The legal system in the US is one arm of the octopus we call "The System." It was designed by and is used for the benefit of those who control the society. It was not designed to protect the "rights" of those who oppose capitalism or business as usual.
Because of various historical accidents, there are aspect of the law that, at least in theory, protect individual "liberties." The law presumes, however, that everyone knows what these protections are and if you don't know what they are, it is very easy to "waive" these rights. Therefore, in the interest of giving us all an equal chance when we're confronted by the cops, here are some thoughts on the law of police stops and searches.
This article is based on how things are supposed to be "in theory." The reality is that police can and will do anything they want out on the street. And they won't hesitate to lie about it later on.
But some cops are worse than others and a lot of them may treat you differently if they think you know your rights. The police depend on fear and intimidation to get what they want. Don't let them get away with more than they are allowed to because of fear.
If you run into a really bad cop, talking back to him and standing up for your rights might get you beaten up or killed, so be careful about the realistic limits of "the law" and of your rights in America. The cops are perhaps the most dangerous members of our society so pay attention when you talk to them. What if I get stopped by the cops?
When a police officer stops you on the street, the law says that the stop will fall into one of 3 categories: consensual contact, detention and arrest. Which one you're in determines how badly they can fuck with you.
At one end is a "consensual contact." This means that the officer comes up to you and says "can I speak with you?" If you say "yes," you have consented to have contact with the police. That is very bad. The result of such "consent" is that you won't have various "rights" under the Constitution.
Especially if you think you may be guilty of something (you have a warrant out on you, you are carrying drugs, you just did something illegal), never consent to talk to a police officer. This sounds backward. The normal impulse when confronted with a cop is to be polite and try to convince them that you aren't doing anything. If you follow such an impulse, you are unlikely to actually convince the officer and if the cop gets you on something, you won't be able to get out of it later on in court. Never voluntarily talk to the police!
If you don't think you are guilty of anything, it still isn't a good idea to consensually talk to the cop. You never know how the conversation will end up. And if people figure "well, I'm not guilty of anything so I'll let the police stop me and ask me a few questions now and then" the police state will be on the march. Further, it will encourage the idea that people who don't want to talk to the police have something to hide. How do I avoid a consensual contact?
If the cop asks, "can I talk to you" say something like "I'm sorry, I'm in a hurry and I don't have time to talk to you right now." If the cop insists, ask him "Are you detaining me? Am I free to leave?"
Ask this several times to make sure the cop will have a hard time lying and saying you didn't mention it later on if you get to court. If it is really a consensual contact, the officer ought to let you go on your way if you ask to go. If you don't actually verbally ask to leave, the court will presume that you consented to whatever follows.
The next category of citizen/police contact is called a detention. The police are only allowed to detain a citizen when there are "specific and articulable facts supporting suspicion" that you are involved in criminal activity.
This means that they can't detain you on a "hunch." "Specific and articulable facts" (SAF) means that the police must have observed something about your behavior and character that links you with specific criminal activity. If the police detain you without SAF, the detention is illegal and whatever they obtain as a result of the detention (evidence or arrest) cannot be used against you in court. How does this all work in practice?
Suppose the police stop you because it is late at night, you are walking around the city, "you look at them funny", look "strange" or are homeless or the wrong color.
The officer says "Excuse me, may I talk to you?" You say alright. You have just consented to talk to the police. If the officer notices after talking to you for a while that you have spray paint on your finger or wheatpaste on you clothing, or notices a bulge in your coat, the officer can find cause to detain you and could eventually arrest you.
If, however, you said "no, I have to go" the officer is supposed to let you go because he or she doesn't have SAF that you are involved in criminal activity just because you look funny and it is nighttime. The courts have found all of the facts mentioned above insufficient to justify a detention.
If the cop says, "well, you can't go" or otherwise detains you, then if they do find reason to arrest you, you may be able to avoid the penalty because the original detention was illegal. If the officer detains you and finds nothing, you should complain to the city, the "police review commission" in your town (if there is one) and you should let COPWATCH know about what happened. (510-548-0425.)
Often (except as noted below), when you start throwing around terms like "detention" and "specific and articulable facts" the cop is going to lay off. A lot of the police's power is intimidation and the public's ignorance.
It is crucial that you let the officer know that you are not "consenting" to talk to him and that the only way you will talk to him is if he detains you.
There may be SAF in some circumstances. If you rob a bank wearing red pants and a string tie and are spotted 15 minutes later in those same clothes carrying a white money bag reported missing by the bank, the police will probably have SAF. There is nothing illegal about a police detention if they have SAF, but not just anything is a "specific and articulable fact" supporting suspicion that you are involved in criminal activity. The facts have to be very specific.
A lot of "police harassment" situations involve the police stopping people because they "look wrong" and then going on "fishing expeditions" looking for a valid reason to arrest which they didn't have at the beginning of the stop. Don't give the officer a chance to find anything out--"Just Say No." What if the officer asks to search?
More serious than consensual contact and detention is an arrest. For an arrest, the police need a high level of suspicion of your involvement in criminal activity. If you are arrested, the police can search you as part of the arrest.
If the officer asks to search you without arresting you, you can say "no." The police have the right to search for weapons if they feel in danger of being attacked. They are not allowed to search people for other items. In a lot of cases the police ask to search someone and obtain "consent" to search. Even though the search isn't justified, it will be legal because the citizen didn't object and therefore "consent" is presumed.
If the officer asks to search you or any of your property, tell them you don't have a weapon and ask if you are under arrest or if they have a warrant. If you aren't and they don't, tell them "I would rather not let you search." They may ask many times and seem to be acting with complete authority. Just Say No. You will not let them search you unless they arrest you or have a warrant, and you don't have a weapon.
If they and search anyway and find something, you may be able to escape the penalty later in court. If the cop is obeying the law, they should leave you alone. The fact that you refused to be searched does not make you more "suspicious" and give them an excuse to search.
Of course as stated above, the police may ignore all of these laws and they may be less than polite and non-violent. When a cop gets out of control, deal with it carefully. But don't voluntarily consent to either a search or a detention.
700 Eshleman Hall
Berkeley, CA 94702
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