Know Your Constitutional Rights in Oklahoma

Four Things to Remember During a Police Encounter

A person dealing with police can protect important rights without arguing or being confrontational.

The United States and Oklahoma Constitutions Both Protect You

Your rights in an Oklahoma criminal case do not come from only one source.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. Oklahoma has a similar protection in Article II, § 30 of the Oklahoma Constitution.

The Fifth Amendment protects against compelled self-incrimination and double jeopardy. Article II, § 21 of the Oklahoma Constitution contains related protections.

The Sixth Amendment protects important rights after a criminal prosecution begins, including the right to counsel, the right to a speedy and public trial, the right to confront witnesses, and other trial rights. Article II, § 20 of the Oklahoma Constitution also protects the rights of an accused person in a criminal prosecution.

Those rights become important at different stages. The rights that matter when an officer first approaches you on the street are not identical to the rights that apply once you have been formally charged and are standing in a courtroom.

Is the Police Encounter Voluntary, a Detention, or an Arrest?

The legal rules change depending on what kind of encounter is taking place.

Your Right to Remain Silent

A common mistake is believing that explaining the situation will make the investigation go away. A person who knows he did nothing wrong may feel an especially strong urge to answer questions. He may believe the officer needs only one missing detail before everything makes sense. The problem is that you usually do not know everything the officer knows, what another witness has said, what evidence police already have, or how your words will later be interpreted.

You should decline to answer substantive investigative questions and ask to speak with a lawyer. Do not rely on simply sitting quietly and assuming everyone understands that you are invoking your rights. During custodial interrogation, the law places importance on a clear invocation. Use plain words:

“I am exercising my right to remain silent. I want to speak with a lawyer.”

Once you invoke those rights, do not keep talking about the case. A clear invocation followed by another twenty minutes of explanation defeats the practical purpose of remaining silent. This protection is discussed in greater depth in The Fifth Amendment and Stop Talking to the Police.

You Can Refuse Consent to a Search

Consent is one way police can obtain lawful authority to search. That means the officer does not necessarily need to announce, “I am asking you to waive your Fourth Amendment rights.” The request may sound much more casual:

You do not need to debate the officer or explain why you are refusing. Say:

“I do not consent to any searches.”

If police have a warrant or another recognized legal basis to search, they may proceed despite your refusal. Do not physically obstruct them. Your refusal makes clear that the search was not based on your permission.

Traffic Stops and Dog Sniffs

Drug detection dogs create a specific issue during traffic stops. Police do not need a driver's consent merely to have a dog sniff the exterior of a vehicle during an otherwise lawful traffic stop. Refusing consent to a dog sniff is not what determines whether the sniff is constitutional.

Time is often the critical issue.

Police cannot extend a completed traffic stop simply to wait for or conduct a dog sniff unless they have the additional legal justification required to prolong the detention. That makes the sequence of events important: when the vehicle was stopped, what traffic-related tasks were being performed, when those tasks reasonably should have been completed, when the dog arrived, and what information the officer had before extending the stop. You can still clearly refuse permission to search the vehicle:

“I do not consent to a search of my vehicle.”

If officers search anyway, do not physically resist. The legality of the detention and search can be examined afterward. More detailed search issues belong in Search and Seizure and The Fourth Amendment.

Police at Your Home

The home sits at the center of Fourth Amendment protection. You do not have to invite officers into your home simply because they ask to come inside and talk or “take a quick look.” If they ask for permission, you can say:

“I do not consent to anyone entering or searching my home.”

A warrant is not the only circumstance in which police can lawfully enter a home. Consent, emergency conditions, hot pursuit, and other recognized exceptions can permit warrantless entry in particular circumstances. That is another reason not to try to resolve the legal issue at the doorway.

If officers claim authority to enter despite your refusal, do not physically block them. Make your lack of consent clear and allow a lawyer to examine the claimed legal basis later.

Your Phone and Other Digital Devices

A phone can contain years of private communications, photographs, location information, internet activity, financial information, and other personal data. The fact that police lawfully arrest you and physically possess your phone does not ordinarily give them authority to search its digital contents as part of a routine search incident to arrest. Searching that data ordinarily requires a warrant or some other recognized legal basis. If police ask for permission to look through your phone:

“I do not consent to a search of my phone. I want to speak with a lawyer.”

Do not voluntarily unlock the device, provide a passcode, or give permission to search it without first obtaining legal advice.

Questions involving compelled access to electronic devices can raise additional constitutional issues. Those issues are better evaluated from the exact facts than reduced to a universal rule on a general rights page.

Your Right to an Attorney

Two different constitutional concepts are easy to mix together. During custodial police interrogation, Miranda protects the right to remain silent and the right to ask for an attorney before continuing with questioning. If you are in custody and police want to question you about suspected criminal conduct, say:

“I want a lawyer. I am not answering questions.” Then stop answering questions.

The Sixth Amendment right to counsel is a related but different protection. It attaches after the government has begun the criminal prosecution through a formal charge or comparable judicial proceeding and applies at critical stages of that prosecution.

The practical advice is simpler than the constitutional doctrine: if police are investigating you or questioning you about suspected criminal activity, you should decline to answer questions and ask to speak with an attorney. If you have already been charged, obtaining legal representation becomes even more important because decisions made during the case can affect your liberty, evidence, negotiations, motions, and trial.

Other Rights Once a Criminal Case Begins

The Constitution protects much more than searches and police questioning. Depending on the case and the stage of the prosecution, those protections include the right to know the accusation, the right to counsel, the right to a speedy and public trial, the right to confront prosecution witnesses, the ability to compel witnesses for the defense, and the right to a jury trial when the Constitution provides one.

Double jeopardy also limits repeated prosecution for the same offense. That protection has important exceptions and boundaries. In particular, state and federal governments can sometimes prosecute offenses arising from the same conduct because they are separate sovereigns.

The individual constitutional issues can become complicated quickly. This page is intended to give you the rules most useful during an actual police encounter, not turn every constitutional doctrine into a law-school outline.

What Happens If Police Violated Your Rights?

A constitutional violation does not automatically make a criminal case disappear. The effect depends on what happened, what evidence was obtained, what right was violated, and whether the law provides a remedy for that particular violation.

An unconstitutional search or seizure can support a motion to suppress evidence. The exclusionary rule is not automatic in every situation, and courts recognize exceptions to it. The exact chronology can be critical. A defense review may need to determine:

• what the officer knew before the stop;
• when the detention began;
• how long it lasted;
• when questioning occurred;
• whether consent was requested or claimed;
• whether consent was actually voluntary;
• what a warrant authorized;
• whether police went beyond the warrant;
• when a dog sniff occurred during a traffic stop; and
• what evidence resulted from the challenged police conduct.

Body camera video, patrol car video, dispatch records, warrant materials, photographs, messages, and other evidence can sometimes show that an encounter unfolded differently from the description in a police report.

A Simple Way to Protect Your Rights

If you remember nothing else during a police encounter, remember these four statements:

Say what needs to be said clearly. Do not argue about the law on the roadside, in a parking lot, at your front door, or in an interrogation room. If officers proceed despite your objection, do not physically interfere. The legal challenge comes later.