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Police Encounters -- Know your rights!

Citizens Oversight (2011-10-06) The National Lawyers Guild

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More Info: Police Dept Oversight

From Occupy San Diego's partner attorneys (of The National Lawyers Guild):

Know Your Rights...and Use Them!

3 basic types of public police encounters:

  1. Conversation -
    • No obligation to stay.
    • No obligation to speak.
    • "Am I free to go?"
      • If the cop says yes or doesn’t say anything, LEAVE.
      • If the cop/other govt. agent says you are not free to leave, ask why you are being detained.
      • Don't argue with them, but remember their answer for later.
  2. Detention
    • Obligation to stay
    • No obligation to speak.
    • Only for a temporary period of time.
    • The officer may perform a stop and frisk, also known as a Terry stop. They will feel the outside of your clothes and should not reach into pockets unless they feel a weapon.
    • Say: "I do not consent to a search."
      • All searches without a warrant are presumptively illegal (meaning the officer will have to show in their police report or in court that they had probable cause to search without a warrant), so say the magic words: I do not consent to a search.
      • Say this whenever the police conduct a search on you or any of your belongings, including your home or car.
      • The justification for a stop and frisk is lower than probable cause; it is only a reasonable suspicion that the suspect is armed and dangerous. Still, do not consent to a search.
  3. Arrest.
    • Obligation to stay.
    • No obligation to speak.
    • Officer may or may not read Miranda warnings; they don’t have to read them when they arrest a suspect – only before they conduct a “custodial interrogation", although we should never answer their questions no matter how formal or informal the setting.
    • Longer period of time than a detention.
    • Cop may perform a search more intrusive than a Terry stop. You always have the right to withhold consent from a warrantless search.
    • You may be taken to jail where you will either be booked and released or booked into jail for a maximum of 3 court days. These do not include weekends, federal holidays, or court furlough days. If the prosecutor decides to file a criminal complaint, you will be arraigned after a maximum of three days in jail.
    • Arraignment is when you plead guilty, no contest, or not guilty in court. Arraignment will most likely be the first time you meet your court-appointed public defender.

Notice that in all three of these encounters, we have the right to remain silent. NEVER give up this right. It protects us from the police twisting our words and getting us to incriminate ourselves, sometimes without us even realizing it until it’s too late.

  • No matter where you are, when a police officer starts talking to you or asking you questions, it is best to play it safe and say the magic words: I'm going to remain silent. And you can add: I want to see a lawyer.
  • He/she may act offended and protest that they were only trying make small talk. This is a lie. Even if a police officer is being polite to you, there is no such thing as mere small talk with an on-duty police officer. If a cop is on duty and is approaching you, he/she is already your adversary. Remain calm and polite, but don't waive your rights!
  • No matter what kind of police encounter it is - conversation on the street, detention, arrest, or in jail - you ALWAYS have the right to remain silent, so use it!
  • Remember the Miranda warnings? You have the right to remain silent. Anything you say CAN and WILL be used against you in a court of law. This statement is the truth (even though it is coming from a cop).

Ruses cops use to get you to talk, i.e. waive your constitutional rights:

  • Pretend that it will help you in court if you tell your side of the story.
  • Make fun of you for being paranoid and invoking your rights when you are not under arrest.
  • Keep asking the same questions and ignore you revoking your rights.
  • Pretend that if you just cooperate and answer their questions, the process will be over sooner.
  • Say that they already have you nailed on a certain crime so it's no use to not give up the details.

These are all LIES! Even if the cop truly is trying to help, remember it is not their job to know what the law is or what your rights are. It is ALWAYS the safest route to remain silent, and keep invoking that right, as well as the right to have an attorney provided for you, until the police stop questioning you.

Tactics the Police Should not Use (but may anyway):

  • Swear at you. Insult you or use racial/gender/sexual orientation epithets.
  • Use coercion to get you to talk or confess. An example of impermissible coercion would be to threaten taking away your children or getting your family in trouble if you don’t talk.
  • Use excessive physical force.
  • Continue to question you after you have invoked your right to remain silent.
  • Re-open questioning after you invoke your right to counsel.
  • Search you, your car, or your belongings without a warrant after you have verbally expressed that you do not consent to any search without some other exception that makes the search lawful.

Do's and Don'ts of Police Encounters

Do… …remain calm. …invoke your rights. …use the magic words. …use your right to remain silent. …be polite, even if they're not treating you with respect. …ask to see the warrant. …ask if you're free to go. …ask why you're under arrest. Remember their answer so you can tell your appointed lawyer at arraignment (if you ever get arraigned). …make a mental note of every shady thing they do or say so you can tell your appointed lawyer at arraignment. …remember the magic words: I'm going to remain silent. I want to see a/my lawyer. I do not consent to a search. Am I under arrest? Am I free to go?

Don't… …waive your rights. …answer any of their questions. …consent to a search. …physically resist the police when they touch you. Don't even push back or you could be charged with battery on a peace officer. Steel yourself and try not to flinch. Do not physically resist a search. …insult them, even if they insult you. …trust or believe anything they say, especially if it's about the law or how they're trying to "help" you. …tell them that they're violating your rights or inform them of the law. It will only remind them to make up a better story in court or to lie on the police report. …lie to them. They're allowed to lie to you, but can be a crime to lie to them and can give them the probable cause necessary to search or arrest you. …blow into a PAS (preliminary alcohol screening device) or perform any other field sobriety tests. These are voluntary tests and are designed for failure.

...SNITCH! Do not tell the police about actions other protestors are planning. Even though you may be well-intentioned you are putting other people in danger of any number of consequences including jail time, a criminal conviction that will make it difficult for them to attain employment, fines that will keep them in poverty, and deportation among other nasty punishments doled out by the criminal justice system. The people you most put in jeopardy are people of color and the undocumented when you talk to the police about protest activity.

DISCLAIMER: This document does not constitute legal advice. If you are being investigated or charged with a crime, you should contact a criminal defense attorney about your specific case. Some rights discussed here may have been waived if you are on probation or parole, but your 5th Amendment right to remain silent is never waived in the circumstances outlined in this document.

Contact Attorney Adriane Bracciale at with any questions.


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Title Police Encounters -- Know your rights!
Publisher Citizens Oversight
Author The National Lawyers Guild
Pub Date 2011-10-06
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Keywords Police Dept Oversight
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Topic revision: r2 - 08 Jan 2016, RaymondLutz
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