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Wednesday, November 17, 2010

Know Your Rights: What the ACLU Taught Me About Police Rights

Posted on Wed, Nov 17, 2010 at 5:43 PM

Tuesday night the Center for Intercultural Organizing hosted an event called Know Your Rights, which was billed as a workshop about what to do if contacted by police while in my car, on the street or at my home. I knew that Legal Director Kevin Díaz of the ACLU would be there, and that there would probably be chocolate chip cookies too (there were!). As it seemed an opportunity ripe for the education of a budding criminal, I invited my younger brother to come along.

Unfortunately, what he and I learned is that we don't have nearly as many rights as we'd hoped. Díaz kept repeating, "It all depends on the facts of the case," but here's a short list of things you might not know about your rights with the police:

1. Officers can legally lie to you (as in, threaten you with "possibilities" of arrest, overnight detainment or K-9 units, or promise you special deals if you "make things easier" and give up information).

2. According to Díaz, police can ignore your refusal to consent to a search. If they find anything in their not-consented-to search of your car, home, backpack or person, they can still arrest you for it and use that evidence in court. In the end, it's up to your lawyer to get illegally-obtained evidence thrown out. Edit (11 pm): A 1914 Supreme Court ruling calls this illegal search and seizure, a 2009 Supreme Court ruling clearly defines the rules regarding car searches and the evidence from an unwarranted search and seizure almost definitely won't hold, but I suppose it could still happen.

3. If an officer asks you to step out of your car, you have to—even if you didn't do anything illegal. Recently, in the lovely state of Washington, a pregnant woman was tased three times for refusing to step out of her car, and the court deemed the treatment appropriate!

4. The U.S. border extends to 100 miles inland and "the best way to think of your rights at the border," says Diaz, "is that you have no rights." In this fun zone, Diaz says law enforcement agents can conduct body cavity searches at their whim and leave you with "no legal recourse whatsoever".

5. It's illegal to record or videotape (with audio on) other persons—including the police—without their consent. And because it's a crime to record someone without their consent, the police could prosecute you for doing it. Edit (11 pm): Check out articles on these controversial state-level rulings and whether they'll hold up to long-term scrutiny (or apply to Oregon courts) from The Boston Globe, The Washington Post, The Oregonian and The Freeman. This is also interesting (thanks to AI M).

More information I learned after the cut.

6. Edit: If the police approach you and want to talk to you, you are not necessarily required to engage. Simply ask if you being detained; if you're not, you're free to go.

7. In order to detain you, law enforcement officials need "reasonable suspicion" that you were or are involved in a criminal activity. Dropping something as the police approach you or matching the physical description of a suspect is apparently grounds for "reasonable suspicion".

8. Detainment means you have to give the police your name and they have the right to frisk you. If they feel something hard in your pocket that could be a weapon, they can take it out; they should not, however, be searching your pockets (or your cell phone or anything else) without consent unless they have "probable cause"—"reasonable belief" that you were or are involved in a criminal activity.

9. Police should not come inside your home without your consent or a search warrant (which is, by the way, different from an arrest warrant). Safe bet: step outside to sort out the details with the police, and close the door behind you.

And some advice for immigrants:

10. If you're undocumented, it's best to carry no papers at all (never present fake papers to the police).

11. Know an immigration lawyer and call them if you're being arrested—you're entitled to a criminal lawyer, but that criminal lawyer could give you very bad advice as pertains to your special status as an immigrant.

12. If you are booked by the police, you do not have to fill in the section of the paperwork that asks which country you're from. The police may claim that they need that information to comply with consular notice laws, but that's not true. Filling in that information instantly triggers ICE involvement, which can have major consequences.

In sum, my get-out-of-jail-free experiences with the Portland Police have not been not due to any clever, rights-asserting behavior on my part, as I'd previously believed. Rather, the police apparently left me alone out of the kindness of their hearts. That, or I seemed like a hassle. In either case, I am grateful (Allahu akbar!) and will spend the rest of my life desperately avoiding interactions with law enforcement.

Good luck to you!

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