1. Stopped By The Police, Now What?
a. Can the police arrest you for refusing to answer questions? ANSWER: No, the police cannot arrest you simply because you will not answer a question. You generally do not have to answer any question that the police are asking you. You can say things such as “I don’t want to answer that”. Fifth Amendment, United States Constitution. It is generally okay to remain silent, but do not provide false statements. W. Va. Code § 61-5-17(a). You are not required to provide your name if an officer asks you to do so, unless the officer stops you and tells you that he needs your name in order to perform his or her job, or if the officer is authorized by statute (law) to ask for your identity. Otherwise, a police officer cannot arrest you just because you did not tell the officer your name. State of West Virginia v Srnsky et al - Supreme Court of Appeals of West Virginia No. 30896. b. What if the officers do not identify themselves? ANSWER: Police officers are not required to identify themselves by law, but they usually wear a uniform. If they are wearing casual clothing while they are acting as a police officer, they would be classified as an "off-duty officer." An arresting "off-duty officer" should have appropriate police identification when performing a permitted off-duty arrest according to Charleston, West Virginia Police Department Policy, Section 11.0 of the Off-Duty Powers of Arrest and Firearms Policy. c. What if an officer just begins speaking to me but does not order me to do anything? ANSWER: If an officer begins speaking to you, you can respond in a calm manner and answer their questions to quickly resolve the situation. If the officer doesn’t order you to do anything you can ask “am I free to go”? If they respond “yes” you can walk away if you are safe to do so. If the response is “no,” it is not a good idea to walk away. You can then ask why you are not free to go. If you do not want to answer, you can say so and the officer must respect your right to remain silent. 5th Amendment. d. What if the officer is not in uniform or identified as an officers but I think it is one? ANSWER: You can politely ask the person if they are a police officer and if you are free to go. Officers are not currently required to identify themselves under West Virginia law. e. Can I tell police I do not want to speak without a lawyer? ANSWER: Yes, you can say you want to stay silent under your 5th Amendment constitutional right until you have a lawyer. Miranda v. Arizona, 384 U.S. at 444 (1966). You can ask the police if you are free to leave. If they say yes, it is safe to do so and you do not have to speak to the police. If the police office says you are not free to leave, you can then ask to speak to your lawyer and remain silent. You have the constitutional right to talk to a lawyer before answering questions, whether or not the police tell you about that right. The lawyer’s job is to protect your rights. Once you say that you want to talk to a lawyer, officers should stop asking you questions. If they continue to ask questions, you still have the right to remain silent. If you do not have a lawyer, you may tell the officer you want to speak to one before answering questions. If you do have a lawyer, keep his or her business card with you. Show it to the officer, and ask to call your lawyer. Remember to get the name, agency and telephone number of any law enforcement officer who stops or visits you, and give that information to your lawyer. f. If I sit down, am I resisting? ANSWER: It depends. If sitting hinders or obstructs a law enforcement officer from acting in his or her official capacity, you may be guilty of a misdemeanor. W. Va. Code § 61-5-17(a). g. If I am stopped in a group, and some kids run, can I run? ANSWER: It is not a good idea to run. If you intentionally flee the police when they are trying to make a lawful arrest or to detain you, you can be guilty of violating the law. W. Va. Code § 61-5-17(d). Even if you did not do anything unlawful, if you run, the police may think this is suspicious and believe that a crime has been committed by you or the group of kids you are with. If the police reasonably believe a crime was committed, they may arrest you. State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973). h. Can I tell others (siblings, for example) to run? ANSWER: No, it is not a good idea to tell others to run. If others have not been stopped or arrested, they can walk away from the police calmly (not run). If others are under arrest or if the police have stopped them, it is not a good idea to tell them to run because this could be considered an attempt to hinder or obstruct a law enforcement officer acting in his or her official capacity. This could be considered a misdemeanor and can result in a fine and/or jail. W. Va. Code § 61-5-17(a). Also, if you intentionally flee the police when they are trying to make a lawful arrest or to detain you, you can be guilty of a crime. W. Va. Code § 61-5-17(d) Attempting to run could also give the police reason to believe that a crime has been committed, which could then give the police a reason to stop the group. W. Va. Code §61-5-17(a). i. If the officer's language is not my first language, can I tell them without waiving my rights? ANSWER: Yes, you can tell police officers you need an interpreter without waiving your rights. You can only waive your rights voluntarily, knowingly, and intelligently, so you will want to be certain that you understand what the officer is asking before you make any statements. Miranda v. Arizona, 384 U.S. at 444 (1966). You cannot waive your "Miranda Rights" if you do not understand the language used by the officer to communicate them to you. To aid you in not waiving your rights, it is a good idea to tell the officers that you want to speak to an attorney, who will assist you in not waiving your rights and obtaining an interpreter as needed. j. If I did not do anything, can they stop me? ANSWER: Police must have a reasonable suspicion to believe that you are involved in criminal activity to stop you. This could include that you ran away or tried to hide something from the Police. It could also include that you match the description of someone the Police are looking for. Terry v. Ohio, 392 U.S. 1 (1968). If you do get stopped, you have the right to remain silent. Fifth Amendment, United States Constitution. |
