The following information is provided by the Kentucky Association of Criminal Defense Lawyers (www.KACDL.net).
All people should be trained to assert their constitutional rights in order to avoid the hassle and humiliation of police misconduct and illegal searches.
According to the Bureau of Justice Statistics report on citizen-police contacts, about 21 percent of the population age 16 years or older - or about 44 million people - had contact with the police during 1999. More than half of these face-to-face interactions occurred because of traffic stops.
Of the 19.3 million traffic stops documented in the study, about 1.3 million motorists said they or their vehicle had been searched. In almost 90 percent of these searches, police found no evidence of a crime whatsoever! There is reason to believe that many, if not most, of these searches could have been avoided if the motorist had properly asserted his or her rights by refusing to consent to a warrantless search.
Still, while all Americans should be prepared to exercise their constitutional rights during police encounters, certain groups must be particularly aware of these rights due to systemic biases in law enforcement. Data from the Bureau of Justice Statistics show that minorities and young people are disproportionately likely to be searched by police.
The debate that has emerged in recent years over racial-profiling by law enforcement officers highlights the significance of constitutional provisions intended to prohibit discriminatory police practices. Flex Your Rights believes that educating citizens about their constitutional rights can play a significant role in reducing the harms associated with racial profiling.
Police officers are legally allowed to search your home or your property if they obtain a search warrant. To obtain a warrant, police officers must write out an affidavit - a written statement under oath - to convince a judge that they have probable cause to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there.
As a general rule, searches conducted without a warrant are automatically unreasonable and hence violate the Fourth Amendment. But in fact most searches occur without warrants because police take advantage of these many legal exceptions to the Fourth Amendment:
Definition of Probable Cause
Many factors contribute to a police officer's level of authority in a given situation. Understanding the what, when, why, and how of police conduct during a stop is confusing for most people. Varying standards of proof exist to justify varying levels of police authority during citizen contacts. While FyR maintains that it is never a good idea to consent to a search or answer incriminating questions, an understanding of these standards will help the citizen understand when police can surpass constitutional protections.
Reasonable suspicion Facts or circumstances which would lead a reasonable person to suspect that a crime has been, is being, or will be committed.
At this stage, police may detain the suspect for a brief period and perform a frisk. In some cases, drug-sniffing dogs may be called to the scene, although officers must cite a reason for suspecting the presence of drug evidence in particular. Refusing a search does not create reasonable suspicion, although acting nervous and answering questions inconsistently can. For this reason, it is best not to answer questions if you have to lie in order to do so. Police authority increases if they catch you in a lie, but not if you refuse to answer questions. As a general rule, reasonable suspicion applies to situation in which police have reason to believe you're up to something, but they don't know what it is.
Probable cause Facts or evidence that would lead a reasonable person to believe that a crime has been, is being, or will be committed and the person arrested is responsible
At this stage, police may perform a search, and often an arrest. Probable cause generally means police know what crime they suspect you of and have discovered evidence to support that belief. Common examples include seeing or smelling evidence which is in plain view, or receiving an admission of guilt for a specific crime.
For the conscientious citizen, the best advice regarding police authority is to stick to your guns and not waive your constitutional rights under any circumstances. Police officers will often give misleading descriptions of what their authority is, but you have nothing to gain by submitting to coercive police tactics. Police must make ad hoc decisions in the streets regarding their authority level in a given situation and these decisions are subject to review in court. Asserting your rights properly is good way to avoid arrest, but it is an even better way to avoid a conviction.
Simply put, the number of arrests an officer makes is a major factor used to determine his job performance. And police officers know that the easiest way to make arrests is to find people in possession of illegal drugs.
To make one drug arrest, an officer generally has to search ten people. This means that nine innocent people will likely endure the inconvenience and humiliation of a police search so that one law-breaker can be arrested. In some officers' minds, the nine searches that turned up nothing are easily justified-especially if those people willingly consented to his warrantless search requests.
No. If a police officer asks your permission to search, you are under no obligation to consent. The main reason why officers ask is because they don't have enough evidence to search without your consent. If you consent to a search request you give up one of the most important constitutional rights you have - your Fourth Amendment protection against unreasonable searches and seizures.
