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Freshet LegalWiki

Welcome to the Freshet LegalWiki. Thank you for working to protect the water and the Water Protectors!

Freshet Collective

The Freshet Collective is a non-profit organization whose mission is to raise, manage, and disburse legal defense funds to support individuals arrested for their involvement in direct action as part of liberatory grassroots social movements. We offer jail support, court support, criminal defense and legal education services to water protectors who do not have access to other resources.

Please visit our full website.

Contents

Freshet LegalWiki

Freshet LegalWiki is intended to provide legal information for people impacted by the legal system as a result of their work to protect the water. It acts as an easily accessible hub for accurate information and referrals about the criminal process for arrested persons and their families and communities.

Why:

The criminal legal system is vast and complicated, and in dealing with arrest, jail, and legal proceedings, confusion can have dire physical, economic, legal, and emotional consequences for criminal defendants, their families, and their communities. Existing information is often stated in unnecessarily complex language, hidden under multiple layers of bureaucracy, scattered throughout different offices and websites, and altogether inaccessible to those who most need it.

Quick and easy access to reliable information in straightforward language about the criminal process will serve to mitigate harms and enhance the capacity of the system to function well for everyone involved. The Freshet LegalWiki does not rewrite this information, recreate an existing service, or provide legal advice, but rather will collate existing information and make it easily accessible.

What:

This is geared to provide legal information and answer the most frequently asked questions about the criminal system relevant to Water Protectors. This is not legal advice.

For more information and assistance please call the Water Protector Jail Support/Legal Support Hotline at: (605) 519-8180

New information will continue to be integrated.

What this Wiki is not:

 * This wiki does not contain any type of legal advice.

Credit and Gratitude

The information contained in this document has been collected through state offices, The Water Protectors Legal Collective, The Civil Liberties Defense Center, Just Info, Mutant Legal and previously created documentation of the Freshet Collective.

Particular thanks to the crew at Just info, whose work provided the foundation upon which this Wiki was built.

Frequently Asked Questions after Arrests

How do I find out if a specific individual has been arrested and is in custody?

Our hotline operators will have the most updated list of who we are tracking and whether we have confirmed their arrest and if they are still in custody. It can take more than 24 hours for the jails to process people, especially if there have been a large number of arrests.

Individuals inquiring about relatives or friends can call Morton County jail about specific people, and should stay in touch with the legal team. The courts will post all arrests and warrants on the following website: http://publicsearch.ndcourts.gov/.

How do I find out when someone is having a bail hearing?

Look on Morton County court docket or the docket in the applicable county (http://publicsearch.ndcourts.gov/). The main counties to which arrestees have been taken are Cass (Fargo), Burleigh (Bismarck), Mercer, Morton, Stutsman, and Ramsey.

How do I find out when someone is having a court date (other than bail hearing)?

Everyone who has been released or arraigned was given a piece of paper listing the next court date. You may also find helpful information at: http://publicsearch.ndcourts.gov/. The legal team is also tracking arrests and upcoming courts dates.

Most water protectors have been advised to ask for a court-appointed lawyer, who are generally available to people making less than $40,000 annually. Arrestees should know that the courts may ask for income verification. Protectors can request a court-appointed lawyer at their first appearance or later in the process. A number of people have yet to be appointed attorneys, including arbitrary denials (many are related to incomplete applications) about which the ND Indigent Defense office has been speaking to judges, clerks, administrators about in an attempt to clear up.

I believe my civil rights were violated. What should I do?

The Water Protector Legal Collective has established a civil rights violation hotline that Water Protectors can call to do an intake and get information on civil rights violation. The CIVIL RIGHTS VIOLATION HOTLINE IS 701-595-0737.

Does the legal team defend all of the different camps?

Yes. We provide support for all Water Protected-related activity for all of the camps in North Dakota.

Frequently Asked Questions About the Trial Process

What is a Plea Offer?

A plea offer is a written agreement between the State and you where you agree to plead guilty under certain terms and conditions. Since both the State and you risk losing at trial, plea agreements are a means of arriving at a reasonable disposition without the necessity of going to trial. Your attorney will advise you on your options to accept or reject the plea agreement. Only you can decide to accept the plea agreement or to proceed to trial.

What is a Trial?

A trial is the presentation of evidence to either a Judge or Jury for a decision of whether you are guilty “beyond a reasonable doubt” or not guilty of the crime(s) charged. If you are found guilty, you can then be sentenced for that crime by the Judge. If you are found not guilty of the crime, the charge is dismissed and you cannot be recharged. After a guilty plea has been entered either through a plea agreement or conviction by a Judge or Jury, you will be sentenced. If your case is a felony, the Court will likely order a Pre Sentence Investigation (PSI) report and sentencing will be done after the PSI is completed.

Can you explain the Trial process?

Trials in criminal cases are to determine factual guilt or innocence to the charges. Since the accused person is presumed innocent, the State has to prove the defendant is guilty beyond a reasonable doubt by proving each and every element of the criminal offense or offenses charged. The prosecutor presents evidence by way of witnesses testifying in court, along with any documents, photographs, reports, or other physical items (for example, the bloody glove in OJ Simpson’s case). The defendant also gets an opportunity to present evidence if he wants. After all of the evidence is presented, the fact finder decides whether the defendant is guilty or not guilty.

There are two types of trial, a jury trial and a bench trial (also known as a court trial). The big difference between a jury trial and a bench trial is who decides what the facts are. That is, who decides whether a defendant is guilty or not guilty. The right to a jury trial is enshrined in our Constitution. The idea behind it was to share power between the government and the citizens. When it comes to a bench trial, the defendant has to request it and specifically waive the right to a jury trial in writing or in open court, the prosecutor has to consent to a bench trial, and the judge has to agree to hear the matter as a bench trial. In other words, even if the defendant wants a jury trial, the prosecutor and judge must agree before a bench trial is held instead of a jury trial.

