1. Stopped By The Police On The Street, Now What?
a. Can the police arrest you for refusing to answer questions? ANSWER: No. Generally a police officer needs an arrest warrant to make an arrest. However, there are a few exceptions. A police officer can arrest someone without a warrant if they have "probable cause" to believe that the person they wish to arrest has committed an offense. Hawaii Revised Statutes, Section 803-5. What is probable cause? Probable cause exists when a police officer, under the circumstances, has reason to believe that a crime has been committed or is being committed. Hawaii Revised Statutes Section 803-5. [Legal Sources: Hawaii Revised Statutes, Section 803-1 Arrest; by warrant] b. What if the officers do not identify themselves? ANSWER: At or before the time of making an arrest (not after making an arrest), the person making the arrest must declare that they are an office of justice. Hawaii Revised Statutes Section 803-6(a). If the person making an arrest is doing so with a warrant, they should show you the warrant. Hawaii Revised Statutes Section 803-6(a). If the person making the arrest is doing so without a warrant and on the grounds of "probable cause," they should clearly explain the probable cause to you. Hawaii Revised Statutes Section 803-6(a). Together, these provisions mean that, if you are being arrested, you have a right to ask the person to identify themselves as an officer, show you their warrant (if they are relying on one), or clearly explain their probable cause to you. While it could depend on the circumstances, where an officer fails to communicate this information to you when it is requested, such a violation could serve as the basis as an unlawful arrest and help you in the context of a trial. [Legal Sources: Hawaii Revised Statutes Section 803-6(a) Arrest] c. What if an officer just begins speaking to me but does not order me to do anything? ANSWER: Generally, if the officer begins speaking to you in the context of a "casual encounter" (for example, if an officer on the street casually asks you "how's your day going?" without any express or implied purpose of investigating a crime (i.e. if they don't tell you they are investigating a crime and their conduct does make it seem that they are investigating a crime) then you generally don't need to respond or interact with the officer any further. You are, of course, free to respond if you decide to do so, but you are also free to simply walk away in that case. However, sometimes, officers might begin speaking to for the purpose of investigating a crime. When an officer begins speaking to your and tells you they are investigating a crime, or where their conduct implies that they are investigating a crime (for example, if they are asking questions that relate to a crime), you are generally not free to walk away under those circumstances. Such interactions with the police are "investigative stops" or "detentions" and they are considered "seizures" of a person under the law. Generally, to know whether an officer is conducting an investigative stop or detention, ask yourself: "would a reasonable person under the circumstances believe they are free to walk away from the encounter?" If the answer is "no," the officer is likely conducting an investigative stop or detention, and you are not free to merely walk away. If you are being asked a question by an officer and are unsure whether you are free to walk away, consider asking the police officer. If the officer responds with "yes," this means that the interaction is likely consensual and voluntary, and you do not need to respond to the officer's questions. If the officer responds with "no," this likely means that the interaction is not consensual and you are not free to leave, and that it is an investigative stop or detention. An officer conducting an investigative stop must be able to point to specific facts for why they are stopping you. [Legal Sources: Article 1, Section 7, of the Hawaii State Constitution] [Legal Sources: Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868 (1967), and later adopted by Hawaii's Supreme Court in State v. Perez, 111 Haw. 392 (2006)]. d. What if the officer is not in uniform or does not identify as an officer but I think they are one ANSWER: If you suspect someone is a police officer, you can ask them "are you a police officer?" In Hawaii, a police officer must declare that they are an officer of justice before arresting an individual. [Legal Sources: Hawaii Revised Statutes, Section 803-6(a) Arrest; how made] e. Can I tell police I do not want to speak without a lawyer? ANSWER: Yes. You can always tell a police officer that you do not want to speak without a lawyer. If you are under arrest, it is unlawful for the police to deny you access to a lawyer if you have requested one. As a general rule, if you are under arrest, consider speaking to a lawyer immediately. [Legal Sources: Hawaii Revised Statutes, Section 803-9 Examination after arrest; rights of arrested person]. f. If I sit down, am I resisting? ANSWER: No. Simply sitting down, in and of itself, is not enough to make out the offence of resisting arrest. To resist arrest, a person must intentionally prevent an officer from doing his or her job by threatening to use physical force or actually using physical force against the officer. [Legal Sources: Hawaii Revised Statutes, Section 710-1026 Resisting arrest] g. If I am stopped in a group, and some kids run, can I run? ANSWER: It is an offence (misdemeanor) to resist an officer's order to stop a motor vehicle, but it is not an offence to evade arrest by running