Exercising Your Civil Rights During Police Encounters
During police encounters, there are 3 rights specified in the Bill of Rights that are important to know:
- Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”
- Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…”
- Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…and to be informed of the nature and cause of the accusation…and to have the Assistance of Counsel for his defense.”
An officer has the power to detain you based on the suspicion that you have committed a crime, even a traffic violation.
You must show your information. Police officers are allowed to detain you and require you to provide information. Depending on the state, this information is typically, your driver’s license, proof of insurance, and registration of the vehicle. The police officer is able to do this while you are in the vehicle because you are required to be licensed by a state to operate a vehicle. Unlike a traffic stop, law enforcement officers are not allowed to detain you while you are on the street and require you to provide information unless they have reasonable suspicion that you have committed a crime.
You have the right to not consent to a police search. Without a warrant or probable cause, you do not have to consent to a police search. Probable cause means that the police have clear facts or evidence that leads to the belief that you are committing an illegal activity. Probable cause does not include an expired license or any other minor traffic violations. Not consenting to a search doesn't give the police probable cause to justify it. After exercising this right, the police officer may go as far as lying and threatening to “impound your car” or “call in the dogs”, just to get your consent. Politely state, “Am I free to go?” If any search is conducted and anything seized, exercising this right will allow you to create legal grounds to possibly challenge the police officer in court.
You have the right to film and record the encounter. Under the First Amendment, it is perfectly legal to take photos and videos of police officers everywhere in the United States, as long as it doesn’t interfere with their duties. (Knafo & Schwartz)
You have the right to remain silent. Being questioned by the police can be intimidating, even when you are not guilty of anything. You do not have to answer police questions, especially questions unrelated to the traffic stop, like “Where are you headed”. Decline to answer any police questions by politely saying that you have the right to remain silent as provided by the Fifth Amendment. This doesn’t automatically mean that the police officer will stop asking you questions, but you do have the right to remain silent. (Katz)
The length of the detention of the traffic stop must be reasonable. Although there is no specific amount of time that an officer can detain you, the length of the stop must be reasonable to the violation.
You have the right to request and record officer information. If you believe misconduct occurred by the officer, politely ask for their badge or serial number. If you do not feel comfortable requesting this information, if you received a citation, their number should be listed, and if they have a police cruiser, note the patrol car number, as well. (Snider)
At a police checkpoint, also known as a license check, police officers are more limited in their ability to collect information that may lead to a charge being brought against you because the police have not detained you for violating the law.
You must show your information. As stated above, police officers are allowed to require you to provide information. Depending on the state, this information is typically, your driver’s license, proof of insurance, and registration of the vehicle. The police officer is able to do this while you are in the vehicle because you are required to be licensed by a state to operate a vehicle.
STOP AND FRISK
If a police officer has reasonable suspicion that a crime has been committed or is about to be committed, they may stop a person. If a police officer has reasonable suspicion that a person is armed and dangerous, they may then conduct a frisk, which is a quick pat-down of the person’s outer clothing.
You have the right to be free from unreasonable search and seizure. If the police officer has a reasonable suspicion, they can stop you and pat you down for weapons. Under the Supreme Court case, Terry v. Ohio, the Court held that police can stop a person if there is reasonable suspicion that the person committed or is about to commit a crime, and the police can frisk the person if there is reasonable suspicion that the person is armed and dangerous, and anything seized could be introduced into evidence. (Terry v. Ohio) Any evidence obtained during an illegal frisk cannot be entered into evidence.
A frisk is only conducted under the reasonable suspicion that you have a weapon. Under no circumstance does a frisk involve the removal of clothing or the touching of body parts. This means the officer cannot look for anything beyond the person’s outer garments, into pockets, or underclothes, however, if the officer feels something like a weapon during the frisk, they can retrieve it. (Can the police stop a person and pat them down on the street without a reason?) Even if the object seized is not a weapon, a court will consider it to have been lawfully discovered, however, if the officer can’t tell from the frisk what the object is and only that it is not a weapon, the officer can’t explore it further. (Limits to Frisks by Police Officers) The officer can’t squeeze it or manipulate it in any way while knowing in fact that it is not a weapon that they're touching. Although, the officer could still ask about the object, however, you can invoke your Fifth Amendment right. In Minnesota v. Dickerson, Timothy Dickerson was exiting an apartment building and was spotted by police. (Minnesota v. Dickerson) He saw the police and turned to walk in the opposite direction. The police officers commanded Dickerson to stop and they proceeded to frisk him. An officer discovered a lump in Dickerson’s pocket and the officer assumed that the lump was cocaine because of the history of cocaine trafficking in the area. The officer proceeded to reach in Dickerson’s pocket and confirmed that the lump was a small bag of cocaine. The Supreme Court held that police can’t go beyond the limits of a frisk because under Terry v. Ohio, police can only perform a frisk under the assumption that a person is armed, and the cocaine found was inadmissible in Court. (Minnesota v. Dickerson)
You don’t have to empty your pockets or purse unless the officer has probable cause. Don’t empty your pockets if the police officer requests or asks. Politely state that you do not consent to searches. If the police officer is under the assumption that you have a weapon in your pockets, the officer can conduct a frisk and retrieve it.