A majority of avoidable police searches occur because citizens naively waive their Fourth Amendment rights by consenting to warrantless searches. As a general rule, if a person consents to a warrantless search, the search automatically becomes legal. Consequently, whatever an officer finds during such a search can be used to convict the person.
Don't expect a police officer to tell you about your right not to consent. Police officers are not required by law to inform you of your rights before asking you to consent to a search. In addition, police are prepared to use their authority to get people to consent to searches, and most people are predisposed to comply with any request an officer makes. For example, the average motorist stopped by an officer who asks them, "Would you mind if I search your vehicle, please?" will probably consent to the officer's search without realizing that they have every right to deny the officer's request.
If for any reason you don't want the officer digging through your belongings, you should refuse to consent by saying something like, "Yes, I do mind. I have private, personal items in my [car, backpack, etc.] and do not want you looking through them." If the officer still proceeds to search you and find illegal contraband, your attorney can argue that the contraband was discovered through an illegal search and hence should be thrown out of court.
You should never hesitate to assert your constitutional rights. Just say "no!"
The sad fact is that most people believe that they are under some kind of obligation to acquiesce when an officer contacts them and asks permission to search them or their belongings.
The truth is the exact opposite - you have a right to associate with, and speak to, whomever you please. In this respect, there is nothing special about a police officer. Assuming you would not let a complete stranger look through your purse or search your pockets, why would you allow a police officer to do so - especially if you're doing nothing illegal? Just say "NO" to police searches!
This is a tricky issue. As a general principle, citizens who are minding their own business are not obligated to "show their papers" to police. In fact, there is no law requiring citizens to carry identification of any kind.
Nonetheless, carrying an ID is required when you're driving or flying. Driving without a license is a crime, and no one is allowed to board an airplane without first presenting an ID. These requirements have been upheld on the premise that individuals who prefer not to carry ID can choose not to drive or fly.
From here, ID laws only get more complicated. In Hiibel vs. Sixth Judicial District Court of Nevada, the Supreme Court upheld state laws requiring citizens to disclose their identity to police when officers have reasonable suspicion to believe criminal activity may be taking place. Commonly known as 'stop and identify' statutes, these laws permit police to arrest criminal suspects who refuse to identify themselves.
Currently the following states have stop and identify laws: AL, AR, CO, DE, FL, GA, IL, KS, LA, MO, MT, NE, NH, NM, NV, NY, ND, RI, UT, VT, WI
Regardless of your state's law, keep in mind that police can never compel you to identify yourself without reasonable suspicion to believe you're involved in criminal activity. Rather than asking the officer if he/she has reasonable suspicion, test it yourself by asking if you're free to go.
If the officer says you're free to go, leave immediately and refrain from answering any additional questions.
If the officer detains you, you'll have to decide whether withholding your identity is worth the possibility of arrest or a prolonged detention. In cases of mistaken identity, revealing who you are might help to resolve the situation quickly. On the other hand, if you're on parole in California, for example, revealing your identity could lead to a legal search. Knowing your state's laws can help you make the best choice.
Keep in mind that the officer's decision to detain you will not always hold up in court. 'Reasonable suspicion' is a vague evidentiary standard, which lends itself to mistakes on the officer's part. If you're searched or arrested following an officer's ID request, always contact an attorney to discuss the incident and explore your legal options.
Your rights do not disappear if the officer threatens to call in the dogs, so don't let this all-too-common tactic intimidate you into consenting to a search.
Before the dogs arrive, you have the right to dismiss yourself by asking if you are free to go. But if the officer detains you until the dogs come, remain silent and refuse to consent to any searches.
If a K-9 unit arrives, you should never consent to a dog sniff even if the officer claims you have to (which would be a lie). Remember: Unlocking your car at the officer's request or handing the officer your keys is the same as consenting to a search.
Unfortunately, many people get fooled by some version of this commonly used police officer's line: Everything will be easier if you cooperate. That might be true sometimes, but when it comes to consenting to searches and answering incriminating questions, it couldn't be further from the truth.
