Know Your 4th Amendment Rights

Kristeen Irigoyen-Hernandez aka Lady2Soothe

4th Amendment

Any time an emergency vehicle stops you, you’re being detained. If police flag you down, pull over immediately, turn off your car, and place your hands on the wheel. If the officer asks for your license, registration and insurance give it to him/her. If you’re ordered to exit the vehicle, do so immediately. But if the officer tries to use your traffic violation as a basis for a further investigation, minor traffic violations (e.g. speeding, broken tail-light or expired registration) these ARE NOT CONSIDERED PROBABLE CAUSE.

Most police are able to exploit a major loophole to the probable cause search requirement by tricking you into giving up your constitutional rights. REMAIN SILENT: What you don’t say can’t hurt you but anything you do say can and will be used against you. Don’t announce you know your rights. They consider it a challenge.

Police attempt to make you admit to breaking a law “You don’t mind if I have a look in your car?” is the LEGAL LOOPHOLE the officer wants to snare you with; it’ll sound like a command, but it’s only a suggestion. If you decline they’ll say “What do you have to hide?” Don’t fall for this manipulation trick. If necessary, repeat your refusal. By using psychological intimidation techniques and demoralizing scare tactics they’re obligating YOU to prove your innocence. Remember it’s their job to prove you’re guilty; it’s NOT your job to prove you’re innocent.

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Most avoidable police searches don’t occur because police have probable cause. They occur because people are hoodwinked and intimidated into consenting to search REQUESTS. The 4th Amendment protects your RIGHT TO REFUSE, but it doesn’t require police to tell you about your right to refuse. Consenting to searches AUTOMATICALLY makes the search legal in the eyes of the law. When you’re pulled over, don’t try to figure out whether or not the officer has probable cause. YOU ALWAYS HAVE THE RIGHT TO REFUSE SEARCHES and you can say “Officer, I know you’re just doing your job, but I don’t consent to searches.”

“STOP AND IDENTIFY” statutes are statutory laws in the US authorizing police to legally obtain the identification of someone whom they REASONABLY suspect has committed a crime. If the person is NOT REASONABLY SUSPECTED of committing a crime, they are NOT REQUIRED TO PROVIDE IDENTIFICATION, even in states with stop and identify statutes.

The FOURTH AMENDMENT (Amendment IV) to the US CONSTITUTION is the section of the BILL OF RIGHTS PROHIBITING UNREASONABLE SEARCHES AND SEIZURES and REQUIRES any warrant to be JUDICIALLY SANCTIONED and SUPPORTED BY PROBABLE CAUSE.

Unless you’re detained or arrested, you may terminate the encounter anytime. But don’t wait for the officer to dismiss you. Ask “Am I free to go.” If the officer threatens to call in a K-9 unit, ask “Officer, are you detaining me, or am I free to go?”

Not only can this line can help withdraw you from an encounter, it also deflects any of the officer’s probing questions or threats. If the officer says; “If you cooperate with me, everything will go easy for you.” Respond by stating “I don’t consent to any searches” or “Am I free to go?” If you’re let go, leave immediately. If the officer’s answer is unclear, or if you’re asked additional questions, repeat “Officer am I free to go?”

If you are not free to go, you are officially detained as they might have some reason to suspect you of a crime, and you may be arrested. In such a situation upon questioning say “I chose to remain silent. I would like to see an attorney.” NEVER rely on the police to inform you of your right to remain silent and/or secure a lawyer. Upon on further questioning if necessary, but say nothing else. REMEMBER ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU.

Miranda Warning

CONSENSUAL
Police may approach a person and ask questions. The objective may simply be a friendly conversation; however, the police also may SUSPECT INVOLVEMENT in a crime, but lack “SPECIFIC AND ARTICULABLE FACTS”.

REASONABLE SUSPICION
Police may BRIEFLY detain a person if they have reasonable suspicion the person has committed, is committing, or is about to commit a crime or reasonably suspect may be armed and dangerous.

ARREST
A detention requires only that police have REASONABLE SUSPICION a person is involved in criminal activity. However, to make an arrest, an officer MUST HAVE PROBABLE CAUSE to believe the person has committed a crime.

Silent

TERRY STOP
A brief detention of a person by police on REASONABLE suspicion of involvement in criminal activity but SHORT OF PROBABLE CAUSE TO ARREST. A person detained can be questioned but is “NOT OBLIGED” to answer, REFUSAL TO ANSWER FURNISHES NO BASIS FOR AN ARREST.

The Supreme Court of the United States states police may briefly detain a person they reasonably suspect is involved in criminal activity; the Court also held police may do a LIMITED search of the suspect’s outer garments for weapons IF they have a REASONABLE and ARTICULABLE (legal standard) SUSPICION the person detained MAY be “ARMED AND DANGEROUS”.

To have reasonable suspicion to justify a stop, POLICE MUST BE ABLE TO POINT TO “specific and articulable facts” indicating a crime has been, is being, or is about to be committed.

The search of suspect’s outer garments, also known as a pat-down, must be LIMITED to what is necessary to discover weapons; however, pursuant to the “PLAIN VIEW” doctrine, police may seize contraband discovered in the course of a frisk, but ONLY if the contraband’s identity is immediately apparent.

TRAFFIC STOPS
A traffic stop is, for practical purposes, a Terry Stop; for the duration of a stop, driver and passengers are “seized” within the meaning of the Fourth Amendment. The U.S. Supreme Court has held drivers and passengers may be ordered out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.

