Know Your Rights: Police Encounters

Several weeks ago, Jesse Bright, an Uber driver and criminal defense attorney, was pulled over by a Wilmington sheriff’s deputy. Mr Bright was completing a round trip for Uber, which he does occasionally to help pay off his law school loans. Immediately upon being pulled over, Mr Bright began recording his encounter with Sgt. Kenneth Becker. Sgt. Becker told him to turn off the phone. The following dialogue is the Washington Post transcript of Mr Bright’s video:

“Hey, bud, turn that off, okay?” Becker said.
“No, I’ll keep recording, thank you,” Bright responded. “It’s my right.”
“Don’t record me,” the police sergeant said. “You got me?”
“Look,” Bright said, “you’re a police officer on duty. I can record you.”
“Be careful because there is a new law,” Becker said. “Turn it off or I’ll take you to jail.”
“For recording you?” the video shows Bright asking Becker. “What is the law?”
Bright continued to record, saying, “I know my rights.”
“I hope so,” said Becker, the police sergeant. “I know what the law is.”
“I know the law,” Bright said. “I’m an attorney, so I would hope I know what the law is.”

While police officers often use intimidation tactics in order to get you to comply with their wishes, there are steps you can take to protect yourself from infringement of your constitutional rights. The most important thing you can do is to know just exactly what those rights are; do you really have to give a cop your identification if he asks for it? Can you film cops in public? I’ll do my best to give you a crash-course here.

Can I film police officers?

Mostly. Thirty eight states allow citizens to record police officers under all circumstances. However, twelve states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington) require the consent of both parties before recording a conversation. While there is officially a “two party” requirement for recording conversations, a 2015 1st Circuit case affirmed the right of citizens to record police as a fundamental constitutional right protected by the First Amendment. While filming police is almost always legal, be aware that cops may try to confiscate your camera or force you to turn it off. They may also charge you with a vague misdemeanor like obstruction of justice or disorderly conduct. Be calm, be polite, and know the law in your own state.

What do I do if a police officer wants to search me/my car?

While a police officer might try to convince you or intimidate you into consenting to a search, you are under no legal obligation to do so. Police almost always ask “Do you mind if I take a look through your car?”, and they ask that for a reason. While it may seem like your own desires for privacy are trumped by the police, you do not have to consent to a search. However, the Supreme Court has ruled that if a police officer can see or smell contraband from outside the car, there is probable cause and the police can search your car without your consent.

Police officers almost never tell you that you have the right to say no, and that’s why so many people buckle under the stress of a police encounter. If they do not have probable cause or a warrant, do not consent to a search. Civil asset forfeiture is an ongoing issue with the American law enforcement community; if they believe you are carrying cash to purchase drugs, for example, they can take your cash without a trial. It is extremely difficult to retrieve stolen assets when police claim civil asset forfeiture.

Do I have to answer police officer’s questions?

While it would certainly make your day easier to cooperate fully with law enforcement, you have no legal obligation to do so. You legally have the right to remain silent. When an officer begins asking you probing questions, make it clear that you are invoking your right to remain silent and wish to speak to a lawyer.

One issue that many college students face is police cracking down on underage drinking. If you are walking (NOT driving), and are stopped and asked to take a breathalyzer test, you can refuse. However, it is important to note that the police at that point are legally allowed to bring you in, get a warrant, and perform a forced blood test. It is highly unlikely that they will do that for a charge as inconsequential as underage drinking, but it is possible.

 

It is important to remember that not cooperating with the police will most likely make your day a little bit harder. However, it is also important to remember that the primary tactic used by police is intimidation. If you keep that in mind, and know your rights, you and your property will be much safer from intimidating, and occasionally illegal, police tactics.

 

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