No. The courts have made clear that police officers do not have to tell people that they can refuse to consent to a warrantless search. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid.
Many people believe that an officer must automatically read a person his or her Miranda rights as part of performing an arrest, either immediately before or immediately after an arrest is made. This is also myth.
The truth is that the only time an officer must read a person his or her Miranda rights is when: (1) the person has been taken into custody, and (2) the officer is about to question the person about a crime.
Police officers are often pretty tricky about trying to get someone's consent to a search. They know that most people feel intimidated by police officers and are predisposed to comply with any request by a police officer. For example, the average motorist stopped by a police officer who asks them, "Would you mind opening the trunk, please?" will probably consent to the officer's search without realizing that they have every right to deny the officer's request.
No. Most police officers are good, hardworking people who are doing a tough job. We need police to safeguard the life, liberty, and property of all people.
To do this best, police officers should be trained to serve as peace officers whose goal is to preserve people's constitutional rights. In other words, the number of arrests an officer makes should not be a factor used to determine his job performance. Instead, performance should be measured by the officer's ability to maintain a safe, peaceful neighborhood and earn the residents' trust.
No. We teach people that they have rights, and these rights are secured by the principal documents protecting our civil liberties-the Constitution and the Bill of Rights. Our nation's founders, who were keenly aware of the dangers posed by unchecked government power, created these documents to protect individuals from overzealous law enforcement officials.
For example, an informed individual who invokes his constitutional protections whenever a police officer asks to conduct a warrantless search is doing exactly what the founders intended. The catch is that these rights only apply if they are effectively asserted. Otherwise, people may knowingly or unknowingly waive these rights.
Be aware that private security personnel outnumber police officers in the United States by three to one. As a result, you may be more likely to be confronted by a security guard than by a police officer. You must also be aware of the following places where security personnel (governmental or otherwise) are permitted to search you without a warrant:
Border Searches The Supreme Court has held that an officer does not need a warrant, probable cause, or even reasonable suspicion to search you, your car, or your belongings, at a border. Therefore, any time you cross a U.S. border, you in effect consent to a search.
Airport Searches Be aware that airport security personnel do not need a warrant, probable cause, or even reasonable suspicion to search you or your belongings before boarding any commercial airline. Again, any time you board a commercial airline, you in effect consent to a search.
Private Security Checks Private security personnel have a right to search you as a condition of entry into private property, for example. It is up to the individual to decide if a search is worth the price of admission. As long as you are free to walk away, the security personnel do not pose a threat to your constitutional liberties.
Keep in mind that a security guard can turn illegal drugs over to a police officer. In such a case, the drugs are then admissible in evidence, because the search was conducted by a private security guard. And at the present time the Fourth Amendment does not apply to searches carried out by non-governmental employees like private security guards.
If you feel that your rights have been violated by police, do not panic. There are several steps to the process of combating police misconduct, and you must approach them in a calm and organized manner.
Step 1: Write everything down
This step is extremely important and must be completed as soon as possible following the incident. It's easy to forget small details over time, and there's no way to know which facts will make a difference later on.
In your own words describe everything that took place from the very beginning of the police encounter to the end. When quoting yourself or the officer try to use exact words. Be specific about the location, time of day, etc. Also include witness's names and contact information and the officers' names, physical descriptions, and badge numbers. If necessary, be prepared to return to the scene of the incident in search of possible witnesses. Doing so may also help jog your memory about other important details.
Step 2: Consult with an attorney
This step is essential if you were arrested following the incident. It is optional, but recommended, if you were not arrested.
Victims of police misconduct are often vigorously prosecuted in order to gain leverage in case the victim files a lawsuit. If you're caught in a situation like this, you need a good police misconduct attorney immediately. Police misconduct cases are challenging, and lawyers meet a lot of difficult people, so separate yourself from the pack by being calm and well-organized. The materials you prepared in Step 1 will help demonstrate that you are a competent defendant whose case is worth taking.
