I was able to participate in a “Know Your Rights” workshop during a series of seminars hosted by Center for Youth Development through Law’s summer fellowship program. Law students facilitated a series of workshops, and the one I co-facilitated was regarding contacts with law enforcement.
I wanted to share the knowledge that I was able to share with the high school participants of the workshop regarding what one’s rights are when encountering law enforcement.
Firstly, knowing the difference between casual encounters, detentions, and arrests is important because it pertains to our Fourth Amendment Right in our federal Constitution. The 4th Amendment is as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
(Temporary and permanent) detentions and arrests constitute as seizures under the 4th Amendment. As a result, because we have a right against unreasonable searches and seizures, this means that we should not be detained or arrest “unreasonably.” Therefore, knowing what is a reasonable or lawful detention or arrest is crucial when interacting with law enforcement.
WARNING: Safety is absolutely crucial when interacting with law enforcement. Even when asserting your rights–including refusing to answer questions in certain encounters with law enforcement–remain calm and respectful. If you feel like your rights have been violated, you can take action after the fact. This include:
-Asking for the badge number of the officer you interacted with, or a business card.
-If the law enforcement officer refuses to give their information, you can call dispatch
and give them the geographic location you were in and the time of day you
encountered law enforcement; with that information, dispatch should be able to give
you the names of the officer(s) you encountered.
Especially in this political climate, its not worth one’s liberty or life to go against law enforcement who are in a position of power (and possess deadly firearm).
Now to begin. . . here is the flowchart to start the conversation. The pertinent question to ask law enforcement is if you’re allowed to leave. This will determine what kind of encounter you are in with law enforcement.
- Consensual Encounters
If you are able to leave the conversation with law enforcement, this is a consensual encounter. Consensual encounters are thought to be the least intrusive form of contact from law enforcement. The police may initiate a consensual encounter without any objective justification. An example of consensual encounter is if a police officer asks you questions. (see above for examples). If asked, you are allowed to decline to listen to the questions. Refusing to answer should not be used against you to further suspicion against you.
If an officer asks for your identification or to have you explain what you’re doing, it is still generally considered a consensual encounter. Therefore, you are allowed to decline politely.
In a consensual encounter, the best question to ask is, “am I free to go?”
You do not have to answer any questions and if law enforcement is not giving you clear answers, you are allowed to keep asking if you’re free to go and not answer any questions you are asked.
Detention is usually when a reasonable person does not feel that s/he is unable to leave freely. Detention requires reasonable suspicion (which should be a specific & articulate suspicion that would narrow suspicion to the individual). If law enforcement is making a request or command, it can be interpreted as a detention. The tone of the officer(s) can be significant. Not every order is a detention. Again, it is crucial whether a person would reasonably feel free to disregard the order.
A person who runs off at the approach of the police is not detained while being chased. However, objects thrown or dropped by the defendant during the chase are admissible, regardless of whether the police had adequate grounds to detain him or her.
There are differences to distinguish a “valid arrest” under federal law, the Constitution and California state law. Key requirements for Valid Arrest under the Fourth Amendment are:
- Probable cause to arrest
- The use of only reasonable force in effecting the arrest (note: excessive force issues are usually raised in the context of civil litigation. Overall, no case law has been established where excessive force in making an arrest results in exclusion of evidence against a suspect of a crime in their criminal law trial)
Here are the differences in establishing arrest as defined in the California state statute vs. Fourth Amendment.
- In CA Statute elements of arrest are: “Taking a person into custody” (Pen C. § 834)
- “actual restraint of the person or his submission to custody” (Pen C. § 835)
“Probable Cause” for adults is the belief that the “suspect” committed the offense “in the officer’s presence.”
Detention is more temporary than an arrest. However, for both, you are not allowed to leave. Do not run away from law enforcement during a detention or an arrest.
Law enforcement is required to have reasonable suspicion and probable cause to detain or arrest an individual. If you are a minor, if you are detained or arrested, it is your right to request for a parent/guardian or an attorney present before answering any more questions from law enforcement.
Hope this knowledge can be of help to someone.
Sincerely, in Solidarity,
The Pacifist Fighter