In a jury trial, a jury of either 12 persons (in all felony cases and some misdemeanor cases when a jury of 12 is timely demanded) or of 6 persons (in all class B misdemeanor cases and most class A misdemeanor cases) decides what the facts are and if those facts match with the elements of the crime. The judge in a jury trial has a more limited role, just ruling on legal issues and making sure the evidence is presented in the way allowed by law. In a bench trial, on the other hand, the parties are giving the jury’s power to decide the facts to the judge. The judge then effectively serves as both the judge and the jury, deciding what the facts are and what the law is.

The first stage of a jury trial is picking the jury. This process is called voir dire. It is a process of elimination. The court calls in a bunch of potential jurors. The lawyers ask the jurors questions. Based on the potential jurors’ answers, the lawyers try to strike jurors that would be favorable to the opposing party. The idea is that the jurors that are left at the end of the process are the ones who should be most fair to both sides. After jury selection, the prosecution will give an opening statement. The opening statement is a preview of what evidence the prosecutor expects to present. After the prosecutor’s opening statement, the defense attorney has an opportunity to present an opening statement.

Once the opening statements are out of the way, the State will call its witnesses in what is called the State’s case-in-chief. The purpose of calling witnesses is to ask them questions and have them testify about their answers. Witnesses might also be used to introduce documents, demonstrative evidence, video or audio recordings, photographs, or other evidence allowed to be presented to the jury. After the prosecutor asks all of the questions of a witness, the defense has a right to cross-examine the witness. Cross-examination means the defense lawyer gets to ask questions of the witness to challenge the person’s credibility or observations. Throughout the testimony, the lawyers might argue about objections to certain questions or evidence. This means one lawyer is asking the judge to decide whether some piece of evidence should be allowed to be presented to the factfinder. If an objection is sustained, that means the evidence or testimony cannot be considered, at least in the form in which it was presented. If the objection is overruled, that means the evidence can be considered by the factfinder. After all of the State’s witnesses are called, all of the defense cross-examination has been completed, and the State believes it has proven its case, the State rests its case.

After the State has rested, the defense usually makes a motion for a judgment of acquittal. This motion is asking the court to find the defendant not guilty without letting the jury decide the matter because the State failed to sufficiently prove up its case. This motion is usually denied.

After the motion, the defense has the opportunity to put on evidence. Unlike the State that has to put on evidence, there is no requirement that the defendant call any witnesses or present any evidence. The defendant has an absolute right to testify if he wants to, but he also has the right to remain silent. If the defense calls any witnesses in the defense case-in-chief, the prosecutor has the right to cross-examine the defense witnesses. After the defense has called all of the witnesses, if any, the defense then rests.

If the defense calls any witnesses, the State can reopen its case and call additional witnesses in Rebuttal. A rebuttal is limited to issues raised in the defense case-in-chief. The defense has the right to cross-examine any witness called in rebuttal. After the State has called all of the witnesses it intends to call in rebuttal, the State re-rests. This ends the evidentiary stage of the trial. No new evidence can be presented after that.

After all of the evidence is received, the judge gives the jury instructions on the law. The jury instructions outline the obligations of the jury, the elements of the offense, and information about certain defenses. After jury instructions are read, the lawyers get a chance to present a closing argument. Closing argument is the lawyers’ last chance to convince the jury that the evidence shows the defendant is either guilty or not guilty. The prosecutor goes first, giving the State’s closing argument. The defense then gets an opportunity to explain why the defendant is not guilty. Finally, the State gets to give a rebuttal argument, which responds to the defendant’s closing argument.

Finally, after all of the evidence has been received, the lawyers have made their arguments for and against guilt, and the jury has been instructed on the law, the jury is then sent to deliberate in a jury room. Jury deliberations are secret. The jurors talk about the case and collectively decide whether a defendant is guilty or not guilty. All of the jurors must agree. Once a decision is made, the jury returns a verdict. The verdict is then read in open court. Most of the time, each jury member will be polled, or asked if they agree with the verdict as it was read.

After the verdict is returned and the jury is polled, the judge thanks the jury and excuses them. Now, if the verdict was not guilty, the judge informs the defendant that he is free to go, any bail posted will be released and returned, and the defense attorney will prepare a Judgment of Acquittal. If the verdict was guilty, the judge will either move directly to sentencing or will schedule a sentencing hearing at a later time. If a sentencing hearing is set for a later date, the judge often readdresses bail. In some cases, the defendant will be taken into custody at that time and be held without bail.

What is a PSI Interview?

The PSI interview is conducted by a probation officer. A report is written up and a copy is given to the State’s Attorney, the defense attorney and the Judge. The purpose of the PSI is to enable the Judge to learn more about you so that the Judge is better able to impose an appropriate sentence. The PSI includes information about your criminal history and personal background. The individual conducting the PSI will also contact the victim(s) of the crime to determine how he or she has been impacted by your actions. North Dakota law does not allow extra copies of the PSI report to be made so you must review the PSI with your attorney prior to sentencing. Sentencing is the hearing at which the Judge imposes a sentence. In cases involving two or more charges, the Judge can either sentence you to concurrent or consecutive sentences. Concurrent sentences run together, or are served, at the same time. Consecutive sentences run one after the other.

What should I expect at my Initial Hearing?

