Thursday, July 30, 2015

what do i have to say to a cop?

the first time i ever got pulled over by a police officer there were drugs in my car. i was driving a shitty 1988 ford escort hatchback with a busted taillight south on green bay road in north evanston late on a weeknight, 19 years old and mostly ignorant to my rights as a united states citizen. the car was illegally registered and willfully uninsured and my driver's license was taped the fuck together and i'm not entirely sure how i charmed my way out of going to jail that evening. the prescription bottles and maybe some mushrooms were shoved in my backpack behind the passenger seat and i could feel them radiating incriminating heat up my back and neck as dude stood at my window asking if i knew that my taillight was out. thankfully he let me go with a warning because, and i'm not even fucking kidding, i worked in a bakery at the time and he recognized me from behind the counter.

when i watched the dash cam video of sandra bland's arrest the only thought bouncing around my head louder than the sound of my own heart breaking inside my chest was "what would i have done if that had been me?" would i have gotten out of the car? tried to make a phone call? put down my cheese sandwich!? (i don't smoke, and i'm incredibly realistic in my hypothetical situations.) it struck me how loudly and clearly she was narrating the cop's actions as they moved off camera. would i ever have thought to do that? it's terrifying to realize just how much i don't know about how i can/cannot protect myself against police. so i hollered at my lawyer kaitlin jackson and asked her to answer some basic questions to give all of us a better idea of how to best take care of ourselves when dealing with law enforcement. and i know i usually keep it light (albeit hate-filled) around here, but this shit has got me vexed. i mean, samuel dubose had his head blown off over a missing front tag? WHAT THE FUCK IS THIS LIFE. so i need to chill on these jokes for a minute and use what i have to do what i can.

BIG GIANT FLASHING NEON-LIT DISCLAIMER: this is really an abridged cheat sheet for encounters with the police that has been painted with really broad strokes. reading this doesn't make you a legal expert; pleeeeeease use this information to protect your rights and NOT to argue with the cops about the law. because lawyering at the cops is never wise, and even if it were you'd need a lot more information than provided here to do that well. also keep in mind that laws vary from state to state, every situation is different, and this doesn't substitute for advice from your lawyer. last thing you want to do is be in court talking about "well sam said..." i mean, come on. i completed, like, three semesters of community college and still eat diet hot pockets as my real dinner sometimes. i love you, be safe.

do you have to let the police search you if they ask to?
legal answer Hard no. You NEVER have to give the police permission to search you, your car, or your house. They cannot arrest you because you didn’t give them permission to search. BUT there are times when they can search you without your permission. For example, if an officer has "reasonable suspicion" that you might be armed he can pat you down. You never have the right to refuse a pat down. Additionally, if an officer has probable cause to search you they can search without your permission. Or, if they have a warrant, they can search without your permission.

practical answer Most of the time you get to decide whether an officer can search you, but occasionally it isn’t your call. Luckily, you don’t need to be able to tell the difference in the moment. You only need to know two things: 1 ALWAYS respond to requests to search by saying “You do not have my consent to search.” As long as you do that, you’ve preserved your rights, and a judge will decide later if the search was legal. 2 NEVER physically interfere with a police officer who decides to search you.

one other note:
People often consent to searches because they don’t think there is any contraband an officer could find. This bites a lot of people in the foot. There could be something in your car or house that someone else put there that you don’t know about. You also might have something that you don’t realize is illegal. For example, some states have rules about what types of pocket knives are legal and, if you unknowingly have the wrong kind in your toolbox, you could get a weapons charge. Or maybe you carry your spouse’s prescription medicine in your purse—that can easily turn into a controlled substances charge. The moral of the story is memorize the phrase “You do not have my consent to search” and then USE IT.

do you have to answer questions from the police?

legal answer If you are on the street Generally no, but in some states you do have to give identifying information like your name and birth date if you are asked. Otherwise you do not have to answer questions—that includes questions about your citizenship status. If you are in a car You have to show your license, insurance and proof of registration. Otherwise, you do not have to answer questions. 

