Know Your Rights !

[ from copwatch Report • Spring 1995, pgs. 6 & 7 ]

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How many of us know what our legal rights are when a cop stops us on the street, or when he or she tells us he or she wants to search us?  We need not only to know our rights, we also need to know how to assert them in a real situation.  And we need to actively demand our rights over and over again, if we hope to have them respected, given that many officers are ready and willing to ignore them. 

This is a short introduction to a complex legal subject.  We at Copwatch will conduct full training for your community group or high school class - call us at (510) 548-0425 [ http://www.berkeleycopwatch.org/ ] to set one up. 

Street Guidelines

• If the police stop you or a friend, or if you're watching the police stop someone you don't know, do what you can to calm the situation down.  Officers often feel a need to be in control. If they get too agitated, you or someone you know could end up hurt, in jail, or worse.  Keep your hands visible at all times.  If you have to go into your pockets, tell the cop, I'm going into my pocket now to get my ID.  Don't make any sudden moves, don't move behind an officer, and walk instead of running whenever possible.  Speak slowly, calmly, and loudly, so any witnesses can hear your words.  Be polite but insistent, too. 

• Write down all the details of any incident involving the police immediately afterwards.  You may think you'll never forget what happened, but unpleasant memories and important details sometimes fade fast.  Always get the cops' names and badge numbers, as well as car numbers and the name of their police department.  Take photos of any injuries and go to a doctor to get a medical report on them. 

• Don't voluntarily come into physical contact with a police officer.  In fact, if you so much as touch a cop, or their uniform or equipment, even accidentally, you can legally be charged with assault on a police officer.  That's often charged as a violent felony, which is a strike if you're convicted.  Also, police become very angry when they meet resistance, and they know that if they use their weapons, the system will back them up, not you.  Physically resisting an arrest will mean much more force from the cops and more charges in court. 

• If you see the police stopping someone, stop and watch, and try and get other people to stop, too.  Let the person who's being stopped know you're willing to be a witness.  Get the names and numbers of other witnesses. 

• If the cops search you or detain you illegally, tell both the cops and any witnesses that it is against your consent, and repeat that over and over again.  But you may not want to tell the cops exactly what they are doing wrong, because they could just find a more legal way to search or detain you.  Instead, just refuse your consent, take note of what happens, and if you get arrested, tell your lawyer later what the police did that was illegal.  The cops' mistakes could invalidate the charges against you, and it will probably help more to talk a bout it in court than on the street. 
If you see someone consenting to a search or a stop by the police, let them know that they have the right to refuse consent. 

• If you see severe misconduct, such as the police beating someone, you can call 911.  The 911 dispatchers must record your call, and it could be useful evidence later. 

Your Rights And How To Use Them

Law: You have the right to watch the police when they stop someone. 

Reality: The police get very nervous when people watch their actions.  They may threaten you with arrest for interfering ( [California] Penal Code section 148 ).  Tell them politely but firmly that you don't want to interfere, but you have a right to observe.  Step back if necessary. 

Law: Police must identify themselves to the public.  Officers must wear a nameplate or badge number while on duty (PC 830.10). 

Reality: Those tiny metal plates are hard to read, and cops will often refuse to give you their name and number.  Ask, insistently until you get it.  If you are being ticketed, one of the officers' names will be on the ticket;  If you are arrested, most of them should be in the police report which you can get from your lawyer or public defender. 

Law: There are three ways you can be stopped by police.  In a casual encounter, the cop has no legal right to talk to you, but is inviting you to talk.  A detention is when the police have reasonable suspicion: specific reasons (not a hunch, not a generalization) to believe that you committed a specific crime, or to believe that you're about to commit a specific crime.  Finally, the police can arrest you when they have a probable cause to believe that you committed a crime.  This is more than a reasonable suspicion, but less than complete proof.  They don't need to have a warrant already to arrest you. 

If you were just a witness to a crime, the cops can't legally detain you. 

Reality: Stay away from consensual encounters.  If a cop starts talking to you, for whatever reason, ask "Am I free to go?"  If yes, don't talk, just leave. 

If not, you're being detained.  Ask, Can you explain why you're detaining me? and memorize the exact words of the cop's response — this could be helpful in court if you're arrested.  If there are any witnesses, repeat the cop's response (Oh, so I'm being detained for...?) so that they can hear it. 

