Thomas Mott:
KNOW YOUR LEGAL RIGHTS!
People who mean to be their own governors must arm
themselves with the power which knowledge gives. -- James Madison
letter to W. T. Barry, August 4, 1822
As a citizen of
the United States, you have constitutional rights that protect you
from unlawful police actions. Your
constitutional rights protect you, if you are arrested and charged
with a crime. These
rights are fundamental to our free society they are not
meaningless technicalities. The state has awesome power.
The state is a very powerful prosecution machine.
City, county, state and federal police agencies back up local
prosecuting attorneys who have virtually unlimited resources to
prosecute your case. All
you have is yourself, your financial resources, your lawyer and your
Constitutional Rights. These
rights are a wise gift from our countrys founders, who had a very
clear understanding of how fragile individual freedoms are when
confronted by the awesome powers of the state. Do not be afraid to
exercise your rights as an American. These rights keep individuals
strong and keep the powers of government in check.
Remember this: since the beginning of our great nation, many,
many young Americans have shed their blood for your constitutional
rightsvalue your rights accordingly. Additionally, while we
should all respect police officers where respect is due, if a cop
stops you and arrests you illegally, the cop is no better than a
common criminal; no better than an armed kidnapper.
Such illegal police conduct not only violates state
constitutional and criminal law, it violates the supreme law of the
landThe United States Constitution.
Such police action is criminal behavior in every moral and
legal sense of the term criminal. Police officers are not entitled to break the law to enforce
the law; if they do it is a betrayal of their sworn duty to uphold
the laws of their State and The United States America. As an
American, your rights include:
- You have the right to be free from
unreasonable searches and seizures. A cop must have legal justification to stop you or your
vehicle. If the cop
detains you for longer than it takes to address the reason for
a pedestrian or traffic stop, then he has to have specific facts by
which he can demonstrate a reasonably founded suspicion that
you are committing a crime. A
bare suspicion of criminal activity is not good enough. You
can be detained only for the time that it should reasonably take to
confirm or refute any reasonable suspicion that the law is being
violated. You have the
legal, constitutional right to be free from unreasonable stops by
cops. If the cops stop
you or your vehicle illegally, then any evidence obtained as a
result of that illegal action may be thrown out of court.
If the cops detain you without a founded suspicion or detain
you for longer than is reasonable to write a traffic ticket or
confirm or refute any criminal activity, then you may be able to
have the case thrown out of court.
A cop may do a pat down, or frisk search for his
safety, but only if there is some reasonable basis to believe that
there is a threat of danger to himself . Your right to be free from
illegal stops and searches is guaranteed by the Fourth Amendment,
which provides in part: The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated... .
- A cop must have probable cause before he can legally
arrest you for a crime. Probable
cause is enough
evidence to lead a reasonable person to believe that you are
committing a crime. A cop can also search your person or your
immediate surroundings, if the cop has probable cause to believe
that you are in possession of illegal contraband. If the cop suspects the citizen is committing a crime,
the cop will want to establish probable cause to arrest the citizen,
and the citizen will want to go free.
This is a classic clash of police power and individual
liberties. Know your rights! Exercise
your rights! They are
sacred rights offered to you from the blood soaked alter of American
Liberty. The cop has
awesome power, but you, as an American, also have awesome power:
Constitutionally Guaranteed Individual Rights And Liberties!
It is important for the citizen to avoid any ambiguity at
this point of a stop by the cops.
Be courteous and polite, but do not give the cop a break; the
cop will not give you a break. This is the most crucial stage of a
stop. Are you free to
go, or are you under arrest? Throughout
the stop about every minute, politely ask the cop if you are under
arrest. If the answer
is no, then ask if you can leave.
If the cop says he suspects you have committed a crime, you
might respond by telling the cop that you dont know why he has
such a suspicion, but that you want to be on your way.
If the cop arrests you without first establishing probable
cause, then the arrest is illegal.
Your right to be free from illegal arrests is protected by
the Fourth Amendment.
- Once you are arrested, you have the
right to remain silent.
You may refuse to answer any questions asked of you. Your
right to remain silent is guaranteed by the Fifth Amendment, which
provides no person shall be compelled in a criminal case to be a
witness against himself.
- The Fifth Amendment also protects you from being
twice placed
in jeopardy of criminal prosecution or criminal conviction or
punishment for the same criminal offense.
- You have the right to a
lawyer.
Once you are arrested, you have the right to have an attorney
present during any questioning or during any court appearances. Your
right to a lawyer is protected by the Sixth Amendment.
- You have the right to due process of law.
For example, the cops cannot beat a confession out of you,
because that would violate your due process rights.
