in Criminal Cases

The Sixth Amendment, on the other hand, guarantees the accused in any criminal prosecution the right to have the assistance of counsel in their defense. Due to the sheer complexity of criminal cases, and the stress that is often associated with them, the law does not expect individuals to represent themselves in that process. Being accused of a crime and navigating the criminal justice system is overwhelming enough; no one should have to face it alone.

At the Law Group of Northwest Arkansas, our experienced attorneys are committed to standing beside you at every stage of the process, protecting your rights and providing the steady, strategic advocacy you need when the stakes are at their highest.

Your Rights and Best Practices During a Police Stop

To sum everything up, if you ever find yourself in a situation where you are being pulled over or arrested by the police, here are a few closing tips to keep in mind:

• You have the right to remain silent. The police cannot force you to incriminate yourself. Remember you must affirmatively state that you are invoking your Fifth Amendment rights.
• You have the right to refuse consent to a search of your vehicle, belongings, etc. Unless the police have a warrant or probable cause (with a few limited exceptions), they cannot search your belongings without your consent.
• You have the right to record your interactions with police, as long as they are not causing a disruption, disturbance, or otherwise impeding police activity.
• You have the right to have an attorney be present with you during police interrogations. You must state that you wish to speak with an attorney.
• You have the right to hire an attorney to assist you in your defense once charges are filed by the State.

Contact the Law Group of Northwest Arkansas After a Traffic Stop or Arrest

If you have been arrested or are facing criminal charges, the attorneys at the Law Group of Northwest Arkansas are here to help. We can guide you through the process, protect your rights and provide the support you need. Please call (479) 334-3411 or fill out our online form to schedule a free consultation with one of our attorneys.