If you were not charged with a crime following the incident, you may still wish to pursue a civil suit against the police department. An attorney will help you determine whether you have a strong enough case. Proving police misconduct is extremely difficult, so your attorney will choose whether to proceed based on the strength of the evidence, rather than the severity of the misconduct. Do not become upset if you can't find an attorney to take your case, simply proceed to Step 3.
Step 3: File a Police Misconduct Report
This step cannot begin until all criminal charges and civil actions have been resolved. Filing a police misconduct report prematurely will hurt your chances in court by revealing too much information to the police. Of course, if you weren't charged with a crime and you're not suing, the complaint should be filed right away.
The materials you prepared in Step 1 will form the body of your complaint. You'll be glad you wrote it down back then, because you might be filing your complaint weeks or months after the incident.
Where to file your complaint depends on your jurisdiction, but there's usually a citizen review board or an office within the police department that accepts them. Entering "police complaint" + "(name of your town or city)" into Google will usually direct you to the correct office. If your town has a civilian review board and an office within the police department that both accept complaints, you should send your report to both offices.
Also take note of whether there's an official form that you're required to use. If so, you may have to transfer the information you wrote down in Step 1 onto the correct form. Failing to do so could result in your complaint being rejected arbitrarily. In some areas you might have to call or visit a police office in order to obtain the proper form. When doing so, refrain from discussing the nature of your complaint with any police officer. Police might try to intimidate you by claiming that your particular complaint has no merit. Worse, they may warn the officers involved, which could lead to a cover-up.
Finally, before sending your complaint, be sure to make copies and place them in a secure location. Send your complaint by certified mail so the police cannot deny having received it.
Finally, keep in mind that filing a complaint does not ensure a prompt response from the police department or civilian monitoring agency. Police departments receive many complaints, so your concerns won't necessarily receive the individual attention they may deserve. Remember that your complaint creates documentation of an incident and could be used in conjunction with other complaints to illustrate a pattern of misconduct. This information is useful to community activists who work to prevent systemic police abuse in your community. Similarly, your complaint could become relevant in the future if the same officer is accused of additional misconduct. In short, your complaint is important even if you don't get a response.
Yes. Minors generally have the same rights as adults. For example, minors can refuse searches and decline to answer questions without an attorney present.
Nonetheless, minors face unique challenges when attempting to exercise these rights. Young people are highly susceptible to coercion by authority figures, and are easily convinced to waive their rights. Police will often take advantage of this by telling young people: "You're underage. You don't have any rights." This, of course, is a lie.
Just like adults, minors must understand and confidently assert their constitutional rights in order for these rights to protect them.
The rights of minors are also undermined by the fact that young people tend not to own property. Young people often use shared spaces, both at home and at school, which are controlled by adults. Since property owners may grant access to police and even authorize searches in many cases, young people have a reduced ability to protect their 4th Amendment rights when sharing space with others. The best protection is to clearly mark your own property so that it's clear that it's yours. Even your parents can't consent to a search of something that's clearly yours alone.
Videotaping or photographing police in public places is usually legal, so long as you don't interfere with their activities. Nonetheless, doing so will often get you arrested.
Police don't like to be watched or documented in any way, so they'll sometimes bend the rules to stop you. We've heard many stories about people who got arrested for taping police, and the charges are usually dropped. If you're taping or photographing police, make sure you don't interfere, because "obstruction" is the most likely charge, and you'll want to be able to defend against it.
It doesn't! There are many reasons to be concerned about the PATRIOT Act, but it doesn't reduce your rights during a routine police encounter. Anti-terrorism legislation gives federal agents broad powers to investigate potential terrorist activities, but it doesn't apply to the local cops in our neighborhoods or the state police patrolling our highways. If you're accused of terrorism, you've got big problems, but chances are you won't be sent to Guantanamo Bay for refusing a consent search.
In addition to compromising your safety and the safety of others, drunk driving is one of the easiest ways to create overwhelming legal problems for yourself.
DUI laws vary from state to state, but they have become increasingly harsh over the years. Refusal of breathalyzer and sobriety tests generally carries a punishment equivalent to being found guilty of DUI. While drunk driving enthusiasts often taut "silver bullet" strategies for beating DUIs, there's really nothing you can do except find a good lawyer and hope you get your driver's license back someday.