practical answer It is almost never in your best interest to answer questions without speaking to a lawyer first. It’s much easier to talk yourself into trouble than it is to talk yourself out of it (overconfidence is your worst enemy). Your two safest options are to 1 end the encounter, or if you can't do that, 2 get a lawyer. A good way to find out whether you can end the encounter is to calmly ask: Am I free to leave? If the answer is yes, great. If the answer is no, calmly tell the officer you don't want to speak to them without a lawyer. And then make good on your promise and don't speak.
two other notes
 1 It's rarely wise to run from the police. Even if you aren't doing anything illegal, running has the potential to escalate the situation. 2 If you are stopped in a car, keep your hands where the officer can see them for the same reason, to avoid escalation.

do you have to blow into a breathalyzer/do field sobriety tests?
legal answer No. BUT the police can use your refusal to blow into a breathalyzer and/or do field sobriety tests as evidence against you. In other words, if you are charged with driving under the influence, a prosecutor can argue to a jury that you refused because you knew you were intoxicated and would have failed. Additionally, in some states the DMV will automatically suspend your license for refusal to blow.

practical answer Does that mean you should always blow? No it doesn’t. It means you have a decision to make. If you haven’t been drinking it’s in your best interest to blow into the machine. But, if you think there is any chance you will fail the breathalyzer or field sobriety tests, it’s probably in your best interest to refuse. Here’s why: if you are likely to fail, the jig is up. You’ve been caught. At this point the best thing you can do is stop giving the police more evidence to use against you. Blowing in the machine and doing field sobriety tests that you are likely to fail can only make you look guiltier.

one note Most field sobriety tests are based on balance. If you have leg or knee issues, weight issues, are wearing high heels, are advanced in age or have any disability that causes you to struggle with balance, you may fail these regardless of whether you are sober or not. If any of those apply to you, make clear to the officer that you are refusing field sobriety tests because you struggle with balance, and then don’t do them.

are you allowed to record the police?
legal and practical answer Yes. If the police approach you and ask why you are filming, you can remain silent; that is your right. The ACLU has a great set of apps called Mobile Justice (there are different ones for different states so make sure you download the right one). If you record police encounters using that app, they are automatically uploaded to an ACLU server so that even if the police take your phone, the video is preserved.


what are your rights in an interrogation?
legal answer You do not have to answer questions during an interrogation. You have the right to an attorney, and the right to remain silent. If you are being interrogated, and tell the police “I want to remain silent and I want a lawyer,” they must stop questioning you.

practical answer Police are well trained in the art of getting incriminating statements. You are not trained in the art of resisting their tactics. Do not overestimate your ability to talk yourself out of a bad situation. I repeat: do not think you can talk yourself out of a bad situation. DO NOT assume you can’t talk yourself into trouble just because you’re innocent.

three notes 1 Police are allowed to lie to you. They can, and often do, tell people untrue things designed to get the person to make an incriminating statement. Don’t be tricked into responding. 2 People get convicted of crimes all the time based primarily or solely on their own statements. For real, for real. Don’t be that guy. 3 Just being quiet isn’t enough to invoke your right to remain silent. You need to say something along the lines of “I don’t want to talk to you” or “I want to remain silent.”

what's the deal with miranda rights anyway?

legal and practical answer Miranda is the warning you hear cops read on Law and Order when they arrest people. You have two Miranda rights 1 the right to remain silent and 2 the right to an attorney (whether or not you can afford one). When the police read those rights, most people waive them. Meaning they decide to go ahead and speak to the police without an attorney. Sometimes because they are confused, but more often because they are intimidated and think they have to talk to the police. But now that you have read this, you know better. Use your Miranda rights, and silent treatment the police (after giving identifying info) as hard as you’ve ever silent treatment-ed anyone.

so i know i am supposed to be "cooperative" with police, but what does that really mean?

It’s always best not to escalate a situation. Be calm, polite and respectful. Don’t threaten or yell at police. However, being cooperative does not mean answering officer’s questions (other than requests for identifying info) or allowing them to search you. Remember that you are on different teams. If you’ve ever played sports you know that being a cooperative player doesn’t mean scoring goals against yourself for the other team. Often people imagine they are helping themselves by being cooperative, when in truth they are just assisting an officer who is building a case against them. This is true even if you are innocent. Don’t risk it. Saying “You can’t search me,” “I don’t want to talk to you,” and “I want a lawyer” are the best things you can do for yourself. Once a lawyer gets on the scene they can help you figure out the next best move.

note Don’t be tricked by statements like “if you answer a few questions or just let me look in your trunk I’ll let you go…” See above: officers do not have to tell you the truth.


keep your heads up, champions. be cool out there.