2. When can Police search you and your surroundings?
See e.g. Terry v. Ohio, 392 U.S. 1 (1968); 4th Amendment; W.Va. Code § 62-1A-10 (motor vehicle searches). a. What if a police officer wants to search my phone? ANSWER: In general, the police cannot search your phone without a warrant. Unless you give your express consent (agreement) or there is a warrant, the police do not have the right to look through the contents of your phone - even when you're in their custody. Riley v. California, 573 U.S. 373 (2014). You cannot be required to use your face, thumbprint, or password to unlock your phone unless you give consent to unlock your phone, or police have a warrant to search your phone. Riley v. California, 573 U.S. 373 (2014). This is true even if the police have taken your phone. b. What if a police officer asks me for my password to my phone? ANSWER: You can say "no." You do not have to provide your password to your phone. In the event police want to search your device, they must have a warrant to do so. Unless you give your express consent or there is a warrant, the police do not have the right to look through the contents of your phone - even when you're in their custody or are under arrest. Riley v. California, 573 U.S. 373 (2014). c. What if they tell me to give them my password or other access to my phone? ANSWER: You do not need to provide your password or other means of access to your phone unless police have a warrant to search it, or you give your consent to search it. If police have a warrant, you may be required to provide your password to unlock your phone. Riley v. California, 573 U.S. 373 (2014). However, a federal court has determined that irrespective of whether police have a warrant, they cannot force someone to use their thumb, face or other biometrics to unlock their phone. d. Do I have to give them my device password if they demand it from me if I am not under arrest? What if they just ask for it? ANSWER: No, unless you give your express consent or there is a warrant, the police do not have the right to look through the contents of your phone - even when you're in their custody or under arrest. Riley v. California, 573 U.S. 373 (2014). e. What tools can police use to search me? What technology? (Facial recognition, hidden cameras, finger print searches, etc.) ANSWER: A "search" is a legal term according to which the police may search for evidence from or on you to use against you in criminal proceedings. Certain types of searches need to be authorized by the court, such as listening devices and phone tapping: W. Va. Code § 62-1D-8, §62-1F-2. Police will need a warrant for such search technology in order for any evidence gathered to be used against you. Riley v. California, 573 U.S. 373 (2014). f. Can they search my backpack or other item I am carrying? ANSWER: Generally no, unless the police have a warrant to search your backpack, or if they have reasonable suspicion that you have committed, are committing, or are about to commit a crime and are under arrest. 4th Amendment; United States v. Robinson, 414 U.S. 218 (1973). You do not have to consent to a search. Police may pat down the outside of your clothing or accessible container (like a purse or a backpack) if they suspect you are carrying a weapon, even if you do not consent. Terry v. Ohio, 392 U.S. 1 (1968). g. Can they take my picture or record me? ANSWER: Generally, under West Virginia law, recording anything said by a person who is unaware that he or she is being recorded is prohibited. W. Va. Code § 62-1D-3(a)(1); W. Va. Code § 62-1D-2(h). Currently in West Virginia, there are no laws authorizing the use of body cameras by law enforcement. Charleston Police policies indicate that officers are instructed to turn on cameras in their patrol car. Charleston, West Virginia Police Department Guideline 21.1, which acknowledges that "field interviews" (questioning of people by police officers on the street or in the community) are voluntary h. Can they ask me where I am going and why? ANSWER: Yes, they can ask you, but you do not have to answer questions about where you are going. If you wish to exercise your right to remain silent, tell the officers you are. 5th Amendment, US Constitution. Additional information can be found at: Charleston, West Virginia Police Department Guideline 24.1, which acknowledges that "field interviews" (questioning of people by police officers on the street or in the community) are voluntary. |
3. Reasons Police may detain or arrest you
