The result of the so-called War on Drugs?

http://www.slate.com/id/2201632/

http://www.cato.org/pub_display.php?pub_id=6476

http://www.cato.org/raidmap/

First, see my January 14, 2009 blog on the same subject. 

Here is a listing of States that have so-called "Stop and Identify Statutes:"

http://www.statemaster.com/graph/cri_sto_and_ide_sta_sta_wit_quo_and_ide_sta-stop-identify-statutes-states-quot

For the police to stop you and require that you identify yourself they are required, at a minimum, to have "reasonable suspicion" that you have (or are about to) committed a crime.  To conduct a Terry search, or a stop and frisk, police need reasonable suspicion that the person is suspected of imminent illegal behavior or past criminal activity. Reasonable suspicion is based on the totality of the circumstances as understood by those versed in the field of law enforcement; it is commonly described as something more than a hunch but less than probable cause. And what does totality of circumstances mean? It refers to an assessment based on all the circumstances, which includes objective observations, information from police reports, and consideration of the modes of patterns of operation of certain kinds of lawbreakers.

The United States Supreme Court has identified three types of police-citizen encounters: (1) consensual encounters, (2) investigatory stops, and (3) arrests.

Consensual encounters do not trigger Fourth Amendment protections. Florida v. Bostick (1991), 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389. During a consensual encounter, a law enforcement officer need not articulate reasonable suspicion and may approach an individual to ask questions, engage in conversation, check identification, ask for consent to search luggage, and so on. Id. So long as a reasonable person would feel free to ignore the law enforcement officer, the encounter is consensual.

Remember, police do NOT have to tell you whether they have "reasonable suspicion," or not.  They burden on you is to determine whether you are free to leave. 

So, as I have been trying to drum into all of you - you must ask.  In other words, if you are stopped walking down the street and the police stop you and ask for your I.D., you should say:  "If you are asking permission to see my I.D. I don't give you consent to see it - am I free to leave?  If you're ordering me to give you my I.D., I'll comply." 

What these magic words do is force the cop to reveal whether they believe they have "reasonable suspicion" to stop you, or not.  This is important because many times cops will try to trick you into showing your I.D. (and consenting to searches, etc.)  by consent when they have no "reasonable suspicion" to demand it.  If the cop tells you he is demanding you show I.D. (implying s/he has "reasonable suspicion"), and in fact they do not, your lawyer may be able to get any evidence against you that they collected thrown out of court as inadmissible. 

http://www.flexyourrights.org/radley_balko_on_vide...

Radley Balko Discusses Videotaping Police (podcast) | How to Flex Your Rights During Police Encounters

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Videotaping the Police is Usually Legal
September 30, 2009

[This blog was originally posted on 9/27/09.  Since then I've done more research and found that, even though there is a very good argument (........http://www.law.suffolk.edu/highlights/stuorgs/lawreview/documents/Skehill_Note_Final.pdf ....) that it should always be legal - sometimes courts, even appellate courts, have held in favor of cops' privacy rights over the citizens' 1st and 4th Amendment rights.  This is especially true in various state electronic wiretapping laws that do not have an exception based on a "reasonable expectation of privacy" provision.  Also, some states (like Wisconsin) only require one-party consent (you) to surreptitiously record, other states require all parties to consent.  Lastly, based on the construction of various wiretapping laws, it matters whether, or not, you are openly videotaping the police, or you are doing it surreptitiously.  You are on safer legal ground if you videotape the police openly, rather than surreptitiously.  Some state courts have said that to surreptitiously videotape the police is illegal, but to publish the recording (on YouTube, for instance) is legal.  Go figure.

Modifying the statutory language of Anti-Wiretapping Statutes to include an exception to the all-party consent requirement when a party has no reasonable expectation of privacy would bring those states lacking such an exception in line with the majority of states that allow for the surreptitious recordings of on-duty police officers.