During a legitimate traffic stop, police may order the driver and any passengers out of the vehicle. This rule is intended to protect officers' safety, but it's often used for investigatory purposes. Police who order you out of the vehicle probably suspect you of criminal activity, so be prepared for a pat-down and maybe a search request.
Traffic stops typically occur as a result of suspected moving violations committed by the driver of the vehicle. Passengers cannot be held responsible for the driver's conduct, and are generally free to leave, unless police become suspicious of them during the course of the stop.
Unfortunately, this happens frequently and the amount of evidence required to detain passengers is minimal. For this reason, passengers must remember to refuse search requests and refrain from answering questions without an attorney present. Police who suspect criminal activity will often separate the occupants of an automobile and question them separately. If their stories differ, this could lead officers to claim that they have probable cause to prolong the detention or conduct a search.
As with any other brief detention, the best way to handle this situation is to ask if you're free to go.
Yes. Police are generally permitted to lie if it helps them make arrests. The best example of this is when undercover officers claim not to be police. The rules regarding entrapment usually tip in favor of law-enforcement, so police won't hesitate to trick you into incriminating yourself or others. This is particularly common during interrogations in which officers might tell you that "your friend already gave you up, so you might as well come clean."
The best defense against these manipulative tactics is to avoid saying anything to police without first speaking with an attorney.
This depends on the circumstances. The Supreme Court has ruled that any occupant of a residence can refuse consent, even if other roommates agree to a search. Unfortunately, you must be present in order to assert your refusal. For this reason, it's important to make sure that your roommates understand their 4th Amendment rights in case something happens when you're not around. You may want to talk to your roommates about how to handle police visits and reach an agreement about how to handle such situations just in case.
As a general rule, police can obtain consent to search from anyone with control over the property. Someone who has a key, or whose name appears on the lease, can legally consent to a search of the property if no one else is present, or if no one else objects. If you rent the property, be advised that your landlord can also let the police in.
Finally, keep in mind that the courts often determine your "expectation of privacy" on a case-by-case basis. Keeping your room locked and maintaining control of your personal space can help protect you if a roommate ever lets police in. If your room is off-limits to your roommates and their friends, courts will often rule that it is off-limits to police as well.
Unfortunately, police sometimes search you even if you refuse consent. If they find anything illegal, you'll have to get a lawyer and fight it out in court.
If the officer convinces the judge that there was probable cause to search without your consent, then the evidence will be admissible in court. If your lawyer convinces the judge that there was no probable cause, then the evidence will be thrown out and your charges will be dropped. Every case is different so it's hard for us to tell you how good your chances are in your particular case. Your attorney should be able to tell you what to expect from the judges in your area.
If you're searched illegally and nothing is found, you should still consider taking legal action or at least filing a complaint.
This is a tricky situation. Of course you should never admit to having illegal items, but you should also make every effort to avoid lying to police. You're always free to remain silent, and police may not hold your silence against you as evidence of wrong-doing.
The main reason to avoid lying is because police are good at detecting it, but in this case that doesn't matter as much because you're already a suspect if they ask about contraband.
The most important thing is to be prepared for the inevitable next question: "Do you mind if I search you/your car?"
Always refuse the search, and remember that you can't get in trouble for asserting your rights.
The Supreme Court has recently upheld laws permitting searches of parolees.
In many states, parolees can be visited and searched in their homes, as well as on the street. If you live with a parolee, surprise inspections are a possibility. To protect yourself, make sure that your room is kept locked and that your roommates do not have access to it. Even during a surprise visit from the probation officer, your property should not be searched if it's clear that it was off limits to other residents.
If you're on probation or parole, or you live with someone who is, always be mindful of the possibility of surprise inspections.
There are several types of roadblocks and they're quite different:
Also known as DUI Checkpoints or sometimes Driver's License Checkpoints, these are the most common roadblocks you might encounter. They function as a general purpose investigatory tactic in which police get a good hard look at passing motorists by detaining them briefly. A roadblock stop is quick, but it gives police a chance to check tags and licenses, while also giving officers a quick whiff of the driver's breath and a chance to peer into the vehicle for a moment.