away on foot in and of itself. However, where an officer knows a crime has been committed, and the offenders are unknown to the police officer, a police officer may have the power to arrest people who are near the place where the crime was committed and either trying to conceal or hide themselves or trying to escape (Hawaii Revised Statutes, 803-4, Arrests on Suspicion). This is because such behaviours allow police officers to form a "reasonable suspicion" and those persons can be arrested without a warrant. It is, therefore, not a good idea to run from police. Running can escalate emotions in already tense situations. It is a better idea to stay calm, listen to the officer, and ask if you are free to leave. If the police officer conveys that you are not free to leave, consider requesting to speak to a lawyer. [Legal Sources: Hawaii Revised Statutes, 710-1027, Resisting an order to stop a motor vehicle; 803-4, Arrests on Suspicion] h. Can I tell others (siblings, for example) to run? ANSWER: While it may be an offence to tell others to run away from police by means of a motor vehicle (Hawaii Revised Statutes, 705-510, Criminal Solicitation), it is generally not an offense to tell others to run away from police by foot. Since running away from police on foot is not an offence under Hawaii's Revised Statutes, including under Hawaii's Penal Code, encouraging others to run away is not necessarily an offense. However, it is not advisable to tell others to run away from law enforcement. It raises suspicion about an individual's guilt, can contribute to a finding of probable cause from the officer, and could hurt your case at trial. Running or concealing yourself from police can give officers "reasonable suspicion" to arrest a person without a warrant, so, by telling others to run, you could be helping the police arrest those people without a warrant. [Legal Sources: Hawaii Revised Statutes, 705-510, Criminal Solicitation; 710-1027, Resisting an order to stop a motor vehicle in the second degree; 803-4, Arrests on Suspicion] i. If the officer's language is not my first language, can I tell them without waiving my rights? ANSWER: English and Hawaiian are the official languages of Hawaii. Officers will address you in one of these two languages. If you do not understand the officer in either English or Hawaiian, ask the officer to have provide you with a translator or lawyer so you can understand your rights and avoid unnecessary admissions. [Legal Sources: 2011 Hawaii Code, §1-13 Official languages] j. If I did not do anything, can they stop me? ANSWER: Yes, under certain circumstances. Even if you did not do anything, an officer might be entitled to lawfully stop you to investigate a suspected crime where the officer can point to specific and articulable facts that, taken together, reasonably justify the intrusion. In other words, whether an officer can stop you might not necessarily depend on whether or not you did anything, but, rather, whether an officer can point to specific and articulable facts that, when considered together, reasonably justify their decision to stop you. [Legal Sources: Article 1, Section 7, of the Hawaii State Constitution] |
2. When Can Police Search You and Your Surroundings?
Some exceptions allowing a police officer to search you and your surroundings without a warrant include:
- If you freely consent (of give permission) to the officer to search you or your surroundings
- Where a police officer conducts an "investigative stop" (they must be able to point to specific an articulable facts justifying a search), they may be entitled to "frisk" you for any obvious weapons
- Where circumstances would make it unreasonable for an officer to obtain a search warrant
- During a motor vehicle stop, an officer may search your vehicle if they have probable cause that your vehicle contains any illegal contraband or evidence of a crime.
[Legal Sources: Article 1, Section 7, of the Hawaii State Constitution]
Additional information regarding Honolulu Police Department policy and procedures is available at: https://www.honolulupd.org/policy/policy-warrantless-searches-and-seizures/]
a. What if a police officer wants to search my phone?
ANSWER: You have privacy rights. A police officer cannot search your phone without either your permission (consent) or a search warrant supported by probable cause. Probable cause exists when a police officer has reason to believe a crime has been or is being committed.
[Legal Sources: Article 1, Section 7, of the Hawaii State Constitution]
[Hawaii Revised Statutes Section 803-5, By police officer without warrant]
b. What if a police officer asks me for my password to my phone?
ANSWER: Without a search warrant or your permission, you do not have to give an officer your password or let them search your phone. A search without your permission or a warrant may be unconstitutional.
[Legal Sources: Article 1, Section 7, of the Hawaii State Constitution]
c. What if they tell me to give them my password or otherwise access to my phone?
ANSWER: Unless the officers have a search warrant or your permission, you do not have to give an officer your password or allow them to search your phone.
[Legal Sources: Article 1, Section 7, of the Hawaii State Constitution]
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: Unless you give them permission or they have a valid search warrant, you do not have to give your password to the officer. An officer is allowed to ask for your phone password, but that does not give them a right to search your device. Just as an officer is allowed to ask, you are allowed to decline.