So, what should you do?  Given that the law is somewhat unsettled on the legality of surreptitiously, or even openly, videotaping the police, you should contact a lawyer or an organization like the local ACLU chapter in your state BEFORE videotaping the police.] 

Police nowadays will often arrest people who videotape them, claiming that to videotape them constitutes harassment and/or felony wiretapping.  Prosecutors often play along with these false charges and prosecute these cases.  Some trial judges even support this unconstitutional action, however most throw the cases out of court. 

So long as you do not interfere with the police most courts have held that it is your Constitutional right under the 1st and 4th amendments to videotape the police.  If you are arrested for videotaping the police you may have a viable legal action under Sec. 1983 of the federal statutes - which includes legal fees, compensatory damages and punitive damages.

The law of the land is found in the following case, which says in partThe following case is representative of most courts holding on videotaping the police: "Videotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence, as it did in this case. In sum, there can be no doubt that the free speech clause of the Constitution protected Robinson as he videotaped the defendants on October 23, 2002. See Smith v. City of ..Cumming...., 212 F.3d 1332, 1333 (11th Cir. 2000); see also ..Stanley.., 394 .U.S.at 564 (1969); Whiteland Woods, L.P. v. ....Township.. of  ..West Whiteland...., 193 F.3d 177, 180 (3d Cir. 1999).

The Constitutional principles involved in this action are well established. We are dealing with a "close case" or with the split-second decisions police officers often have to make in the heat of a dangerous or potentially dangerous confrontation.  There is no justification for the actions of defendants [police] in violating Robinson's right to free speech and his right to be secure in his person against an unreasonable seizure."

http://www.paed.uscourts.gov/documents/opinions/05D0847P.pdf

............ Police Departments, especially in the Mid-west, have been pushing their luck with this tactic, so if you encounter anything resembling an actual drug checkpoint, please contact that state’s ACLU Chapter. Similarly, if you’re arrested as a result of a real or fake “drug checkpoint”, you must contact an attorney to explore your legal options.

............

As a general rule the public should recognize that cops are dangerous, especially because of the so-called "war on drugs."  Most cops are good people, but they are trained to detect illegal behavior and, as a rule, it is smart to avoid contact if possible.  Unfortunately, once the cops have noticed you, you are halfway to having a very bad day. 

If cops show up at my door, I would (and have) come outside and close the door behind me - regardless of whether there is something to hide or I'm having tea with grandma.  Cops will invariably ask why they can't come in - no answer is required because you don't need a reason.  However, that is not a practical response sometimes because of the pressure people feel in such circumstances.  If you feel you have to respond to why you won't let them into your house, or car, my advice is to say:  "I never let anyone I don't know into my house and, no offense, but I don't know you."  In other words, because it is your right not to let anyone, especially cops, into your home, you can lawfully refuse them entry unless they have a warrant, or they are in "hot pursuit" of a criminal.  Denying consent to enter your home will get scowls from the cops, but it is your right... and will avoid giving the police consent to search when they would otherwise not have such authority.  If they have a search warrant, they’re coming in – ask to look at the warrant (and get a copy from the police department later), get out of their way and don’t engage in any substantive conversation on the reason for the search.

The most important thing for anyone to remember is to not let the cops trick you into giving consent to search.  Remember this line:  "If you're asking my permission to search my car [or enter my house] the answer is no.  If you're telling me you're going to search without my consent, then I will not interfere." 

If they search without a warrant, or your consent, you should remember that it is best to say as little as possible during an encounter with the police.  If they arrest you should remember that it is best to always, and without exception, tell the cops that you wish to remain silent and that you want your lawyer.  A trick cops use once someone has been arrested and invoked their 5th Amendment right to shut-up and have a lawyer present for questioning, is to put you in a squad and drive you around.  During this little drive they will carry on a conversation between two officers about your case, which is designed to get you talking about your situation.  Everything you then say is evidence that can be used against you and the cops have not technically violated your 5th Amend. rights because they didn't ask you any questions - from the court's perspective you voluntarily offered the information without being asked to give it.  Voila, interrogation without questions!