a. What if I did not do anything illegal, must I speak with the police and answer questions? ANSWER: No, you are not required to speak with the police or answer questions. However, the law permits police officers to approach you in a public place to ask information and it may be best to calmly and respectfully answer any questions. However, you do not have to submit to questioning, and you may ask officers if you are “under arrest” or if you are “free to leave.” If the police reasonably suspect that you are committing, have committed, or are about to commit a crime, they may detain you for questioning. Terry v. Ohio, 392 U.S. 1 (1968). You can exercise your right to remain silent and ask for an attorney. Fifth Amendment, United States Constitution. b. What if they tell me something they are investigating that is wrong? Must I correct them? ANSWER: No, if the investigating officer tells you something that is that is incorrect or false, you can exercise your right to remain silent and ask for an attorney. Fifth Amendment, United States Constitution. However, if you say something incorrect to the officer or the officer misunderstands you, you should correct them because giving false or misleading information to a West Virginia state police officer violates state law. W. Va. Code §15-2-16. Additional information and guidance is available on the ACLU website: https://www.aclu.org/know-your-rights/stopped-by-police/ Please note that this is an article and not legislation or case law. We cannot be sure that such information is up-to-date. We do not promote specific websites. c. What if an officer just begins speaking to me but does not order me to do anything? ANSWER: You do not need to respond, you may remain silent and walk away. Fifth Amendment, United States Constitution.. If police order you to stop, or place you under arrest, it is a good idea to stop immediately and must not resist. It is a violation of state law to interfere with an officer who is lawfully attempting to stop or detain you. W. Va. Code § 61-5-17 Additional information and guidance is available on the ACLU website: https://www.aclu.org/know-your-rights/stopped-by-police/ Please note that this is an article and not legislation or case law. We cannot be sure that such information is up-to-date. We do not promote specific websites. d. What is the legal difference between talking to the police if they do not tell me I am under arrest, versus after they inform me that I am under arrest? ANSWER: Before you are arrested, police do not need to tell you your full set of rights. If you respond to any police questions, they may or may not use this information against you. You do not need to answer police questions, you can exercise your right to remain silent. Fifth Amendment, United States Constitution. Once you are under arrest, police can and will use anything you say against you. The police must advise you of your rights (called a “Miranda Warning”). You may remain silent, refuse to answer any questions, and request the presence of a lawyer to represent you. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda Rights confirm the constitutional rights granted by the Fifth Amendment. These consist of four parts:
If you answer questions after being read your rights, your answers can be used against you. Miranda v. Arizona, 384 U.S. 436 (1966) Additional information can be found at: http://www.mirandarights.org/prearrestquestioning.html |
4. The difference between police TELLING me what to do and asking me to do something.
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a. What is the difference between the police deciding to search me or my belongings (phone, person, backpack) and me agreeing to the search? ANSWER: Police need a warrant to search you (West Virginia Code §62-1A-2) unless an exception applies, such as when: you consent to be searched; the search is necessary to prevent imminent danger; you have already been arrested; and/or an illegal item is plainly visible. Police can also stop you and pat you down you if they have “reasonable suspicion” that a crime has been, is being, or is about to be committed. 4th Amendment; Terry v. Ohio, 392 U.S. 1 (1968). If the police search you unlawfully, some or all of the evidence that they recover may or may not be used in court against you. (Katz v. United States, 389 U.S. 347 (1967). If you agree or consent to the search, everything police find during their search can and will be used as evidence against you. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). If the police ask you to do something, rather than tell you to do something because they have a warrant, you do not have to comply. You can ask the officers whether they are asking you or telling you. b. What if they tell me to give them information versus them asking and me providing answers voluntarily? Police may stop and ask you questions, but if it is a voluntary stop (i.e., you consent to talk and you are not being detained), you are allowed to refuse to answer questions and walk away. If you are being detained, you can remain silent and tell them that you would like to remain silent. Fifth Amendment, United States Constitution. If you voluntarily give them information, they can use this information as evidence against you. |