Even if you are under arrest, the police can only search your phone under limited circumstances. After a person has been arrested, the police may generally search the items on the person and in their pockets, as well as anything they are holding or have immediately next to them, automatically and without a warrant. But the Supreme Court has ruled that police cannot search the data on a cell phone under this warrant exception.
Police can, however, search the physical aspects of your phone (like removing the phone from its case or removing the battery)
In situations where the police believe evidence on your phone is likely to be immediately destroyed, they can search your phone without a warrant.
[Legal Sources: Article 1, Section 7, of the Hawaii State Constitution; Riley v. California, 134 S.Ct. 2473, 2493 (2014)]
e. What tools can police use to search me? What technology? (Facial recognition, hidden cameras, finger print searches, etc.)
ANSWER: Generally, the search must be done reasonably and according to the warrant. However, the answer to this can depend on several things, including how serious the crime you are accused of is. A search warrant needs to describe a place to be searched and the person or things to be seized with in a concrete way, and searches that exceed those boundaries can be found to be unlawful when introduced during a criminal trial.
[Legal Sources: Section 7, Bill or Rights, [Ren and am Const Con 1978 and election Nov 7, 1978]
Generally, the more invasive the search is, the more likely this will violate your privacy rights.
Can school officials search you?
As opposed to school property or a school locker, school officials can search your person only if they have reason to believe, based on the circumstances, that you violated school rules or the law. There are other limitations including:
- No random searches of yourself or your personal belongings, like your purse or backpack
- No strip searches
- No bodily contact or force (unless it’s to prevent immediate harm to the health and safety of yourself or others, or if you physically resist)
- Searches must be limited to the object or objects about which school officials have a reasonable suspicion. If they’re looking for a stolen trombone, they can’t search your purse for it. But if a search turns up other things that violate school rules or the law, officials may seize those as well as the missing trombone.
[Legal Sources: Hawaii Board of Education, Administrative Rules, §8-19-17]
f. Can they search my backpack or other item I am carrying?
ANSWER: Usually, police officer can only search your backpack and other items that you are carrying if they have a warrant. However, there are some exceptions to this rule:
- Search by consent: this is when you give the police officer permission to search you. It is important that your consent be given freely, without the police officer making you feel like you have to consent, and without a promise of anything in return. Remember, you have the right to remain silent.
- Exigent Circumstances: this is when there is an emergency circumstance, such as when there is a danger to life or to prevent serious damage to property. In these cases, officers do not need a warrant.
Remember, even if the police officer is allowed to search you, their actions must be reasonable.
[Legal Sources: Article 1, Section 7, of the Hawaii State Constitution]
g. Can they take my picture or record me?
ANSWER: The police can take pictures of you and record you without violating your privacy rights as long as you are in a public area. However, if you are not in a public area, such as in your home, they will need a warrant to record you and take photos of you if you or anyone else in the recording or photo does not consent.
[Legal Source: Smith v. Maryland, 442 U.S. 735 (1979); Katz v. United States, 389 U.S. 347 (1967)]
h. Can they ask me where I am going and why?
ANSWER: A police officer can ask you where you are going, however, unless a police officer has “probable cause” to make an arrest, “reasonable suspicion” to conduct a “stop and frisk,” or a warrant, you generally have the right to walk away from the officer and do not need to provide this information. An officer has probable cause when the circumstances would lead a reasonable police officer to believe that a crime has been or is being committed (Hawaii Revised Statutes, Section 803-5). An officer has a reasonable suspicion is where an officer can point to specific and articulable facts that suggest a crime was or is being committed. In short, without specific facts that suggest to a police officer that a crime was or is being committed, or without any search warrant, you generally don't need to answer a police officer and are free to talk away. If you are unsure whether you need to respond to an officer's question, consider asking the officer "am I free to go?"
[Legal sources: Hawaii Revised Statutes, Section 803-5, By police officer without warrant]
[Legal Sources: Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868 (1967), and later adopted by Hawaii's Supreme Court in State v. Perez, 111 Haw. 392 (2006)].
3. Reasons Police may detain or arrest you
As noted in other parts of this guidance, police officers may be able to detain you for several reasons, even if you, yourself, know that you are innocent or have done nothing wrong. This can be in the form of an investigative stop where an officer has a reasonable suspicion that a crime has or is currently taking place (Article 1, Section 7, of the Hawaii State Constitution). In that case, the police may arrest you because they suspect you of breaking the law, or if they suspect that you currently have evidence of a crime.