You have the right to film and record the encounter. As stated above, under the First Amendment, it is perfectly legal to take photos and videos of police officers everywhere in the United States, as long as it doesn’t interfere with their duties. (Knafo & Schwartz)
POLICE QUESTIONING & ARREST
Do not resist the arrest, even if you believe the arrest is unfair. This only adds to your charges.
You have the right to have your Miranda rights read to you. At the point you are arrested, you have the right to have your Miranda rights read to you. If the police officer fails to read you these rights, anything you say during the questioning cannot be used as evidence. As provided by the Supreme Court case, Miranda v. Arizona, the Court outlined the necessary aspects of police warnings to suspects, which include the right to remain silent and the right to an attorney during interrogations. (Miranda v. Arizona)
You have the right to remain silent. As stated above, you do not have to answer police questions. Decline to answer any police questions by politely saying that you have the right to remain silent as provided by the Fifth Amendment. This doesn’t automatically mean that the police officer will stop asking you questions, but you do have the right remain silent. (Katz)
You have the right to have an attorney present. If you are being questioned about a crime, tell the police officer you don’t want to answer any questions without your attorney present or you want an attorney appointed to you as provided by the Sixth Amendment. At that point, the police officer should stop asking questions about the crime until an attorney arrives, and if they do not stop the questioning simply invoke your right to remain silent and repeat that you will not answer any questions without your attorney present.
You have the right to make a phone call. With attorney/client privilege, the police cannot listen if you call a lawyer.
Collect evidence. As mentioned above, collect the officer’s badge/serial number and patrol car numbers, and any other details. Write down, for your records, exactly what occurred. Get any contact information for any possible witnesses. If you are injured, take pictures of your injuries and keep any medical records.
File a written complaint. You can file a written complaint with the agency’s internal affairs division, and if you want, the complaint can be filed anonymously. You also can hire an attorney to represent you in a possible civil suit.
Can the police stop a person and pat them down on the street without a reason? (n.d.). Retrieved from FreeAdvice: http://criminal-law.freeadvice.com/criminal-law/arrests_and_searches/search-without-reason.htm
Katz, D. (n.d.). Questioned by Police? Know These 3 Rights. Retrieved from FindLaw: http://blogs.findlaw.com/blotter/2013/01/questioned-by-police-know-these-3-rights.html
Knafo, S., & Schwartz, C. (n.d.). It's Perfectly Legal To Film The Cops. Retrieved from Huffington Post: http://www.huffingtonpost.com/2014/08/13/filming-police-officers_n_5676940.html
Limits to Frisks by Police Officers. (n.d.). Retrieved from Nolo: Law for All: http://www.nolo.com/legal-encyclopedia/limits-frisks-police-officers.html
Minnesota v. Dickerson. (n.d.). Retrieved from Oyez: http://www.oyez.org/cases/1990-1999/1992/1992_91_2019
Miranda v. Arizona. (n.d.). Retrieved from Oyez: http://www.oyez.org/cases/1960-1969/1965/1965_759
Snider, B. (n.d.). Civil Rights Durnig a Traffic Stop: 5 Reminders. Retrieved from FindLaw: http://blogs.findlaw.com/blotter/2013/07/civil-rights-during-a-traffic-stop-5-reminders.html
Terry v. Ohio. (n.d.). Retrieved from Oyez: http://www.oyez.org/cases/1960-1969/1967/1967_67
What do you think?
Do you feel more aware of your rights after reading this article?
© 2015 Sarah Ehling