5. Do police need a warrant to arrest you?
a. If I did not do anything, can they stop me? ANSWER: Yes. Police can stop you without a warrant as long as they have "reasonable suspicion" that you are engaging in unlawful behavior. "Reasonable suspicion" can include officer's intuition or that you match the description of another person of interest. See Terry v. Ohio, 392 U.S. 1 (1968). b. Can I ask for the reason they stopped me? ANSWER: Yes, and you can ask the police if you are being detained or if you are free to go. c. Can I advocate for another young person stopped by police if we are stopped together? You may want to be careful about speaking up on someone else's behalf, especially if that person is being detained, because obstructing or interfering with an officer who is performing their duties is a misdemeanor W. Va. Code. § 61-5-17. You can help other people by modelling behavior. You can record everything that happen with your phone, and the write down identifying details. (Fifth Amendment to the US Constitution). d. If I think the stop is unjustified, what can I do? You can ask the officer why you were stopped and you do not have to answer their questions, as long as you do not interfere with what they are doing. The best thing to do is write down everything you remember, including officer’s name, badge and car number, and which agency the officer was from. Get contact information of any witnesses. Then, file a complaint with the agency. Additional information and guidance is available on the ACLU website: https://www.aclu.org/know-your-rights/stopped-by-police/ Please note that this is an article and not legislation or case law. We cannot be sure that such information is up-to-date. We do not promote specific websites. e. Can I get the officer's identifying information for a future complaint? Yes. You can write down any identifying information you can remember about the officers, including their name, the agency they work for, and their patrol number. You can then make a complaint on the agency website. Additional information and guidance is available on the ACLU website: https://www.aclu.org/know-your-rights/stopped-by-police/ Please note that this is an article and not legislation or case law. We cannot be sure that such information is up-to-date. We do not promote specific websites. |
6. How do you know if you are under arrest?
a. What if I do not know if I am under arrest? You can ask the officer if you are free to leave. If the officer says no, then you are being detained. You can then ask if you are being arrested. b. What is the difference between detention and arrest? ANSWER: The police only need “reasonable suspicion” to detain you, which means they must have reason to think that you were involved in or were about to be involved in committing a crime. United States v. Henley, 469 U.S. 221 (1985). Detentions are temporary and last for a short amount of time since there is no criminal charge at this time. Police do not have to read you your rights during a detention. A detention is an investigatory stop where police may ask you questions. Once the questioning is over you may be released. Terry v. Ohio, 392 U.S. 1 (1968). A detention may turn into an arrest. See, e.g., United States v. Mitchell, 963 F.3d 385 (4th Cir. 2020). To arrest you, police must have probable cause (which is a higher standard than “reasonable suspicion”), which means that there is a high probability that you have been involved in, or will be involved in, criminal activity. Terry v. Ohio, 392 U.S. 1 (1968). Arrests last longer than detentions. During an arrest, you are taken into custody, which means that you are prevented from leaving even after a short amount of time, and the police must read you your rights. Miranda v. Arizona, 384 U.S. 436 (1966). c. If I am handcuffed, am I arrested? ANSWER: Most likely, yes. If you are handcuffed and unable to leave after a short amount of time, you are under arrest. You should ask the officers whether you have been arrested. Handcuffs does not automatically mean you have been arrested, if you are let go after a short amount of time. Police officers may restrain people or suspects if the police have concerns for presence of weapons and their own safety. d. If my liberty is restricted, am I under arrest? ANSWER: Not necessarily. Your liberty can be restricted if a police officer stops you because the officer has reason to think that you were involved in or were about to be involved in committing a crime. United States v. Henley, 469 U.S. 221 (1985). This is called a detention and is different than an arrest.. Detentions are temporary and last for a short amount of time since there is no criminal charge at this time. A detention is an investigatory stop where police ask you questions. Terry v. Ohio, 392 U.S. 1 (1968). Once the questioning is over, you may be released. A detention may turn into an arrest. If your liberty is restricted for more than a short period of time and you do not feel free to leave, then you likely are under arrest. You are in police custody when you do not feel free to leave or you are under arrest. You should ask officers to clarify if you have been arrested if they have not told you that or you have not given you a warning about your rights. United States v. Debolt, 2009 U.S. Dist. LEXIS 103187 (N.D.W. Va. Nov. 2, 2009). e. Can I advocate for another young person stopped by police if we are stopped together? ANSWER: It is a good idea to be careful about speaking up on someone else's behalf, especially if that person is being detained, because obstructing an officer who is performing their duties is a misdemeanor See W. Va. Code. § 61-5-17. You can help other people by modelling behavior. You can ask if you are free to go and if not, you can say that you want to remain silent and do not consent to any searches. (Fifth Amendment to the US Constitution). |