Sometimes, the police will have a warrant for an arrest. If the police tell you they have a warrant for your arrest, you should ask them what kind of warrant they have (Hawaii Revised Statutes, Section 803-1, Arrest by Warrant). However, as noted above, a warrant is not always needed to make an arrest (Hawaii Revised Statutes, Section 803-5, Arrest by Police Without a Warrant). Where an officer has a warrant, it is a good idea to review any paper from police/warrant carefully as this will tell you what the police can and cannot do.
If arrested, you may be charged with a "felony" for a more serious crime (with potential jail time of one year or more), a "misdemeanor" for a less serious crime (with jail time of less than one year) or a violation.
[Legal Sources: Article 1, Section 7, of the Hawaii State Constitution]
[Legal Source: 2013 Hawaii Revised Statutes, Title 37, Section 706-660, Sentence of Imprisonment]
a. What if I did not do anything illegal, do I have to speak with the police and answer questions?
ANSWER: No. If you are not under arrest, you have no have to answer any questions or help with a police investigation. In Hawaii, if you are not under arrest, you do not have to tell the police your name or show them your ID, even if they ask you. If you are arrested or detained, you have the right to remain silent, which means you can refuse to speak with the police; they are not allowed to make you speak to them against your will.
[Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona]
b. What if they tell me something they are investigating that is wrong? Do I have to correct them?
ANSWER: No. You do not have to help the police investigation or correct information or conclusions that are incorrect. Under the Fifth Amendment to the United States Constitution, you are protected from incriminating yourself. This means you do not have to say or do anything that lets the police know that you are guilty of a crime. The burden to prove that you committed a crime is on the police and crown prosecutors, and you generally do not have to prove that you're innocent; rather, they must prove that you're guilty.
However, if given a police officer gives you a "reasonable command" to help and you intentionally refuse or fail to help the police officer in securing an arrest or preventing another arrest, this can be a misdemeanor, or a crime that is generally punishable by imprisonment of less than one year (Hawaii Revised Statutes, §701-107, Grades and classes of offenses). For example, if a police officers commands you to move out of the way so the officer can arrest a person behind you, but you refuse to move and block the officer.
[Legal sources: Fifth Amendment to the United States Constitution; Hawaii Revised Statutes, Section 710-1011 Refusing to aid a law enforcement officer; §701-107, Grades and classes of offenses].
c. What if an officer just begins speaking to me but does not order me to do anything?
ANSWER: It depends on the nature of the interaction. Sometimes, a police officer will ask you something that is not related to any crime or suspected crime, such as "how's your day going" or "do you have plans tonight?" Of course, you are always free to answer if you wish, but, under those instances, you would not need to answer or cooperate; you could simply walk away from the police officer without saying anything.
However, a police officer may stop or detain you to investigate a crime or suspected crime where they are able to point to specific facts for why they are stopping you. The ultimate test is whether a reasonable person would believe that criminal activity was happening. These interactions are commonly known as "investigative stops." In these interactions, you are not free to simply walk away from the police officer. If you are unsure of whether you are being stopped or spoken to by a police officer as part of an investigative stop, you should ask the police officer if you are free to leave or walk away. If the officer responds with "yes," meaning the interaction is consensual or voluntary, then you do not need to respond and can leave at any time. If the officer responds with "no," the interaction is not consensual and you are not free to leave.
[Legal Sources: Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868 (1967), and later adopted by Hawaii's Supreme Court in State v. Perez, 111 Haw. 392 (2006)].
d. What is the legal difference between talking to them if they do not tell me I am under arrest, versus after they inform me that I am under arrest?
ANSWER: Your legal right to remain silent is not triggered until an arrest occurs. Once your arrested, you do not need to talk to police or answer their questions. You have a right to request to speak to a lawyer.
The courts will look at the surrounding circumstances when deciding whether or not you were under arrest. If you are unsure, you should ask the police officer if you are under arrest or if you are free to leave.
[Legal sources: Fifth Amendment, U.S. Constitution; Hawaii Revised Statutes, Section 710-1011, Refusing to aid a law enforcement officer; §701-107, Grades and classes of offenses].
4. The difference between police TELLING me what to do and asking me to do something
What is the difference between the police deciding to search me or my belongings (phone, person, backpack) and me agreeing to the search?
