- Richard L. Duquette
What is a Lawful Order?
As users of the road, bicyclists are not immune to police encounters. This article outlines the best practices for handling these situations. In my law practice, I have dealt with bicyclists and other defendants who have been charged with resisting arrest, obstructing a police officer, or other violations of Penal Code § 148. This provision states that anyone who "willfully resists, delays, or obstructs any…peace officer…in the discharge or attempt to discharge any duty" is guilty of a misdemeanor.
There are a variety of ways to run afoul of this statute, some more serious than others. However, as a general principle, let's be clear that it's almost always a good idea to listen to a police officer and do what you are told—even if the officer is in the wrong. At that point, you're better off arguing your case in court, not on the scene. In court, you have a chance to make your point and be heard. In a confrontation between you and a police officer on the street, you're almost always going to lose.
So when an officer tells you to stop, tells you to show him your ID, or tells you to ride in one part of the road as opposed to another, it's always in your interest to do what he says! If he is in the wrong, and if you get a citation, you may have to deal with that. But if he's not wrong, and you ignore him, the encounter could turn from a minor inconvenience to a night or a weekend in jail very quickly.
Consensual Encounters vs. Detentions
One critical distinction when it comes to resisting police officers is knowing whether you are in a consensual encounter or a detention situation. You are free to walk away from a consensual encounter, but not from a detention. The practical significance of this is that if you give up incriminating information or you give consent to a search during a consensual encounter, you lose your right to challenge the search or confession under United States v. Mendenhall, 446 U.S. 544 (1980) and Florida v. Bostick, 501 US 429 (1991).
When an officer asks you to talk, you don't have to talk to them. However, if an officer commands you to stop, this is no longer a consensual encounter, and you are required to stop. One way to tell the difference between a consensual encounter and a detention is to politely ask the officer if you are being detained or if you are free to go. This does not mean that you have to answer his questions or consent to a search. If you are being detained, you are still permitted to exercise your 5th Amendment right to remain silent. You are also free to deny permission to search your person under the 4th Amendment. However, this does not mean you can physically obstruct a search. If a police officer wants to search you, they are going to search you with or without your consent. You may verbally object and state that you do not consent, but the issue of whether it was a legal search is best handled in court. You should never verbally grant consent, though, as this will bar any claim that the search was unlawful in court.
If you are being detained, an officer will often ask for identification. Give it to them. If you do not have your driver's license with you, give them your correct name. Providing a false identification to a peace officer is a misdemeanor under Penal Code § 148.9. The police can often determine on the scene whether you have done so. In a typical detention situation, your identification will be run through the computer to check for outstanding warrants.
Requests vs. Commands
An equally important and related distinction in dealing with the police is the difference between a request and an order. Oftentimes, police will sound as if they are issuing a command (due to the tone of their voice), but they will phrase it in terms of a question. They are trained to do this, because it often helps them get cooperation from people who are not legally required to cooperate. For instance, if an officer tells you to get off your bike or to take your helmet or sunglasses off, these could be requests, or they could be commands, depending on the situation and the reason for the stop. If you are unsure whether you are being commanded to do something or simply requested, it's OK to politely ask whether that is an order or a request. The officer will tell you.
In general, the request vs. command distinction has a lot of overlap with the detention vs. consensual encounter distinction. If you're being commanded to do something, you are not free to ignore it, and thus you are not free to leave. The key lesson here is to cooperate when you are actually ordered to do something, but not to waive your Fourth and Fifth Amendment rights by giving voluntary consent to an invasion of your privacy. Because it can sometimes be difficult to know the difference, pay attention to the specific language the officer is using and not just his tone of voice or demeanor. Also, remember, you're allowed to ask whether you're being detained or whether you're free to go.
Why It's Always Best to Cooperate
Whether the police officer is ultimately right or wrong, it's always in your best interest to cooperate, and keep your cool. For one thing, if you don't follow a lawful order, you can be arrested on that basis alone, even if you were in the right to begin with. If you think you have a right to ride in one portion of the road and the officer disagrees, you may be right on the merits, but you can still be arrested for refusing to comply. Potential consequences include possible jail, having your bike impounded, and having to incur attorney's fees to clear your name and recover your property. And that's assuming you don't get convicted.
Almost as important is that relations between the bicycling community and the police are critical to the protection of bicyclists. When a bicyclist is injured by a negligent motorist, they depend on the responsiveness and assistance of the police to document the accident and to investigate objectively. Many motorists already don't think very highly of bicyclists, which sometimes hurts them in jury trials. If bicyclists alienate the police, they risk damaging relations with some of their most important witnesses in personal injury cases.
Good relations with the police and the community are also important because this increases the chance of an injured cyclist being assisted by Good Samaritans.