Remember that your Constitutional rights still apply in a roadblock situation. Though police are permitted to stop you briefly, they may not search you or your car unless they have evidence against you or you agree to the search. Bear in mind, however, that if you're driving under the influence, your Constitutional rights provide very little protection in this situation.
Since the Supreme Court's ruling in Illinois vs. Caballes police also have more leeway to use drug-sniffing dogs in roadblock situations. Unfortunately, the Constitution provides very little protection against this. There's no need to waive your rights simply because dogs are present, but be advised that your legal options are limited if you're arrested as a result of a dog sniff during a roadblock. Keep this in mind when decided who or what to bring with you in the car.
Also keep in mind that police closely monitor cars approaching the roadblock. You're not likely to have any success evading an upcoming roadblock.
Sobriety Checkpoints are generally permitted by the courts, but only if conducted properly. If you're arrested at a police roadblock always consult an attorney before confessing or agreeing to a plea bargain. There might be some legal options that your lawyer can pursue.
Sometimes police will set up temporary roadblocks after a serious crime occurs. The purpose of emergency checkpoints is to capture suspects or to identify possible witnesses. In this situation, police will often allow you to pass through once they confirm that you're not the person they're looking for. Of course, police are free to arrest you for minor crimes even if they're investigating something more serious.
If a serious crime occurs in your area, keep in mind that more police will be on the streets. Officers are often required to work longer hours during emergency periods, which can make them tense and irritable. Use caution in such situations even if you haven't done anything wrong, and remember that dealing with emergencies is something we want our police officers to do.
Checkpoints Near the Border
Police sometimes set up checkpoints near national borders. These are similar to other checkpoints in that officers may ask questions and check your documents. Police may try to intimidate you in consenting to a search, but remember that being near a border is not the same as crossing it. You have a right to refuse searches at these checkpoints just like the others.
Drug checkpoints are a trap! The Supreme Court has ruled that random checkpoints for the purpose of finding illegal drugs are unconstitutional. However, police sometimes put up signs warning drivers of up-coming drug checkpoints and instead pull over people who make illegal u-turns or discard contraband out the window. If you see a sign saying "Drug Checkpoint Ahead", just keep driving and don't panic. If there's a rest area following the sign, DO NOT pull into it. If you do, you'll find yourself surrounded by drug-sniffing dogs.
Police Departments, especially in the Mid-west, have been pushing their luck with this tactic, so if you encounter anything resembling an actual drug checkpoint, please contact an attorney to explore your legal options.
College students suffer from an unfortunate lack of privacy rights in many situations. At a state school, the dorm is the property of the state and can generally be searched at the discretion of school officials or campus police. Similarly, at a private school, the dorms belong to the school and can be searched at its discretion as well.
College students still have 4th Amendment rights that apply in other situations, but because you don't own your place of residence, you have no authority to assert a 4th Amendment claim in regards to your room.
Campus policies vary from one school to the next, so it's best to check the policy at your school so that you know what to expect. Some schools offer better privacy protection for students than others, but there's generally no harm in attempting to protect your privacy by refusing searches and refusing to incriminate yourself. We've heard success stories from college students who asserted their rights, so remember that keeping calm and knowing the rules will help improve your odds of avoiding problems.
Finally, we've observed that marijuana smoking is the quickest and easiest way to get in trouble in your dorm. Many schools put significant resources into catching and punishing marijuana users on campus, often resulting in severe sanctions such as arrest, removal from the dorms, suspension, urine testing, fines, parental notification, etc.
No. The Supreme Court has never ruled that police must present the warrant when performing a search. The purpose of the warrant is to establish legal authority to conduct the search and create a paper trail in case the search is challenged. Since executing a search warrant is considered a high-risk activity for police, officers are permitted to enter quickly and forcefully. If you have doubts about the legality of a search warrant issued against you or your property, you'll need to discuss the matter with your attorney.
Remember that police don't need consent to search if they have a warrant. If officers ask for consent to search, always refuse, even if they claim that they have a warrant or that they can easily get one.
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