ANSWER:
Generally, the police are not allowed to search you or your belongings without your consent or a valid search warrant, unless you have been arrested. If the police do not have a search warrant or if you have not been arrested, you have a right to refuse to be searched. The police cannot make you consent or make you feel like you have to say yes. Note, however, that there are certain circumstances under which a police officer is allowed to search you or your belongings without your consent or a search warrant. For example, when a police officer is investigating a crime, and can point to and articulate specific facts that appear to implicate you in the crime, they can stop you in the form of an "investigative stop" to ask you questions. During an investigative stop, a police officer is entitled to "frisk" you for potential weapons or dangers to the officer. To know whether an officer is conducting an investigative stop, ask yourself if a reasonable person, under the same circumstances, would feel free to simply walk away from the police officer. If you are unsure, then ask the police officer if you are free to talk away and ask to see a warrant if they answer "yes" but continue to search you or your belongings.
[Legal source: Hawaii Revised Statutes, Section 803, Arrests, Search Warrants]
5. Do Police need a warrant to arrest you?
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No. Police officers can legally arrest you without a warrant in several circumstances:
[Legal source: Hawaii Revised Statutes, Section 803, Arrests, Search Warrants; 803-4, On Suspicion; 803-5, Arrests by Police Without a Warrant] a. If I did not do anything, can they stop me? ANSWER: Yes, under certain circumstances. Even if you, yourself, know that you did not do anything wrong, a police officer might, under certain circumstances, be entitled to stop you. A police officer or other officer of justice, may, without warrant, arrest and detain for examination any person when the officer has probable cause to believe that such person has committed any offense. A police officer has "probable cause" to make an arrest when the facts and circumstances within the officer's knowledge and of which the officer has reasonably trustworthy information are enough to suggest the person was reasonably involved in a crime that was or is being committed. [Legal source: Hawaii Revised Statutes, Section 803-5, Arrests by Police Without a Warrant] b. Can I ask for the reason they stopped me? ANSWER: Yes. As a general rule, a police officer cannot stop you for no reason. In order to conduct an "investigative stop," a police officer must either get your consent or they must be able to articulate specific facts that, under the circumstances, would lead a reasonable police officer to believe that criminal activity is taking place or has taken place. If you don't provide your consent, the police officer does not have a warrant, and the police officer cannot articulate specific facts suggesting that criminal activity has or is taking place, then a police officer generally cannot stop you. As a matter of practice, if you are unsure, consider asking the police officer why you are being stopped and whether you are free to walk away from the interaction. [Legal Sources: Article 1, Section 7, of the Hawaii State Constitution] c. Can I advocate for another young person stopped by police if we are stopped together? ANSWER: Yes you can legally, but it is a good idea to be careful. Remember that anything you say during an interaction with a police officer may later be used as evidence against you if you are charged and your case goes to court. Be careful not to volunteer any statements that could potentially be detrimental to you or the other person. [Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona] d. If I think the stop is unjustified, what can I do? ANSWER: Remember, even if you know you did nothing, police officers can, under certain circumstances, be entitled to stop you to investigate suspected criminal activity. A police officer cannot stop you for no reason; rather, for a stop to be justified, it must constitute an "investigative stop," which means that a police officer can articulate specific facts that would lead a reasonable police officer in the circumstances to suspect that criminal activity has or is taking place. In other words, a police officer does not necessarily need to be certain that you were involved in criminal activity to stop you; rather, they must be able to point to facts that suggest you were. This means that, even if you, yourself, know that you did nothing wrong, it may be a good idea to cooperate with the police officer and ask whether or not you are free to end the encounter. [Legal source: Hawaii Revised Statutes, Section 803, Arrests, Search Warrants; 803-4, On Suspicion; 803-5, Arrests by Police Without a Warrant] e. Can I get the officer's identifying information for a future complaint? ANSWER: Yes. At or before the time of making an arrest (not after making an arrest), the person making the arrest must declare that they are an office of justice. Hawaii Revised Statutes Section 803-6(a). If the person making an arrest is doing so with a warrant, they should show you the warrant. Hawaii Revised Statutes Section 803-6(a). If the person making the arrest is doing so without a warrant and on the grounds of "probable cause," they should clearly explain the probable cause to you. Hawaii Revised Statutes Section 803-6(a). Together, these provisions mean that, if you are being arrested, you have right to ask the person to identify themselves as an officer, show you there warrant (if they are relying on one), or clearly explain their probable cause to you. While it could depend on the circumstances, where an officer fails to communicate this information to you when it is requested, such a violation could serve as the basis as an unlawful arrest and help you in the context of a trial. [Legal Sources: Hawaii Revised Statutes, Section 803-6(a), Arrest] |
6. How do you know if you are under arrest?
ANSWER: There is a difference between being in police custody or being under arrest. As noted in other parts of this guidance, a police officer may be entitled to conduct an "investigative stop" and ask you questions about certain criminal activity. As a general rule, you know a police officer is conducting an investigative stop where a reasonable person in the circumstances would not feel free to terminate the encounter with the officer.
[Legal Sources: Article 1, Section 7, of the Hawaii State Constitution]
While police can stop and ask you questions during an investigative stop, 'arresting' someone is a step further and requires more from police officers. To put someone under arrest, a police officer generally needs to have "probable cause" or a warrant to do so. Probable cause means that the facts and circumstances, within the officer's knowledge and of which the officer has reasonably trustworthy information, are enough to suggest the person being arrested was reasonably involved in a crime that was or is being committed. In other words, for an arrest to take place, an officer must be relying on some reasonably trustworthy information that implicates you in a crime. If you are unsure whether you are under arrest or merely being stopped, ask the police officer.
[Legal source: Hawaii Revised Statutes, Section 803-5, Arrests by Police Without a Warrant]
If the following happens, you are likely under arrest:
- an officer handcuffs you;
- an officer forcibly holds you down;
- an officer puts you into the back seat of a police car; or
- an officer warns you about your rights.
An officer only has to warn you of your rights before the police question you. This means an officer can arrest you before warning you of your rights. An arrest where the officer hasn't told you about your rights is still a valid arrest; however, it may mean that evidence collected from your arrest will not be able to be used in court later.
[Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona]
a. What if I do not know if I am under arrest?
ANSWER: To properly carry out an arrest, at or before the time of making the arrest, the person must declare that they are an officer of justice. If the person has a warrant, the person should show it. If the person makes the arrest without a warrant, the person should clearly communicate with the arrested person the cause for which the officer is making the arrest, and shall require the party arrested to submit and be taken to the police station or judge. Therefore, if you do not know whether you are under arrest, ask the officer if you are under arrest. Under the law, they should tell you and clearly communicate the reason why you're under arrest.
[Legal source: Hawaii Revised Statutes, Section 803-6, Arrests, how made]
b. What is the difference between detention and arrest?
ANSWER: While police can stop and ask you questions during an investigative stop, also called a detention, 'arresting' someone is a step further and requires more from police officers. To conduct an investigative stop or detention, a police officer needs to able articulate specific facts that point that a crime took or is taking place. However, to put someone under arrest, a police officer generally needs to have "probable cause" or a warrant to do so. Probable cause requires more than being able to articulate facts; it means that the facts and circumstances, within the officer's knowledge and of which the officer has reasonably trustworthy information, are enough to suggest the person being arrested was reasonably involved in a crime. In other words, for an arrest to take place, an officer must be relying on some reasonably trustworthy information that implicates you in a present or past crime. If you are unsure if you are under arrest or merely being stopped, ask the officer.
[Legal source: Hawaii Revised Statutes, Section 803-5, Arrests by Police Without a Warrant]
c. If I am handcuffed, am I arrested?
ANSWER: Yes, it is likely you are arrested. However, you should ask the officer to confirm whether you are arrested and, if so, to clearly communicate their probable cause (Hawaii Revised Statutes, Section 803-5, Arrests by Police Without a Warrant). In Hawaii, a police officer is entitled to use force against you, including to put you into handcuffs, when it is justifiable under the circumstances to assist them in making the arrest.
[Legal source: Hawaii Revised Statutes, Section 703-307, Use of force in law enforcement]
d. If my liberty is restricted, am I under arrest?
ANSWER: Not necessarily. While police can stop and ask you questions during an investigative stop, also called a detention, you are not under arrest in those circumstances. However, you liberty is restricted because you are not free to simply walk away from a police officer when they are conducting an investigative stop. As noted in earlier sections, 'arresting' someone is a step further and requires more from police officers.
To conduct an 'investigative stop' or detention, a police officer needs to able articulate specific facts that point that a crime took or is taking place. However, to put someone under arrest, a police officer generally needs to have "probable cause" or a warrant to do so. Probable cause requires more than being able to articulate facts; it means that the facts and circumstances, within the officer's knowledge and of which the officer has reasonably trustworthy information, are enough to suggest the person being arrested was reasonably involved in a crime. In other words, for an arrest to take place, an officer must be relying on some reasonably trustworthy information that implicates you in a present or past crime. If you are unsure whether you are under arrest or merely being stopped, ask the police officer.
[Legal source: Hawaii Revised Statutes, Section 803-5, Arrests by Police Without a Warrant]
7. What to do after being warned of your rights
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ANSWER: Once you are in custody of police (for example, following an arrest), police officers have a legal duty to inform you of your right to remain silent and other rights you have under the Fifth Amendment of the United States Constitution (such as your right to an attorney). Once you're informed of your right to remain silent, you do not have to answer questions posed to you by police officers. Moreover, if you've invoked your right to an attorney, police officers generally cannot ask you questions of an investigative nature without your lawyer present. While you have these rights, you are also able to waive your rights (that is, not use them) to remain silent or to speak to an attorney. You could say something like: "Yes, I understand my rights but I am ready to talk to you." Generally, it is not a good idea to waive your rights to remain silent or talk to a lawyer. This is because anything you say to police officers can later be treated as evidence against you, which could help police prove that you committed a crime. If police prove you committed a crime, you could receive jail time. [Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona] a. How do things change if I am read my rights by police? ANSWER: When you are placed under police custody (for example, following an arrest), police officers have a legal duty to inform you of your right to remain silent and other rights you have under the Fifth Amendment of the United States Constitution (such as your right to an attorney). United States courts treated these rights seriously and violations of these rights by police officers could hurt their court case against. As such, when you are read your rights, including your right to remain silent and your right to an attorney, you are free to exercise these rights (e.g. by declining to speak to police or answer their questions, or by simply remain silent). Police generally cannot push you to talk or answer questions once you've evoked your rights to remain silent or to an attorney (without having an attorney present during the questioning). [Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona] b. Does it matter where I am when the police read me my rights? (street, station, police car, etc.) ANSWER: No. It doesn't necessarily matter where you are read your rights by police; rather, it's more important when you're read your rights. Generally, under your Fifth Amendment rights, a police officer must inform you of your rights before they ask you any questions that could reasonably evoke incriminating responses from you. For example, if you're arrested an placed in the back of a police vehicle, police officers would have to read you your rights if they casually asked you what you were doing on the day of the alleged crime, who you were hanging out with, or about your involvement with the crime or other offenders. Even if these questions are being asked casually in the back of a police vehicle, they are of a kind that could reasonably get you to answer in ways that could be incriminating to your case. As such, before police ask you any questions of an investigative nature after you are in their custody (such as when they tell you that you're under arrest or place you in a police vehicle), they must legally read you your rights, called "Miranda Rights." [Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona] |
8. Police questioning you
| a. Am I required to make a statement?
ANSWER: No. The Fifth Amendment of the U.S. Constitution gives you the right to remain silent and consult an attorney when you are in police custody. When asked to comment about a crime or alleged crime to police (i.e. to make a statement), you can certainly volunteer to do so; however, you equally have the right to say nothing. Whenever you are in police custody and being investigated for an alleged crime, it is always a good idea to first consult with an attorney before speaking to police and volunteering any comments or statements. [Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona] b. Must police notify my guardian? ANSWER: Yes, if you are under 18. If an alleged offence or crime was committed before you turned 18 years old, you will likely be considered a juvenile for arresting purposes. Upon an arrest, the arresting officer must notify a parent or guardian of the arrestee. [Legal sources: Honolulu Police Department, Policy on Handling Juveniles, Arrest Process, 2(C)] c. Must I confess? ANSWER: No. The Fifth Amendment of the U.S. Constitution gives you the right to remain silent and consult an attorney when you are in police custody. When asked to comment or confess about a crime or alleged crime to police, you can certainly volunteer to do so; however, you equally have the right to say nothing. Whenever you are in police custody and being investigated for an alleged crime, it is always a good idea to first consult with an attorney before speaking to police and volunteering any comments or statements. [Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona] d. What adults can I ask to be with me? ANSWER: If an alleged offence or crime was committed before you turned 18 years old, you will likely be considered a juvenile for arresting purposes. Upon an arrest, the arresting officer must notify a parent or guardian of the arrestee. You also have the right to have an attorney present following your arrest. If you are under 18 years old, consider waiting for your parents, a guardian, or an attorney before speaking to police. [Legal sources: Honolulu Police Department, Policy on Handling Juveniles, Arrest Process, 2(C)] e. Who do police have to contact if I am a legal minor? ANSWER: If an alleged offence or crime was committed before you turned 18 years old, you will likely be considered a juvenile for arresting purposes. Upon an arrest, the arresting officer must notify a parent or guardian of the arrestee. [Legal sources: Honolulu Police Department, Policy on Handling Juveniles, Arrest Process, 2(C)] |