The second most important line is to ask is whether you are free to go.  In a traffic stop, for instance, do not reach into the glove compartment or under the seat when you see the cop's flashing lights because any such movement will likely give the cop “probable cause” to think you are stashing something or getting a weapon.  Once the cops initially stop you, approach the vehicle, peer inside and get your license and registration, it is the cop’s responsibility to charge you with something or let you go. Always stay in the car with you hands visible unless they order you to get out.  Asking if you are free to go at this point puts the onus on the cop to issue a citation, arrest you, or let you go.  If they say “no, you are not free to leave” and go back to their squad car to write a ticket, you are technically being detained until they hand you the ticket.  Cops will often begin with more questions at this point.  Your response should be to not answer any questions and again ask if you are free to go. 

If they order you out of the car it means they are continuing the investigation and want to conduct a "Terry" search.  "Terry" is a U.S. Supreme Court case that essentially said that during a traffic stop cops can conduct a search of you and the immediate surrounding area for weapons to protect their safety.  If the cops order you out of your vehicle, close the windows and lock the car as you exit.  They'll ask why you did this - answer, "I always lock my car when I exit" and nothing more.  If they ask for the keys to get into the car, again say:  "If you're DEMANDING the keys to search my car [or enter my house], I won’t interfere, but if you’re ASKING for my keys because you want my consent to search my car, the answer is no."  If they demand the keys (BTW, give the cops the keys if they demand that you do so) and search your car, your lawyer now has an argument that the search was illegal and any evidence is not admissible.  Once this exchange is finished is when you ask if you are free to go.  If the cop is just asking you question after question as he or she stands next to your car, this, too, is a good time ask whether you are free to go.  In other words, at any time if you sense that the cops are just fishing for consent to search or trying to squeeze an admission out you, that is a good time to ask if you are free to go.  You might want to look at the videos by Ira Glasser (ex-head of the ACLU) on this website on this subject.

If they say no, you are not free to go, they have to give you Miranda before they ask questions of you (Miranda is merely a requirement that cops tell you your 5th Amend. rights once you have been detained and before you are questioned).  By “being detained” I don’t mean “wait here while I write your speeding ticket,” which is technically being detained - I mean you are detained but the ticket has been already been issued.  Note here that you don't have to be "arrested," merely detained and not free to go.  If you are both detained and asked questions by the police without a Miranda warning, the evidence gets tossed in court.  Never believe cops when they say that talking to them will "make it easier on you."  It is well established that cops are permitted to lie to you to get evidence against you.  When in doubt, shut-up and ask for your lawyer.

You should know that you've got fewer privacy rights in your car than almost anywhere else (you are most secure in your house).  Never smoke pot in the car and if you must transport your pot, put it in the trunk in some sort of container that hides it from sight. 

Another trick cops use is to come on hard during the initial phase of a traffic stop and then to become very chatty and personable.  As they walk away they'll ask something like the following:  "I know you've got nothing to hide, but you don't mind that I look in the trunk? - you know, just to keep my Sgt. happy."  Again, say, "If you're asking my permission to search my trunk, the answer is NO" because if they had the right to look in your trunk they would not be asking your permission. Refusing consent does not give the cops "probable cause" to believe anyone is engaged in criminal activity - you'd be surprised how many people think it does! 

In my opinion, no one should ever consent to any kind of search of invasion of their privacy, so even if there is no contraband in your trunk, don’t voluntarily diminish your privacy by letting anyone, especially the cops, rummage through your stuff. 