The initial appearance is the defendant’s first time in court, and is supposed to happen within 48 hours of arrest. This is a very brief hearing, with most of them less than 5 minutes long. The purpose of the hearing is to inform the defendant of his legal rights, explain the charges, the maximum and minimum penalties, determine whether the person wants and is financially eligible for a lawyer called a public defender, set bail, and schedule further court proceedings. In some counties, the rights are read by way of video to all defendants at one time. In smaller counties, the judge will read the rights at the beginning of each hearing. Either the prosecutor or the judge then reads the charging document to the defendant and makes sure the defendant understands the nature of the charges against them. The court then explains the maximum and minimum penalties, and some collateral consequences. The judge then will discuss the defendant’s right to a public defender if the person financially qualifies for a lawyer at public expense.

The court will address bail and issue a pretrial release order at the initial appearance. The court’s pretrial release order outlines the conditions and posting of money that allows a person to be released from custody before trial. The purpose of bail is to ensure the accused person shows up on court and in some circumstances, to protect the public. Bail can be in the form of personal recognizance (a promise to show up), require the posting of cash with the court, or through the use of a bail bond obtained from a bail bondsman. The prosecutor will usually give a recommendation to the court about what bail should be set at. The prosecutor will also usually outline to the court any history of non-appearances (escapes, bail jumping, failures to appear, etc.) and the defendant’s criminal history. The judge usually lets the defendant respond to the bail recommendation with a recommendation of his own. Then, the judge will set bail based on those recommendations and argument. If the person remains in custody 48 hours after bail has been set, the defendant can request the court review bail in the hopes of the judge lowering the bail required for pretrial release.

In misdemeanor cases, this first appearance is also combined with the arraignment, which involves the court asking the defendant to plead guilty or not guilty to the charges. If the defendant pleads not guilty, the case is scheduled for further proceedings. If the defendant pleads guilty, the court usually holds a sentencing hearing right then and there.

What is a Preliminary Hearing?

Preliminary Hearing In a felony case, the defendant has the right to a preliminary hearing. There is no right to a preliminary hearing in a misdemeanor case. A preliminary hearing is a probable cause hearing. It is scheduled usually in the first six weeks of the case. The purpose of this hearing is to root out baseless prosecutions at an early stage. At this hearing, if the defendant chooses to have a contested preliminary hearing, the State must produce sufficient evidence to establish probable cause that a crime was committed and that the defendant likely committed it. Probable cause for this hearing is the same standard as probable cause for to arrest. Since the rules of evidence do not apply at this hearing, the State can rely on hearsay testimony and testimony that would otherwise be inadmissible at trial. Usually, the State will call one witness—usually the arresting police officer—to testify about everything in the case.

The preliminary hearing is often waived, in large part because the state of the law has rendered this hearing virtually worthless in most cases. Waiving the preliminary hearing does not mean the defendant agrees with the charges or that the defendant is guilty. It cannot be used against the defendant at trial. It just moves the case on to the arraignment where the defendant can plead guilty or not guilty. If the defendant waives the right to a preliminary hearing, the court moves on to the arraignment. If there is a contested hearing and the court finds probable cause, the matter is “bound over for trial,” which means the court moves on to the arraignment. If the court does not find probable cause, the case is dismissed, usually without prejudice (which means it can be recharged if the State learns of additional evidence).

What is an Arraignment?

The arraignment is very similar to the initial appearance. In misdemeanor cases, it is combined with the initial appearance. In felony cases, it usually happens right after a defendant waives his right to a preliminary hearing or if there is a contested preliminary hearing and the court binds the defendant over for trial, right after the preliminary hearing. This hearing is very brief, usually lasting only a minute or two. The purpose of the hearing is to ensure the defendant understands his rights, the charges against him, and the applicable maximum and minimum penalties. The one really important difference here, though, is that the judge will ask for the defendant’s plea of guilty or not guilty. If the defendant pleads guilty, the court will go through a plea exchange and a sentencing hearing, usually right then and there. If a not guilty plea is entered, the matter is continued for further proceedings.

What is a Motion?

Motions may or may not be filed, depending on the facts and circumstances of a particular case. Common motions are motions to suppress evidence if the evidence was obtained in violation of the defendant’s rights. If a motion is filed, the opposing party is given an opportunity to respond to the motion in writing before the court considers the motion. The parties can also request an evidentiary hearing and oral argument on the motion. At an evidentiary hearing, the moving party puts on witnesses to testify about the facts relating to the motion. The opposing side can ask the witnesses questions and present its own witnesses on the motion, if that is appropriate. The judge oversees this hearing, and the rules of evidence apply. At the conclusion of the hearing, the court will ask for oral argument from the lawyers about why a particular motion should be granted or denied. The judge will either take the motion under advisement and issue a written opinion or rule from the bench by granting or denying the motion. Most suppression motions are taken under advisement, and the judge’s written opinion is issued a few weeks later.

What is Dispositional Conference?

The dispositional conference is basically a scheduling conference. Some counties do this in writing or at the preliminary hearing; other counties have a separate dispositional conference hearing. The dispositional conference is usually held 60-90 days after the initial appearance. Here, the defense basically tells the court what to expect for the disposition of the case and asks the court to schedule it accordingly.

There are two basic choices at the dispositional conference, with a few variations. Is the case going to trial or is it going to be resolved by a plea? If the case is going to be tried, the question is then whether the case will be tried as a jury trial or as a bench trial where the judge serves as the jury too. If there is going to be a change of plea, the question is then when will that happen: right there or at a later time. Finally, if the parties are not prepared to move forward, the court may grant a continuance.

In summary, the five specific options for the defendant at a dispositional conference are: (1) jury trial; (2) bench trial; (3) continuance; (4) change of plea now; or (5) change of plea later. Unless the case is disposed of by plea (or dismissal) at the dispositional conference, it is just a scheduling conference to schedule later proceedings.

What is a Pretrial Hearing?