7. What to do after being warned of your rights
a. How do things change if I am read my rights by police? ANSWER: Being read your rights means that you are about to be in police custody. Your rights include the right to remain silent, the right to an attorney before they question you, and your right to know that anything you say can be used against you in a court of law. If the police fail to do this, anything you say without being warned cannot be used against you in court. If you want to invoke your right to remain silent and/or to have a lawyer present, you should say so because the police cannot keep questioning you. Miranda v. Arizona, 384 U.S. 436 (1966). b. Does it matter where I am when the police read me my rights? (street, station, police car, etc.) ANSWER: No, it does not matter where the police read you your rights. The police can read you your rights on the streets, in their office, in a police car or in prison. Being read your rights truly means that you are in custody of the police. You do not have to be formally arrested in order for the police to read you your rights. United States v. Debolt, 2009 U.S. Dist. LEXIS 103187 (N.D.W. Va. Nov. 2, 2009). |
8. Police questioning you
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a. Am I required to make a statement? ANSWER: No, you have the constitutional right to remain silent. You also have the constitutional right to talk to a lawyer before answering questions or giving statements, whether or not the police tell you about that right. The lawyer’s job is to protect your rights. Once you say that you want to talk to a lawyer, officers should stop asking you questions. If they continue to ask questions, you still have the right to remain silent. If you do not have a lawyer, you may tell the officer you want to speak to one before answering questions or giving a statement. If you do have a lawyer, keep his or her business card with you. Show it to the officer, and ask to call your lawyer. Fifth and Sixth Amendments to the US Constitution. b. Must police notify my guardian? ANSWER: If you are taken into custody, the police must immediately notify your parent, guardian, or custodian. If such a person cannot be located, a close relative should be notified. W. Va. Code § 49-4-705(c)(1). It is possible for children to waive their rights to silence and legal counsel without having their parent or counsel present. Whether this is a valid waiver will depend on all the circumstances (e.g. your age and understanding). You do not need to talk to the police without your parent or guardian present - you can say that you want to remain silent until they arrive (if the police want to continue to question you). State v Sugg 193 W Va 388 c. Must I confess? ANSWER: No, you do not need to confess to the police. You have the right to remain silent. Fifth Amendment to the US Constitution. d. What adults can I ask to be with me? ANSWER: If you are taken into custody, the police must notify your parent, guardian, custodian or a close relative (if no one else can be located). West Virginia Code § 49-4-705(c)(1). You can also ask to speak to an attorney. (Fifth Amendment to the US Constitution) e. Who do police have to contact if I am a legal minor? ANSWER: If you are taken into custody, the police must notify your parent, guardian, custodian or a close relative (if no one else can be located). West Virginia Code § 49-4-705(c)(1). If you are arrested and taken into police custody, it is a good idea to not answer any police officers’ questions until your parent/attorney arrives. |
9. How do I contact a lawyer and when?
a. What if I am just a witness? ANSWER: If you are a witness under the age of 16, then you are a "child witness." This means that the courts have to follow special rules when you give evidence. Source: §62-6B of the West Virginia Code. If you are being asked to testify as a witness, whether you are under or above the age of 16, contact a lawyer. If you need help finding a lawyer, contact the ACLU West Virginia (legal intake form link: https://action.aclu.org/legal-intake/wv-legal-intake) or the Legal Aid of West Virginia (call 1-866-255-4370 between 8:30 a.m. and 3:00 p.m., Monday, Wednesday, Thursday and Friday and on Tuesdays from 8:30 a.m. to 12:30 p.m. and 6:00 p.m. to 8:00 p.m. For more information about applying for help go here). |