Lastly, don't incriminate yourself or give the police probable cause.  For example, if a cop stops you and asks you whether you know how fast you were going - you should either change the subject and ask "what can I do for you, officer" or say "the speed limit" because to admit you were going 45 in a 40 mph zone is an admission of guilt.  Same goes for drinking.  Anyone with half a brain know that any drinking before you drive diminishes you driving skills and makes accidents more likely. However, admitting you’ve been drinking when a cop stops you, no matter how little,  may give the officer probable cause to test your alcohol level based solely on your admission.  The cops may well have other legitimate reasons to suspect you’ve been drinking, but nonetheless there is no good reason to incriminate yourself by admitting anything.  You will never be convicted of a crime for not incriminating yourself regarding how fast you were driving or whether you’ve been drinking, but volunteering such information often leads to serious convictions.  Cops have the right to ask you such questions, but you have the right to not incriminate yourself.  Not admitting guilt does not create evidence that you were, in fact, speeding or drinking.

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.. ..

Henry Louis Gates Jr. is a full professor and for the last twenty years the most prominent scholar in African American History at Harvard University.  The guy knows the President – he’s got juice.  According to Abby Goodnough of the New York Times, this is what happened in his recent run-in with the cops:

Professor Gates, who has taught at Harvard for nearly two decades, arrived home on Thursday from a trip to China to find his front door jammed, said Charles J. Ogletree, a law professor at Harvard who is representing him.

He forced the door open with the help of his cab driver, Professor Ogletree said, and had been inside for a few minutes when Sgt. James Crowley of the Cambridge Police Department appeared at his door and asked him to step outside.

.. ..

Professor Gates, 58, refused to do so, Professor Ogletree said. From that point, the account of the professor and the police began to differ.

According to his lawyer, Professor Gates told the sergeant that he lived there and showed his Massachusetts driver’s license and his Harvard identification card, but Sergeant Crowley still did not seem to believe that Professor Gates lived in the home, a few blocks from Harvard Square. At that point, his lawyer said, Professor Gates grew frustrated and asked for the officer’s name and badge number.

According to the police report, Professor Gates initially refused to show identification.

In the report, Sergeant Crowley said a white female caller had notified the police around 12:45 p.m. of seeing two black men on the porch of the home, at 17 Ware Street. The caller, who met the police at the house, was suspicious after seeing one of the men “wedging his shoulder into the door as if he was trying to force entry,” according to the report.

A spokesman for the Police Department did not return a call seeking comment. But in the report, Sergeant Crowley said that as he told Professor Gates he was investigating a possible break-in, Professor Gates exclaimed, “Why, because I’m a black man in America?” and accused the sergeant of racism.

“While I was led to believe that Gates was lawfully in the residence,” Sergeant Crowley wrote in the report, “I was quite surprised and confused with the behavior he exhibited toward me.”

Professor Gates followed him outside, the report said, and yelled at him despite the sergeant’s warning “that he was becoming disorderly.” Sergeant Crowley then arrested and handcuffed him. Professor Gates was held at police headquarters for hours before being released on his recognizance.”

            You might be surprised that something like this could happened to a prominent scholar like Professor Gates – in his own home – but I’m not really surprised at all.  First of all, we don’t have all the facts, and we may never have them all.  However, on certain important matters, it is pretty clear what happened.

            Gates showed up at his nice upscale home in his white, upscale, professional neighborhood in Cambridge.  Returning from a speaking engagement in China, Gates’ cabbie, who is also black, helped him as he struggled to free the front door that evidently was stuck.  A white neighbor of Gates called the cops and the encounter quickly spun out of control. 

            So, if you’ve read anything that I’ve written here you know that what I’m trying to accomplish is to give you the necessary information to prevent police encounters from turning into arrests.  So, from that point of view - what went wrong?

            Oh yeah, Professor Gates teaches African American Studies.  There is no doubt that Civil Rights and the role of law enforcement as a guardian of the status quo (i.e., muscle for those who opposed the ideals of the Civil Rights movement) is a topic Gates has touched upon as a scholar and teacher. 

            Unfortunately, Professor Gates, for all of his scholarly horsepower, was quite naive.  Even if the cops are totally mistaken and you are innocent of all criminal deeds, if you yell at a police officer, you will be arrested – always.  This is a rule that is seldom, if ever, broken. 