The court may or may not have a pretrial hearing before the trial. In some counties, a pretrial hearing happens weeks before trial. In other counties, there is a pretrial hearing scheduled the day before or the morning of trial. At the pretrial hearing, the court usually asks the parties to address certain procedural matters like the number of jurors to call for the panel, ask the attorneys to agree to certain foundational matters to shorten the length of trial or narrow the scope of issues to be tried, ask the attorneys to make certain objections, and to discuss jury instructions. The court may also require the parties to pre-mark any exhibits, papers, or documents that will be presented by either party at trial so those items can be referred to by their pre-marked label. Finally, lawyers may argue certain legal issues at pretrial hearings such as the exclusion of certain evidence or testimony. This allows the judge to be aware of legal issues likely to pop up during trial.

What is a Plea Hearing?

A plea hearing is where the defendant has informed the court that he intends to plead guilty. This only happens if the defendant says he wants to plead guilty. If he does not want to plead guilty, the case continues to trial. At a plea hearing, the judge will advise the defendant that he has the right to plead not guilty, the right to a jury trial, the right to an attorney, the right to confront and cross-examine witnesses (ask the State’s witnesses questions), the right to remain silent, the right to testify on his own behalf, and the right to force witnesses to appear and testify through the court’s subpoena power, and make sure that the defendant knows he is waiving these rights if he pleads guilty. The court will review the nature of the charge that the defendant is pleading guilty to, explain any maximum and minimum penalties, and explain the court has the authority to order restitution. After explaining these rights, the court will make sure that the plea is freely and voluntarily made, meaning that no one has forced or threatened the defendant or made any promises other than the plea agreement or sentencing recommendations discussed in court. Finally, the court will ask for a factual basis to support the plea, which is usually a short statement of facts given by the prosecutor or defense attorney sufficient to support the plea of guilty. Once the plea is accepted, the case moves on to sentencing.

What happens at the Sentencing Hearing?

Sentencing hearings are the punishment phase of a criminal case. They can happen in combination with the entry of a guilty plea or trial, or as a separate, stand-alone hearing at a later date. In most cases, sentencing happens in combination with the plea or trial. Stand-alone hearings are usually scheduled when the court orders a pre-sentence investigation report (“PSI”). A PSI is an investigation conducted by the probation office into the background of the defendant in order to give the judge more information about the case before sentencing. A PSI involves an interview with the defendant about certain demographic information, the defendant’s version of events, information about the defendant’s friends, family, school, work, and educational history. It may also include medical or psychological records, or risk assessments designed to help the judge determine whether the person is likely to commit more crime in the future. A sentencing hearing happens only after there has been an adjudication of guilt, meaning either the jury found a person guilty of an offense or the person pleaded guilty.

At a sentencing hearing, the judge will ask whether there is a plea agreement in place or if there will be sentencing recommendations made to the court. If there is a plea agreement in place, the court will ask for the plea agreement and then decide whether to accept or reject the agreement. If the agreement is accepted, the court will impose the agreed upon sentence. If the agreement is rejected, the defendant is allowed to withdraw his guilty plea and have a trial or to present a different plea agreement to the court at a later time. On the other hand, if there are just open sentencing recommendations, the court is free to impose whatever sentence the judge finds appropriate under the circumstances. The prosecutor will be asked to provide the judge with the prosecutor’s recommendation. Then, the judge will ask for the defense attorney’s recommendation. In addition to the recommendations from the prosecutor and defense attorney, and perhaps the probation office if a PSI is ordered, the court may receive testimony or a written statement from the victim, called a victim impact statement. The court will also allow the defendant to speak at sentencing. This right is called the right of allocution. Some defendants say nothing, some say they are sorry, and some give a statement about why the crime was committed or why the court should impose a particular sentence. The court is then free to decide whether to impose the prosecutor’s recommendation, the defense attorney’s recommendation, or something else. The judge’s decision might be more or less harsh or severe than what was argued by the attorneys. If the defendant does not like the judge’s decision, there is very little that can be done about it, so long as the sentence is within the minimum and maximum penalties.

After the sentence is pronounced in court, the judge will sign a written judgment or order explaining the terms of the punishment. The punishment might include jail, probation, fines, treatment, or other appropriate conditions.

What are Post-Trial Motions?

After a trial, it may be occasionally appropriate to file post-trial motions. These motions are incredibly fact-specific, and are only appropriate under limited circumstances. Common post-trial motions include motions for a judgment of acquittal (this can be brought before or after the jury’s verdict is issued), motions for a new trial, motions to arrest judgment, motions to correct or reduce a sentence, or motions to correct a clerical error in a judgment or order.

What is an Appeal?

After a final judgment or order is entered, a defendant has the right to appeal the case. To start an appeal, a notice of appeal must be filed with the Clerk of the North Dakota Supreme Court within 30 days from the docketing of the judgment or final order. If the notice of appeal is filed after that date, the Supreme Court cannot review the case. An appeal is not a new trial; it is a review of the evidence and matters in the court record presented at the trial court level. No new evidence can be submitted at this stage of the proceedings.

The vast majority of cases are upheld on appeal based on the standard of review. For legal issues, the Supreme Court reviews those decisions without regard to the trial court’s decision. The Supreme Court reviews factual determinations under the clearly erroneous standard, which means the Supreme Court will not change a trial court’s determination unless it was clearly erroneous. For discretionary matters, the Supreme Court reviews the trial court’s decision for abuses of discretion. From the Supreme Court’s perspective, judges rarely abuse their discretion, and factual determinations are rarely clearly erroneous.

At the same time as the notice of appeal, the person appealing, now called the Appellant, must request the transcripts necessary for the Supreme Court to know what happened at the trial court level. A transcript is a written record of what was said in court. Unless an extension of time is granted, the court reporter prepares the transcripts within 50 days of the request for the transcript. After that, the Appellant has 40 days to prepare an Appellant’s Brief, which is a legal document filed with the Court explaining what went wrong at the trial level and why the Supreme Court should rule in the Appellant’s favor. The Appellant is also required to prepare an Appendix, which contains key documents filed with the trial court. Once the Appellant’s Brief and Appendix have been filed and served on the State (now called the Appellee), the State will have 30 days to file its Appellee’s Brief. This brief responds to the issues raised in the Appellant’s Brief, and generally contains arguments why the trial court’s decision should be upheld. After the Appellee’s Brief is filed, the Appellant can choose to file an Appellant’s Reply Brief, which is a shorter brief responding to the arguments raised in the Appellee’s Brief.

After all of the briefing has been done, the Supreme Court will schedule oral arguments, where the lawyers will present their arguments to the Supreme Court and answer any of the Supreme Court Justices’ questions. The Supreme Court never rules from the bench. They issue a written decision at a later time, usually within 40 days if they summarily affirm the trial court’s decision, or 70-90 days if the Supreme Court writes a full opinion. These are not hard and fast timelines: some cases are decided faster or slower than these timelines, depending on the complexity of the case.

After the Supreme Court issues its decision, it will file its Judgment and Mandate, which is a document telling the trial court that its decision is final. If the Supreme Court upholds the trial court’s ruling, the matter is over unless there is an appeal to the United States Supreme Court. If the Supreme Court reverses the trial court’s decision, a copy of the judgment, the Court’s written opinion, and any instructions for the trial court are sent for the trial court to fix whatever was wrong with the original proceeding.

What is Post-Conviction Relief?

Instead of or as a supplement to a direct appeal, a person can also seek post-conviction relief. Post-conviction relief is an indirect attack on a criminal judgment or final order. As a general matter, post-conviction relief petitions must be filed within 2 years of the judgment or order becoming final.

Post-conviction relief provides a convicted defendant with an opportunity to challenge the conviction for a number of reasons. Those reasons include: (1) the conviction was obtained in violation of the law, (2) that the law was unconstitutional or the conduct alleged to be criminal was constitutionally protected, (3) that the trial court did not have jurisdiction, (4) that the sentence was illegal, (5) that newly discovered evidence requires a new trial, (6) that the law has changed so much that it should apply retroactively to the defendant, or (7) the sentence has expired and the person’s liberty is still being restrained.

The most common reason for filing post-conviction relief petitions is a claim of receiving ineffective assistance of counsel. Ineffective assistance of counsel claims are very difficult to prove. The burden is on the defendant to show that his lawyer’s performance fell below an objective standard of reasonableness and that the lawyer’s defective performance prejudiced him. That means not only does the defendant bear the burden to show his lawyer was incompetent, he has to show that the result would have been different if his lawyer’s performance was reasonable. This is very difficult to do, which is why most ineffective assistance claims fail.

Essential Know Your Rights

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.”

Your Rights Regarding 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

Car Stops

A person in an automobile has a lower expectation of privacy than a home. United States v. Mosley, 454 F.3d 249, 259–60 (3d Cir. 2006) (noting that “the Fourth Amendment has been repeatedly characterized by the Supreme Court as affording enhanced protection to the home, and diminished protection to vehicles,…”).

Basics

  • A Car Stop is a Seizure. Delaware v. Prouse, 440 U.S. 648, 653 (1979), Brendlin v. California, 551 U.S. 249 (U.S. 2007). A seizure is when given the totality of the circumstances a person is not free to leave a situation with law enforcement. Any passengers are also seized, for Fourth Amendment purposes, during traffic stops, and thus also have standing to raise Fourth Amendment claims based on the illegality of the stop. Brendlin v. California, 551 U.S. 249, 251 (2007).
  • Any evidence discarded before the stop, i.e., during a chase are considered not subject to 4th amendment protections. Hester v. United States, 265 U.S. 57, 58–59 (1924) (prohibition-era version of Hodari D. with moonshine whiskey rather than crack but the same result: ditch the evidence, lose the suppression claim). California v. Hodari D., 499 U.S. 621, 629 (1991) (holding that evidence abandoned during flight from attempted seizure is not suppressible even if the officer lacked reasonable suspicion for the attempted seizure).

Car Stop FAQ

Must i get out of the vehicle if asked?

YES. Unfortunately for drivers, the answer here is an unequivocal “yes,” straight from the Supreme Court: “[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” So the order to step out of the car is per se lawful; the lack of suspicion of anything beyond the traffic offense is irrelevant. Indeed, in Mimms, the case just quoted, the government conceded that there was no suspicion of any kind other than the traffic violation, and that it was simply the officer’s “practice” to order the driver out of the car whenever he made a traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977).

In short, an officer who stops you for an alleged traffic violation has the right to insist that you and your passengers get out of your car. You should do so if asked. Also, getting out of your car may make it easier for you to check road conditions, the weather, and the place the violation supposedly occurred.

If you are asked to get out of the car. It is generally wise to do so slowly and with your hands in clear view of the police.

Should I just get out of the car as soon as I am pulled over?

If you get out of the car against the officer's orders, don't be surprised to see a gun pointing at you.

Car Stop best practices

  • Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
  • Upon request, you are required to show your driver’s license, registration, and proof of insurance.
  • Both driver and passenger have a right to remain silent.
  • If you are a passenger, you can ask if you are free to leave. If the officer say yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.