Law: You have the right to remain silent. 

Reality: Even if the police don't read you your rights, they are in effect.  People often talk to the cops because they don't know they don't have to.  Although it can be difficult to refuse to answer any questions, it really is the best idea.  Tell the police that you don't have anything to hide, but that you've been told not to answer any questions without your lawyer present. 

Don't try to talk your way out of anything.  Even the truth can be manipulated and used against you.  If you get confused and start talking, you can stop and assert your right to silence anytime.  The police may tempt you by saying that if you just answer a certain question, they will let you go, but this is often just a trick. 

When you don't answer questions, the police may threaten to arrest you for refusing to cooperate with their investigation.  This threat is illegal. 

Law: You don't have to show ID to the police, although you do have to show your driver's license if you're pulled over while driving. 

Reality: In a casual encounter, don't even give the police your name — just walk away.  If you are being detained, you may want to give your name, but nothing more;  the police have a right to take you in until you've been identified.  If you're being ticketed, you should probably show your ID.  If you're being arrested and taken in, you may have to show your ID to be released. 

If your citizenship is not secure (such as you're an undocumented immigrant), don't even give your name. 

Law: When the police get your ID, they can run a warrant check.  This basically checks if you have tickets you haven't paid for a long time, or charges against you which you may not be aware of.  If you have a warrant, they will arrest you. 

Reality: The computer system, or the cops, may make a mistake and say you have a warrant when you don't.  Keep copies at home of all your tickets and of the checks you paid the tickets with. 

Law: If the cops arrest you for an infraction (such as jaywalking or possession of less than an ounce of marijuana), they should ticket you and let you go.  You may get a pat down for weapons, but you should not be searched.  If you don't have ID, the police may take you to the station to verify your identity. 

Reality: Whether you are charged with a misdemeanor or felony depends on how the cops feel about you, not on what you've done.  It is common for police to 'over-book' people by adding on extra charges like resisting arrest or blocking the sidewalk. 

Searches

Law: When you are detained, the police are allowed to do a pat-down search of your outer clothes for weapons. 

Reality: The cops may claim they feel a weapon when they don't, and use this as an excuse to go into your pockets.  This is an illegal search (see  If the cops search you illegally  above). 

Law: Other than a pat-down search, the police are only legally allowed to search you if you have been arrested, if they have a search warrant, or if you have a search clause as a condition of your probation or parole.  This is true whether they're trying to search you or your bags or possessions.  The police can also search you if you consent to a search. 

Reality: Never consent to a search.  Silence can be consent, so whenever the cops start to searching anything, say repeatedly, to them and to bystanders, that I don't consent to this search.  Sometimes the police try to trick you into consenting;  sometimes they just go ahead and search anyway.  If you're arrested after an illegal search, some of your charges could be dismissed. 

A great many searches happen when people give consent without realizing it.  The cops may ask you for your consent in a way that doesn't sound like a question, such as, I want to look in that bag.  Say no anyway. 

Police may threaten to arrest you if you don't let them search.  This is illegal. 

Law: The police can search your car if you're in it when they arrest you, or if they have probable cause to believe there is evidence of a crime inside. 

Reality: The cops may ask you for keys to the trunk or glove compartment.  If you're not under arrest, tell them, No.  If they threaten to break it open, say, Since you say you will break the car open, I will give you the keys, but I do not consent to this search.  Again, make sure witnesses can hear you. 

Law: Without your consent, police can only enter your home if they have a search warrant, if they're arresting you, or if they have probable cause to believe there is evidence of a crime or an emergency in your house (for example, someone just called 911 with your address).  The landlord or manager where you live cannot give legal permission for a police search. 

If you walk into your house when you're about to be arrested, they can search every room you walk through. 

Reality: If the police come to your door, step outside and lock the door behind you.  If they have a search warrant, read it:  check that the address is correct and the date is within the last several weeks.  If they ask for consent to enter (Mind if we come in? or We need to come in, ok?), block the doorway with your body and say you'd prefer to talk outside.  If they say they must enter and will break the door down, open the door but repeat that you don't consent.  Follow the cops if they search, to see if they try to plant anything. 

Text by Sam Davis.  Artwork by Lenore A. and Sam Davis.  [Their] [s]pecial thanks [goes] to Katya Komisanuk of Collective Legal Services for her assistance. 

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