10. Do Police always have to tell the truth?
a. Can the police lie to me? ANSWER: Generally, yes, police may lie to you, including about the strength of the case they have against you. But this is not without limits. For example, courts tend not to allow police to misrepresent a defendant's legal rights. The limits of police deception are case specific. United States v. Russell, 411 U.S. 423 (1973) b. Do I have to tell the police the truth? ANSWER: Yes, you cannot lie to the police. You may choose to remain silent. You will be guilty of a misdemeanor if you knowingly and willfully lie to police and obstruct an investigation- this can lead to a fine or jail time. W. Va. Code § 61-5-17. |
11. How do I make a compliant if I have questions or feel my rights have been violated?
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REMEDIES: You can submit a complaint by telephone, mail, or email. Even though the police will investigate anonymous complaints, providing your name and contact information will help the police address your situation. If rights violated by State Police You can start by preparing a transparent misconduct report on https://openpolice.org/dept/WV-west-virginia-state-police and submit a formal complaint to: West Virginia State Police Internal Affairs 725 Jefferson Road, South Charleston, WV 25309 304-746-2110 You can submit by phone or mail (use USPS Certified Mail). If complaint submitted on paper, staple a copy of your full OpenPolice.org complaint together with the department form. West Virginia State Police Contact Information: https://www.wvsp.gov/contactus/Pages/default.aspx If rights violated by Charleston Police Department, you can contact the Professional Standards Division On-duty Shift Commander at 304-348-6829 (or Records Division at 304-348-6400). See the FAQs and contact details at http://www.charlestonwvpolice.org/standards.html Mail: Charleston Police Department, Professional Standards Division, PO Box 2749, Charleston, WV 25330 E:mail: comment@charlestonwvpolice.org |
12. What if I feel I was a victim of discrimination or racism?
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REMEDIES: Racial/ethnic profiling is not allowed by the Charleston police department's policy. 14.1.4 Complaints of Racial/Ethnic Profiling http://charlestonwvpolice.org/images/Policy_Procedure_Redacted2021.pdf. You can submit a complaint by telephone, mail, or email. Even though the police will investigate anonymous complaints, providing your name and contact information will help the police address your situation. Telephone: You may call the on-duty Shift Commander at 304-348-6829 Mail: Charleston Police Department, Attention: Professional Standards Division, PO Box 2749, Charleston, WV 25330 Email: Comment@charlestonwvpolice.org
The Charleston Police department website: http://www.charlestonwvpolice.org/feedback.html http://www.charlestonwvpolice.org/standards.html
You can also request help from the ACLU. https://www.aclu.org/about/affiliates?redirect=affiliates
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13. How can I respond to circumstances involving discrimination?
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REMEDIES: If at the time of questioning, a stop or an arrest you think you are being discriminated against, it is best to try and stay calm and not get angry or upset with the police. You can later file a complaint against the Police. Telephone: You may call the on-duty Shift Commander at 304-348-6829 Mail: Charleston Police Department, Attention: Professional Standards Division, PO Box 2749, Charleston, WV 25330 Email: Comment@charlestonwvpolice.org 14.1.4 Complaints of Racial/Ethnic §30-29-10 of the West Virginia Code does not allow racial profiling (i.e., discrimination). This means that the police officers cannot subject you to a traffic stop or a frisk just because of your race, ethnicity, or national origin. |
14. What can you do if the Police perform an improper search? Or I was improperly detained?
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REMEDIES: If you feel that West Virginia State Police have violated your rights by improperly detaining you, you can prepare a misconduct report online through openpolice.org at https://openpolice.org/dept/WV-west-virginia-state-police. From there, you can file the report and complaint to the West Virginia State Police Internal Affairs by USPS at 725 Jefferson Road, South Charleston, WV 25309; or by phone to 304-746-2110. To file a complaint against the Charleston, West Virginia police, you can:
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