Stops and Racial Profiling

Racial profiling does not give rise to a Fourth Amendment suppression claim if there was objective probable cause for the stop. If there is objective probable cause for a stop, the courts won't inquire into the officer's subjective motivation as a basis for a Fourth Amendment suppression. Whren v. United States, 517 U.S. 806 (1996).

Rules for Passengers

  • If a police officer finds contraband in a car and no one takes ownership then the police may arrest everyone in the car under the common enterprise theory. (Maryland v. Pringle).
  • When driving on a public road courts have found that all passengers can be assumed to be engaging in a common enterprise and so probable cause can extend to all passengers.
    • Example: Police stop a car because of a broken brake light. The police see a syringe in guy’s pocket and under plain view doctrine can seize it without a warrant. The driver admits it is his. The Court held that this gave the police probable cause to search passengers bag for drugs. They held that when driving a car on a public road police can assume that all passengers are engaged in a common enterprise and thus probable cause extends to all passengers.
    • Limit: the authority to search the containers of a passenger does NOT include clothing; however, after Houghton, it does include purses. It might depend on how one is wearing the purse. {Houghton}
    • Once there is Probable Cause to search a car then all passenger containers are free game. Wyo. v. Houghton, 526 U.S. 295 (U.S. 1999).

Rules of the Road (KYR)

A police officer is normally not allowed to search your vehicle. However, there are several exceptions to this. An officer who observes you trying to either hide something under the seat or throw something out the window may legally search your car. Once cops are on your rear bumper with his spotlight silhouetting your every move, they're watching for any sort of sudden movement. A sudden lowering of one or both shoulders will tip them off that you're attempting to hide something under the seat.

If you are asked to open the trunk, say “No” and state, “I do not consent to a search.” If the police open it themselves, you should continue to state, “I do not consent to a search.”

If the officer has a reasonable suspicion you are armed and dangerous, he or she can frisk you (pat you down). Similarly, if the officer reasonably suspects that you are involved in criminal activity he or she can also perform a pat down, and if police officers have probable cause – a reasonable basis or justification to believe that you or your passengers are involved in criminal activity – they can search your car and objects belonging to passengers.

Even if the officer doesn't have reasonable suspicion or probable cause, once you are stopped, a police officer may seize any illegal objects in your car that are in “plain view.” Once they see the object, such as open beer or wine bottles or drug paraphernalia, they can open the car door to reach in and get it. After that, they may come across other objects that are in plain view and shouldn't be in your car, and they can seize these, too.

Lastly, your car may also be searched if you or any occupant is arrested. Also, if you're arrested and your car is towed, the police may make an “inventory search” afterward, even if they have no reason to suspect there is anything illegal inside.

Also, the officer's good faith belief that you may be dangerous justifies a search of the passenger compartment of your car for weapons.

If the police have probable cause that it contains evidence of criminal activity they can search your car without a warrant. Carroll v. US (1925). However, you do not have to consent to a search. If an officer or immigration agent asks to look inside your car you can refuse to consent to the search. Do not sign a consent form. Refusing consent does not mean that the search is invalid, or that the police won't do it, but it will help your attorney challenge the search later.

A case called Chambers v. Marooney (1970) held that it is reasonable to conduct warrantless searches if it would have been reasonable to seize the car and obtain a warrant. The police need probable cause that the car contains evidence of criminal activity. However, courts have been deferential to the fact that cars can be moved before a warrant obtained.

The police can search the car incident to arrest as long as the arrest is not made to far from the car and the search is not to removed from the arrest in time.

Valid Car Searches

Automobile Exception

Law Enforcement Officers (LEO) do not need a warrant to search a car. They need probable cause. The Court has held since 1925 that there is an exception to the requirement for a warrant to search a car. This is because cars are mobile and could leave the jurisdiction before a warrant is procured and because people have a lesser expectation of privacy in a car.

It is reasonable under the Fourth Amendment for the police to search the car—the whole car, and everything in the car, including containers—whenever they have probable cause to believe that the car contains evidence of crime. You don’t have to arrest the person, or impound the vehicle. You just need probable cause to believe that the car contains evidence of crime. So, in any vehicle stop, the officers may search the entire car, without consent, if they develop probable cause to believe that car contains, say, drugs. California v. Acevedo, 500 U.S. 565, 580 (1991) (“The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”).

A warrant is not required so long as there is probable cause to believe that the vehicle contains contraband or evidence of a crime. Carroll v. United States (1925).

This “automobile exception” has been greatly expanded since Carroll. For example, the Court held in California v. Carney (1985) that a mobile home capable of traveling on a highway was included within the exception, and in Wyoming v. Houghton (1999), the Court held that the police may use the exception to search the personal belongings of passengers (but not the passengers themselves).

If the police have probable cause they can search your car. They can search all of it (to the point of near destruction). Carroll v. United States, 267 U.S. 132 (1925). This is commonly called the Automobile Exception. 1). If there is probable cause the police can search the entire car (assuming the probable cause extends to the area being searched). The police can also search containers in the car if there is reason to believe the item being searched for could be in the container.

Probable cause need not be related to a specific person, but rather to the car itself. For example, if you have probable cause to believe the trunk has marijuana in it then it doesn't matter who is driving. Ross

Containers

The police may search a container within a car without a warrant if they have probable cause to believe that the container itself holds contraband. California v. Acevedo, 500 U.S. 565 (1982). The scope of the search is defined by the object of the search. Whether you can conduct a warrantless search a container depends on whether the probable cause is container specific (Chadwick/Sanders) or general to the car (Ross).

Inventory Searches

“Inventory searches” are the third doctrine permitting the police to perform warrantless automobile searches. In Colorado v. Bertine (1987), the Court held that the police may thoroughly search vehicles that have been lawfully impounded for any reason. The Court explained that such inventory searches are justified to protect the owner from misappropriation, to protect the police from false claims of theft, and to prevent dangerous items from being stored on police property.

Search Incident to Arrest

The Court held in New York v. Belton (1981) that the police may automatically search an automobile's passenger compartment without a warrant after arresting an occupant of the vehicle because a criminal may hide contraband or weapons in the vehicle before the arrest. Since the Court held in Atwater v. City of Lago Vista (2001) that the police may arrest motorists for even petty traffic violations, the police now have an incentive to arrest minor traffic violators in order to perform “Belton searches” of their automobiles.

Belton has been criticized by legal scholars for allegedly failing to meet the constitutional standard of probable cause.

Belton has been distinguished by Arizona v. Gant, which restricted searches incident to arrest to circumstance where it is reasonable to believe that: 1) the arrested individual might access the vehicle at the time of the search; or 2) the arrested individual's vehicle contains evidence of the offense that led to the arrest

"Terry Frisk" of Car

An officer can ask you and your passengers to get out of the car to pat you down for weapons, and search the passenger area of the car for weapons if he has a “reasonable belief” you are dangerous.

If the cop has reasonable suspicion that something is up and they fear for their safety they can frisk the individual. Additionally, they can “frisk” the car for readily available weapons. Michigan v. Long, 463 U.S. 1032 (1983). This does not include looking to deep in anything or looking in the trunk. Can look for weapons.

Motor Homes

The “Automobile Exception” applies to motor homes. California v. Carney, 471 U.S. 386 (1985.) Although there is a distinction drawn between motor homes on the road and those being used for living. In United States v. Johns, the motor vehicle exception was applied to trucks. In United States v. Forrest it was applied to trailers pulled by trucks. United States v. Forrest applied the exception to boats and in United States v. Hill to house boats. In United States v. Nigro and United States v. Montgomery the motor vehicle exception was found to also include airplanes.

Rationale
Courts have given a few reasons for allowing warrantless searches.
  • Cars are mobile and the time it takes a police officer to go get a warrant would allow for a car to get out of the jurisdiction.
  • Courts have also said that there is a diminished expectation of privacy in car because they are heavily regulated by state and on the roads. Carney.

Federal Agents

Like regular law enforcement, The FBI can conduct a warrantless car search if they have probable cause to search the vehicle and any containers within, but only in parts of the vehicle and containers which there is probable cause to search. If you are arrested and your car is impounded law enforcement is entitled to perform a warrantless inventory search. Any contraband or evidence of a crime found may be used against you. Immigration Checkpoints

DUI Checkpoints

Sobriety checkpoints — also known as DUI checkpoints — are the most common roadblocks you might encounter. They function as a general purpose investigatory tactic where police can get a close 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 probable cause that you’re under the influence or you agree to the search. As such, you are not required to answer their questions or admit to breaking the law.

Since the Supreme Court’s ruling in Illinois v. Caballes police have more leeway to use drug-sniffing dogs in roadblock situations. 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.

Also keep in mind that police closely monitor cars approaching the roadblock. So you’re not likely to have any success trying to evade it.

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.

Drug Checkpoints (it’s 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 that state’s ACLU Chapter. Similarly, if you’re arrested as a result of a real or fake “drug checkpoint”, you must contact an attorney to explore your legal options.

Dogs

Is a dog sniff a search? Can they do that w/o Probable Cause?
K-9 sniffs are not a search for the purposes of the Fourth Amendment. If the police have a dog ready to sniff your car when they pull you over for a traffic violation, you have no basis for objecting to the sniff. And, of course, if the dog does alert to the car, that is probable cause, so the police can then search the whole car. United States v. Place, 462 U.S. 696, 707 (1983) (discussing the sui generis nature of dog sniffs).

Excessive Prolongation: K-9 sniffs around the car are not a search, BUT United States v. Jones, 269 F.3d 919, 926, 929–30 (8th Cir. 2001) (suppressing drugs found in car because traffic stop was unreasonably prolonged to await K-9 unit).

A traffic stop is a legitimate seizure of the person, for purposes of investigating the violation of the traffic law and writing up the citation. Of course if you give officer reasonable suspicion then you can wait longer. United States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988) (upholding Terry detention to await drug dog for fifty minutes when officer developed reasonable suspicion during stop based on passengers’ responses to questions about their identity and destination).

And the Fourth Amendment rule is very clear: if the police detain you after they’ve finished processing the ticket—or if they simply dawdle over the ticket processing for an unreasonable length of time—in order to get a K-9 team there, then the eventual dog sniff will be the fruit of an illegal detention, and any evidence. Illinois v. Caballes, 543 U.S. 405, 408–09 (2005).

Federal Distinctions

All advice stays the same except it is important to emphasize that 'it is most definitely a crime to lie to a federal agent'. It is often hard to tell them apart from State officials.

  • Agents, like all law enforcement officers, are trained to try to get you to talk, so remaining silent could be difficult. Stay strong. Don't fall for intimidation tactics and resist speaking without a lawyer present.
  • Even if you want to speak to the FBI about something, consult a lawyer and do not do or say anything without a lawyer present.
  • In all instances, invoke your right to silence. DO NOT TALK, EXCEPT to say “I would like a business card,” and “I would like to speak to my lawyer,” and to tell them how they can contact your lawyer. NOTE: It is a federal crime to give false statements to a federal agent.
  • If you do not have a lawyer take their card and say “I will get in contact with a lawyer and will not speak to you without a lawyer.” You can call Water Protector Legal Collective to ask for referrals, especially if you feel you are being targeted for political activity.
  • Relevant information to get from an agent is their name, contact information and agency. Take down a physical description of each agent when they leave.
  • You can film federal agents.