Drivers and passengers may be searched for weapons upon REASONABLE SUSPICION they are armed and dangerous. If police reasonably suspect the driver or any of the occupants may be dangerous or the vehicle may contain a weapon to which an occupant may gain access, police may perform a protective search of the passenger compartment without a warrant, probable cause, or the driver’s consent. Police may not search the vehicle unless under the “PLAIN VIEW” doctrine to seize and use as evidence weapons or contraband visible from outside the vehicle.

“LET ME SEE YOUR ID.”
In the United States there’s no law requiring you to carry a government ID. But in 24 states police may require you to identify yourself if they have reasonable suspicion that you’re involved in criminal activity.

Police DO NOT have to Inform You of Your Charges
It is a common misapprehension that police officers are required to tell you why you’re being arrested or what offense you’ve committed when you’re being arrested. However ALL arrests without a warrant must be supported by PROBABLE CAUSE, no matter which state you’re in. So every legal arrest must be based on probable cause that a suspect has committed a crime. Still, there is no general requirement that, at the time of arrest, an officer has to share this probable cause assessment with the arrestee. A person arrested must be given a probable cause hearing, ordinarily within 48 hours of their arrest.

REMEMBER: You have the right to remain silent, ANYTHING and EVERYTHING you say or do will be exaggerated, misquoted, twisted and used against you. Click Here to read Pleading the Fifth and Understanding Your Miranda Rights

YOUR RIGHT TO TAKE VIDEOS AND PHOTOGRAPHS
June 2014, the US Supreme Court held when in outdoor public spaces where you are legally present, you have the right to capture any image in plain view. This includes pictures and videos of federal buildings, transportation facilities (including airports), AND that law enforcement CANNOT search a cellphone WITHOUT a warrant. Third Circuit Federal Court Judge Thomas Ambro “Officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves.”

VIDEOTAPING and PHOTOGRAPHY

1. ~ DON’T POINT YOUR CAMERA/PHONE LIKE A GUN

2. ~ HOLD YOUR CAMERA/PHONE SIDEWAYS (LANDSCAPE VIEW)

3. ~ HOLD YOUR CAMERA/PHONE STILL and KEEP IT ON THE SUBJECTS. DO NOT try to capture what other’s are doing.

4. ~ IF YOU’RE INSIDE TURN YOUR TV or MUSIC OFF

5. ~ DON’T SHARE YOUR VIDEO WITH POLICE

6. ~ USE A LIVE STREAMING APP IF POSSIBLE as officers will often lie in order seize your camera/phone without a warrant by stating witnesses are allowed to leave at any time but are not allowed to take their camera/phone as the camera/phone may contain evidence.

7. ~ PROTECT YOUR PASS-CODE which is essential for preserving video in case police illegally destroy or confiscate your camera/phone

STAND BACK
If you’re approaching the scene of an investigation or an accident, police will order you to move back. Depending on the circumstances, you might become involved in an intense negotiation to determine the “appropriate” distance you need to stand back to avoid “interfering”. If you feel you’re already standing at a reasonable distance, say something to the effect of; “Officer, I have a right to be here. I’m filming for documentation purposes and not interfering with your work.” It’s up to you to decide how far back you’re willing to stand in order to avoid arrest.

“STOP RECORDING ME. IT’S AGAINST THE LAW”
Respond “Officer, with all due respect, state law only requires permission from one party in a conversation. I don’t need your permission to record so long as I’m not interfering with your work.” Or “Officer, I’m familiar with the law, and the courts have ruled it doesn’t apply to recording on-duty police.”

“WHAT ARE YOU DOING?”
If a police officer says “What are you doing?” say “Officer, I’m not interfering. I’m asserting my First Amendment rights. You’re being documented and recorded offsite” while remaining calm. They might follow up by asking, “Who do you work for?”Tell them you’re an independent filmmaker or a citizen journalist with a website/blog/YouTube show. Whatever you say, don’t lie—but don’t let police trick you into thinking the First Amendment only applies to mainstream media journalists. It doesn’t.

The law in 38 states plainly allows citizens to record police, as long as you don’t physically interfere with their work. Twelve states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—require the consent of all parties for you to record a CONVERSATION. All but 2 —Massachusetts and Illinois—have an “expectation of privacy provision” to their all-party laws in which courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police.

PLEASE NOTE: A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function, or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act.

PLEASE NOTE: Wording and interpretation by state, county or city may vary and a substantial allegation furnishing identity at the time of a stop would give police a link in the chain of evidence needed to convict the individual of a separate offense.

VIDEOTAPING ON FEDERAL PROPERTY
If protective service officers harass you while filming on federal property, you may remind them of a recently issued directive informing them that there’s NO PROHIBITION AGAINST PUBLIC PHOTOGRAPHY AT FEDERAL BUILDINGS.
HOMELAND SECURITY BULLETIN ON PHOTOGRAPHERS AND FEDERAL BUILDINGS
http://www.photoattorney.com/wp-content/uploads/2011/02/Photographing-the-Exterior-of-Federal-Buildings.pdf

Click here to print a Foldable Wallet Card
“WHAT TO DO IF YOU’RE STOPPED BY POLICE” http://www.nyclu.org/files/publications/Palmcd_2014_police_nyclu.pdf

Fold Card