9. How do I contact a lawyer and when?
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ANSWER: While you can contact a lawyer at any time (even if you are not being investigated for a crime), your right to have a lawyer present for police questions begins when you're taken into the custody of police (for example, if they tell you that you're under arrest, handcuff you, or put you in a police vehicle) and before being asked any questions of an investigative nature that could elicit incriminating responses from you. In other words, you have a right to have a lawyer present once you're in the custody of police and they are asking you questions about your involvement or knowledge about the alleged crime. You should always contact a lawyer before saying anything to the police if they arrest you or are investigating something where you are a witness. While you do have to wait until you go to court to get a lawyer appointed, if you cannot afford your own lawyer, you should still ask for a lawyer as soon as you are questioned or arrested by the police. If you are arrested, you have the right to remain silent and to not speak until your lawyer is present. [Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona] [Legal sources: Hawaii Revised Statutes, Section 710-1063, Unsworn Falsification to Authorities] a. What if I am just a witness? ANSWER: You are entitled to contact a lawyer at any time, even if you are not suspected of any crime or being investigated by police. Lawyers give their clients legal advice and such advice is not limited to defendants in criminal proceedings. If you are a witness and are worried about your own legal position, contact a lawyer. |
10. How do I contact an attorney and when?
a. Can the police lie to me?
ANSWER: Under the Fifth Amendment to the U.S. Constitution, you have a right against self-incrimination, which means that you don't have to talk to police or reveal any information that could potentially implicate you in a crime. Courts have determined that when police lie to you or use coercion (or threat of force or punishment) against you to get you to confess to a crime, it can, at times, be found unlawful because it violates your Fifth Amendment against self-incrimination. Nonetheless, this can be a grey area and is often left to a court of jury to interpret what amounted to deception or coercion by police officers. As such, you should always request to seek with a lawyer as soon as you are arrested or taken into custody (such as when police say you are under arrest or place you in their police vehicle) and be skeptical of what police tell you.
[Legal sources: State v. Baker, Supreme Court of Hawaii]
[Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona]
b. Do I have to tell the police the truth?
ANSWER: You don't have to tell police anything. Under the Fifth Amendment to the U.S. Constitution, you have a right against self-incrimination and you also have rights, when in police custody (e.g. when you are under arrest or place into a police vehicle) to remain silent and to have a lawyer present. As such, when being asked a question by police after being arrested, it may be better to remain silent than lie to police. In fact, under Hawaii law, it can be a crime to knowingly make false statements to police during an investigation.
[Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona]
[Legal sources: Hawaii Revised Statutes, Section 710-1063, Unsworn Falsification to Authorities]
11. How do I make a complaint if I have questions or feel my rights have been violated?
REMEDIES: To report police misconduct in Hawaii, consider calling or writing to the Honolulu Field Office of the Federal Bureau of Investigation at (808) 566-4300 or 91-1300 Enterprise Street, Kapolei, HI, 96707. Reporting police misconduct is another way of saying making an official complaint against police. You can also contact the Honolulu police department directly and speaking with the Professional Standards Office:
Attention: Professional Standards Office
801 South Beretania Street
Honolulu, Hawaii, 96813
Telephone: 808-723-3775
12. What if I feel I was a victim of discrimination or racism?
REMEDIES: Discrimination and racism can constitute police misconduct. Consider calling or writing to the Honolulu Field Office of the Federal Bureau of Investigation at (808) 566-4300 or 91-1300 Enterprise Street, Kapolei, HI, 96707. You can also contact the Professional Standards Office of the Honolulu police department:
Attention: Professional Standards Office
801 South Beretania Street
Honolulu, Hawaii, 96813
Telephone: 808-723-3775
13. How can I respond to circumstances involving discrimination?
REMEDIES: While it depends on the circumstances, you can either contact a lawyer or legal clinic in your area, or contact the Professional Standards Office of the Honolulu police department at the address above.
14. What can you do if the police perform an improper search? Or I was improperly detained?
REMEDIES: You have constitutional rights, under the Fourth Amendment of the United States Constitution, against unlawful searches of you, as a person, and certain areas that may be protected (like the inside of your home). There are specific rules that govern searches of people and property, and violations of these rules by police could mean that the searches were unlawful and evidence gained from the searches will not be allowed to be used by police in court against you. As such, it is extremely important for you to understand your rights against unlawful searches and, given the complexity of this area of law, consider speaking with a lawyer, or, if you're already arrested or in the custody of police (for example, if they place you in handcuffs or in a police vehicle), make sure to tell police that you want to speak to a lawyer. It is your constitutional right to do so.
[Legal sources: Fourth Amendment to the United States Constitution, Unreasonable Searches and Seizures]
[Legal sources: Fifth Amendment to the United States Constitution; Miranda v. Arizona]Telephone: 808-723-3775