Know Your Rights Pro-Tips

  • Police can Lie The police can lawfully lie to you about everything but physical evidence (i.e., we found your DNA at the scene) to encourage you to talk.
  • Hard to Distinguish Federal from Local/State Police It can be a crime for you to lie to a police officer and is very much a crime to lie to a federal officer. It is safest not to speak to the police without a lawyer present. (No matter how nice they are).
  • Do Not Resist Do not struggle or physically touch the police, or you risk arrest. If you physically resist an arrest, or run to avoid arrest, you risk additional criminal charges.
  • Don't Escalate Stay calm in your words, body language, and emotions. It is not necessarily unlawful to be impolite, but it can lead to increased charges and violence.
  • No Sudden Moves Always keep your hands in full view of the police—do not reach into any pockets unless directed by the police, and then move slowly. It can also be a really good idea to say out loud what you are doing as you do it, for example: “I am going to reach into my pocket now to get my ID.

What is Probable Cause? vs. What is Reasonable Suspicion?

  • Reasonable suspicion: Reasonable suspicion means that the officer has sufficient knowledge to believe that criminal activity is at hand. And that means that an officer has to be able to articulate the reasons that give rise to his belief that something is going on that warrants their intrusion. Reasonable suspicion is a lower standard than probable cause, and is used to justify less significant intrusions into people’s liberty and space, such as roadside searches, brief questioning, and stop and frisk.
  • Probable Cause: A common definition is "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true". It is a term that is difficult to reduce to any concrete test. Essentially the police must have clear facts to support their opinion. They must have more than a hunch. Or in the case of a search, the officer would need to have knowledge that justified their belief that they would find whatever they were looking for in the place they wanted to look. Probable cause is not a feeling or a hunch.

Degrees of Police Interaction

There are different types of stops and your rights differ according to what type of encounter you are having with the police. New

  • Voluntary: The police approach a person and ask questions. There is no basis to believe there is anything out of the ordinary. You can ask, Am I being detained?; Am I free to go? You do not have to answer any questions or give identification. The police can inquire, but a person does not have to stay.
  • Detention: Stop (& Frisk): The police must have a reasonable suspicion that something criminal is occurring. “There must exist a founded suspicion that criminal activity is afoot.” Permits a somewhat greater intrusion. Officer can interfere with a citizen to the extent necessary to gain explanatory information, but short of forcible seizure.
    • Here the police can question because they have reasonable suspicion something is up. If they believe they may be in danger they can pat the person down on the outside of their clothing, or perform a cursory search of the passenger section of the vehicle, ostensibly to assure their is no weapon that may be a threat to their safety.
    • You can ask, Am I being detained?; Am I free to go? and state I wish to remain silent.
  • Arrest: Requires probable cause to believe that the person to be arrested has committed a crime. Police may arrest (take into custody) a person when they have probable cause to believe that person has committed a crime, or has committed an offense in their presence. You should exert your right to remain silent by stating "I wish to remain silent. I want a lawyer."

Arrest Warrants

An arrest warrant is a warrant issued by a judge on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of one's property.

What to do if you are approached with an Arrest Warrant?

  • If the police knock on your door and say they have an arrest warrant, you reply "if you have a warrant slip it under the door." Read it and determine it is a warrant for your arrest or for someone else.
    • If it is for you or someone inside, tell them you are coming out. It is often best to walk outside, locking the door behind you, and give yourself up.
      • Not doing that can result in forced entry, a home search, and additional charges. If you have a lawyer call them.
    • If the arrest warrant is for someone not inside the home, state that the person is not there or does not live there and ask for the police to slip a business card under the door. Do not say or do anything else.

US Border Checkpoints

Be aware that Customs and Border Protection (CBP) agents — which are part of the Dept. of Homeland Security (DHS) — are permitted to search you and your belongings at the U.S. border without probable cause or a search warrant. So anytime you cross the border, you consent to a search.

CBP may generally stop and search the property of anyone entering or exiting the U.S. If agents have reasonable suspicion to believe you’re concealing contraband, they may search your body using pat-down, strip, body cavity, or involuntary x-ray searches.

Searches of Electronic Devices

The Ninth Circuit Court of Appeals recently ruled that Homeland Security border agents must have reasonable suspicion before they can legally conduct a forensics search of laptops, mobile phones, camera memory cards, and other electronic devices.

Unfortunately, this limited ruling still permits agents to conduct a “quick look” laptop search, such as asking you to turn on your laptop to peek at open windows. So always password protect your files before crossing the border. And, of course, never voluntarily give agents your password.

Checkpoints Near the Border

Be aware that DHS agents have recently set up constitutionally-questionable “security checkpoints” up to 100 miles inside U.S. territory. If you should drive into one of these roadblocks, you are not required to answer the agent’s questions (usually starting with “Are you a United States citizen?”). Nor are you required to consent to any searches.

Visit www.checkpointusa.org/blog to learn more about this program and check out the video below. By actively “flexing” their rights, these brave citizens expose the techniques DHS agents (and police in general) use to trick and intimidate citizens into compliance. Also take note of the practical necessity of flexing your rights repeatedly.

TSA Checkpoints

Be aware that Transportation Security Agency (TSA) agents — which are part of the Dept. of Homeland Security (DHS) — are permitted to search you and your belongings without probable cause or a search warrant anytime you pass through a TSA airport security zone.

The ACLU also keeps a Know Your Rights When Traveling page. It’s got handy tips for dealing with “spot interviews” and opting out of nude body scanners.

TSA’s Mysterious ID Requirement

Many folks are concerned about the TSA’s requirement that passengers show a photo identification before passing through security. Of particular concern, is TSA’s persistent refusal to release the text of the law that it uses to justify that requirement.


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