To our sensibilities the cop, Sgt. Crowley, should have been at least a little sheepish as he realized that Professor Gates was rightfully and lawfully in his own home.  Sgt Crowley, who reportedly taught some sort of police department diversity training (which likely included training in how officers could avoid the accusation of racial profiling) evidently was not (and is not now) interested in making apologies to Gates.

If it is true that Gates raised his voice to Sgt. Crowley, and especially if he persisted in raising his voice after being warned to cork it, then 99 out of 100 cops – which I guess means Crowley - will remember their use-of force training, not their diversity training.  Cops are trained that if someone yells at them in even a remotely hostile fashion, that is an escalation on the so-called use-of-force continuum (see previous blogs). 

Yell at a cop and they will put their hands on you if you persist.  Wiggle and they will take you to the ground, and so on.  In other words, cops are essentially trained to meet aggression with slightly more aggression.  You can complain that such a training system is wrong-headed, but the fact remains that this is the state of police training as it now exists in the United States.  The time to take a stand against how police are trained in NOT during an encounter with cops – any time is a good time except when the cop is in your home telling you what to do with a gun on their hip and powers of arrest menacing your every move.

When it is really difficult to keep your mouth shut is precisely the situation Professor Gates found himself in:  He’s lawfully in his own home, he’s probably been racially profiled by the cop who is ordering him to essentially shut-the-fuck-up, the cops do not say they are sorry or show him much or any respect, the cops refuse to answer his questions (BTW, asking for a badge number and name is never going to protect you , and is seldom necessary) and the cop shows signs of aggression towards him even though the cop knows he wasn’t a burglar.

It is precisely at this moment that you should remember that there is never anything to be gained by telling police what is on your mind – especially if what is on your mind is that the cops bossing you around in your own kitchen are racist pricks who owe you an apology, if not a pound of flesh.. 

If you are have an encounter with the police you have to keep your wits about you no matter how insulting or demeaning you may find the officer’s actions or statements to be.  If Professor Gates had kept his emotions concealed, he could have blistered Sgt. Crowley in some sort of citizen complaint hearing, if not a lawsuit.  He could have torn the guy apart in an op-ed article to the NY Times – whatever.  For his part, it sounds like Sgt. Crowley could have defused the situation by simply not being a dick-head and saying one kind word to the righteously pissed-off professor.

So, what should Professor Gates have done when confronted by cops demanding he show identification?  For one thing, asking cops “why” is dumb.  If need be, find out the “whys” of the situation later – cops will never stop an aggressive action aimed at you to explain the “whys” of their behavior.

Ask if you are being ordered to produce your identification.  If the cop says yes, produce the I.D. and argue about it later on another day and in another venue – like court.

  If a cop is squared up to you and he or she has that pissed-off, aggressive body language (admit it, you know exactly what I mean), then you need to realize that, as “they” say, revenge is a dish best served cold.  Now is not the time to metaphorically fight the cop.  Get out of your “this guy is an ass-hat and I’m going to tell him so” mode and into your best chess player persona.  You win in police encounters by using your head. 

Know your rights and know how police are trained and you will be able to maneuver the situation in a way that best helps you.  Fall into the cops’ trap by meeting their aggression with aggression of your own and you will lose – every time and with no exceptions. 

Cops are, for better or worse, trained that a raised voice aimed at them is aggression.  Winning is preventing the police encounter from unnecessarily becoming violent and ending in arrest by defeating or foiling the cops with a soft form of force application. Call it what you like – mental judo or not being foolhardy – whatever, just remember what Professor Gates either did not know or forgot:  Never surrender you rights by consent and, when in doubt, keep your mouth shut no matter how wrong, disrespectful, aggressive or stupid you think the cops are acting.

No. The courts have made clear that police officers do not have to tell people that they can refuse to consent to a warrantless search. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid.