Essential Know Your Rights

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For best results in any police encounter be armed with knowledge and common sense. And remember to always be mindful of your safety.

Right to Silence

  • You always have the right to remain silent. State I am going to remain silent, I want to speak to my lawyer,” nothing more.
  • NOTE: You must exercise your right. Nobody can invoke your right for you. If you are a minor the police are supposed to check with your parents before questioning you.
  • You may think it best to speak to the police, but it is a REALLY good idea to do that with a lawyer so you have someone to protect you. It is always your choice.
  • If you start answering questions you **CAN** stop at any time. BUT you must affirmatively invoke your right to silence!

If the Police Question You

  • If the police start to question you, or just start a conversation, ask, “Am I free to go?
    • If they answer “YES,” you may say nothing and walk away.
    • If they answer “NO,” you are being detained. The police are supposed to have a reason to detain you, so you may ask “why?” They may or may not give you a reason, but make a note of what, if anything, they say. You do have to stay but you do not have to talk. Say, “I wish to remain silent. I want to talk to a lawyer.”

Searches

In Your Home

Your right to privacy in your home is rooted in the Fourth Amendment of the US Constitution. In general, a person has the greatest reasonable expectation of privacy in their own home. Generally

You do not have to open the door or allow the police in your home without a warrant. You can either speak through the door or walk outside closing the door behind you.

An apartment is treated the same as a house for 4th Amendment purposes. However, you may not have a reasonable expectation of privacy in an apartment building hallway or other common area, even if the building is locked.If the Police DO NOT have a Warrant

  • If the police knock on your door, DO NOT open the door.
    • Speak through the door or walk outside closing the door behind you.
  • Ask: “Who are you?” If it is the police ask, “What do you want?”
    • LEO Common Response: “We just want to talk to you.”
If the police DO NOT have a warrant

If the police DO NOT have a warrant it is your choice about whether you want to open the door. You have the right to say “I have nothing to say.” Ask them to slide their business card/or name and number under the door and you can have your lawyer call them.

  • If you do not have a lawyer you can say, “I do not wish to speak to you without a lawyer present.”
  • If you believe the visit was connected to a criminal investigation or you do not know we can get you in touch with an attorney to ask for advice.

If the police force their way into your home, with or without a warrant, clearly state, “I do not consent to this search. I wish to remain silent. I want to speak to a lawyer.” If you verbally or physically interfere with the police, you risk arrest.

If the Police DO have a Warrant

If the police say “We have a search warrant” you reply: “If you have a warrant, slip it under the door.”

  • If the police show you a search warrant, make sure it has the correct address and is signed by a judge. Stand back from the door and state “I do not consent to this search. I am going to remain silent. I want to speak to a lawyer.”
  • Be clear when you read it, preferably aloud, the places the police are authorized to look and what they are authorized to look for. A search warrant sometimes limits the search to a specific room but sometimes the police will exceed their authority and may search the entire home. Just as with any other search, you may again say, “I do not consent to this search.”
  • If you know a lawyer, call the lawyer and have the lawyer talk to the police.
  • If you verbally or physically interfere with the police you risk arrest.
  • Make notes of police names, badge numbers, and where the police search, and ask for a list of anything they take. As with any other encounter, you can film a search of your home.

Roommates can only consent to searches of common areas. If you are not home, and an agent wants to search your room, they legally can't. However, spouses and parents can consent to private spaces. Be sure to talk to whomever you live with about what to do if an agent knocks.

http://ccrjustice.org/if-agent-knocks-booklet

Perimeter Searches

Any garbage, or anything else, placed outside can be searched without a warrant.

K-9 Searches around your home

1. Dog Sniff (low-tech): US v. Place (1983) (61) Hold: not a search—(a) sniff is limited intrusion; (b) no Reasonable Expectation of Privacy in hidden contraband and sniff can only detect contraband.

3rd Party Premises

Warrants permissible for any property, regardless of owner/occupant where there is probable cause that evidence will be found even if that search takes place in a non-criminal 3rd party. Zurcher v. Stanford Daily (1978) (129).

Other Issues:

What constitutes a reasonable expectation of privacy is an ever-expanding concept. Here are some general rules and where the case law currently stands.

Heat Sensors

Heat Sensors used from outside a house to detect escaped heat from Marijuana grow lights inside house are a search. Where the police obtain information regarding the interior of the home by use of sense-enhancing technology not otherwise obtainable and where the technology is not in general public use will constitute a search and a warrant would be required. The policy rationale is to protect intimate details of home life. Kyllo v. US (2001).

Aerial Surveillance
  • Aerial Surveillance of a fenced-in yard was ok without a warrant because the police officer has the same ability as any other member of the public to fly over and get a view, which means there is no reasonable expectation of privacy. California v. Ciraolo (1986).
  • Aerial photographs of protected industrial complex from navigable airspace using hi-tech camera was also not considered a search requiring a warrant, or warrant exception. Dow Chem v. US (1986)
  • A hovering helicopter not a search. Florida v. Riley (1989)
Telescopes

Yes a search where a police officer used a telescope to look from building A into 17th story window of building B. Taborta (2d 1980)

Street Stops

If the police ask to search you or search your bag, you do not have to allow them. Say, “NO, I do not consent to a search.” If the police search anyway, continue to say, “I do not consent to a search.” If you do not actively object to the search, then your silence will be considered consent. If you consent to a search, even by silence, anything the police find can be used against you in court. it is best to not phsyically resist a search. Resisting a search physically can lead to significant charges, including Felony Assault on an Officer, often charged with even the lightest physical contact.

Exceptions to the Warrant Requirement

  • Consent;
    • Not exactly an exception, but if you allow the police to search then there is no violation. You can tacitly consent.
  • Plain View;
    • A warrant is not required when evidence of criminal activity is in plain view.
      • E.g., drugs on a table.
  • Searches incident to arrest;
    • When a person is placed under arrest police can search the person and the area immediately surrounding the person for weapons, for officer safety, and to avoid the destruction or concealment of evidence.
  • Exigent Circumstances;
    • Allows entrance into a building without a warrant if there is a situation where people are in imminent danger, evidence faces imminent destruction or a suspect will escape. It is a fact based determination.
  • Automobile searches;
    • Police can search your car if they have probable cause to believe evidence of a crime will be contained inside. (Carroll v. US).
  • Border searches;
    • See border section.
  • Administrative searches of regulated businesses;
    • Bars are subject to entry to check documents.
  • Boat boarding for document checks;
  • Welfare searches;
    • Otherwise known as public health and safety check. Law Enforcement Officer is told that there is screaming of help and person in apartment has a history of seizures. They knock and no one answers. They enter apartment thinking that someone is having a seizure and find a meth lab.
  • Inventory searches;
  • Airport searches;
  • School searches;
  • Searches of mobile homes;
    • When these are mobile then automobile standards apply.
    • This is determined by the circumstances, e.g. not mobile when they are up on cinder blocks.
  • Searches of offices of government employees.

http://www.caselaw4cops.net/articles/exceptions.html