Additionally, the cops cant promise to go easy on you in
return for a confession, that would be unfair and the confession
would be unreliable. This
amendment simply means if you are arrested, you have the right to be
treated fairly by the state. Your
right to fair and just treatment is protected by the Fifth
Amendment, which provides that no person shall be deprived of
life, liberty, or property, without due process of law."
- You also have the right to be presumed innocent under
the law (even though the sad reality is that, as a practical matter,
you are presumed guilty and treated like a common criminal). The
presumption of innocence is one of your constitutional shields
against the awesome prosecutorial powers of the state.
- You have the right to a speedy, public and fair trial
by a jury of your peers. If
you contest the criminal charge, you have a right to have a jury of
your peers decide whether you are guilty or not guilty. The Sixth
Amendment protects your right to a jury trial.
- You have the right to a reasonable amount of
bail.
Excessive bail is prohibited by the Eight Amendment.
- You have the
right to be free from cruel and unusual punishment.
The Eight Amendment also protects you from cruel and unusual
punishment.
ENFORCE AND
EXERCISE YOUR RIGHTS!
A society
of sheep will produce a government of wolves.-- Bertrand de
Jouvenal
We all know
how things are supposed to be "in theory."
The harsh reality is that police can and
often do anything they want out on the streets.
Most cops are good citizens who do a good job for their
communities. However,
some cops abuse their power. Some
cops won't hesitate to lie about their actions or your actions. Some
are worse than others and a lot of cops may treat you differently if
they realize you know your rights. The bad cops depend on fear and intimidation to get
what they want. Don't let bad cops get away with more than they are
allowed to because of fear and intimidation.
If you run into a really bad cop, talking back to him and
standing up for your rights might get you beaten up or killed, so be
careful about the realistic limits of the law and of your rights as
an American. Bad cops
are perhaps the most dangerous members of our society, so pay
attention when you encounter them.
Stay in control of your words and actions.
Do nothing to threaten a cop, and never make the mistake of
touching a cop.
When a police
officer stops you on the street, the law says that the stop will
fall into one of three categories: (1)consensual contact,
(2)detention and (3)arrest. Which category you're in
determines how much power the cops have over you and what rights you
have to counteract the police power.
CONSENSUAL
POLICE-CITIZEN ENCOUNTERS
When the
people fear the government, you have tyranny. When the government
fears the people, you have freedom. -- Thomas Paine
The least
intrusive police-citizen encounter is "consensual
contact." This means that the officer comes up to you and asks,
"can I speak with you?" If you say "yes," you
have consented to have contact with the police. That is very bad.
The result of such "consent" is that you won't have
important "rights" under the Constitution.
Especially if you think you may be guilty of something (you
have a warrant out on you, you are carrying drugs, you just did
something illegal), you should never consent to talk to a police
officer. This may sound backwards to you. The normal impulse when
confronted with a cop is to try to convince them that you aren't
doing anything illegal. If you follow such an impulse, you are not
likely to talk your way out of the situation and if the cop gets you
on something, you won't be able to get out of it later in court.
Never voluntarily talk to the police! If you don't think you are
guilty of anything, it still isn't a good idea to consent to talk to
a cop. You never know where the conversation will go or how the
conversation will end up.
Some people
might figure, "well, I'm not guilty of anything, so I'll let
the police stop me and ask me a few questions and then I will be on
my way." But,
that is irresponsible and it is a big mistake, because it encourages
cops to mess with your individual liberties, and it encourages a
police state mentality. In addition, it will encourage the idea that
people who don't want to talk to the police have something to hide.
Here is how to
avoid a consensual encounter with the police: If the cop asks,
"can I talk to you," answer with something like, "I'm
sorry, I'm in a hurry and I don't have time to talk to you right
now." If the cop insists, ask him, "Are you detaining me,
or am I free to leave?" Ask this several times to make sure the
cop will have a hard time denying it and saying you didn't mention
it later if you end up
in court. If it is really a consensual contact, the officer ought to
let you go on your way, if you ask to go. If you don't actually ask
to leave, the court will presume that you consented to whatever
follows.
DETENTIONS:
"The
Constitution is not neutral. It was designed to take the government
off the backs of people." --William O. Douglas,
Supreme Court Justice
The next
category of police-citizen contact is called a detention. The police
are only allowed to detain a citizen when there are specific facts
that can be articulated supporting a reasonable suspicion that the
citizen is involved in criminal activity. This means that cops can't
detain you on a hunch, guess, or bare suspicion.
Specific, articulable facts are facts that the police must
have observed or otherwise learned about that link you with specific
criminal activity. If the police detain you without such a factual
foundation, the detention is illegal and whatever they obtain as a
result of the detention (evidence or arrest) cannot be used against
you in court. How does this all work in real life?
A common
detention occurs in a DUI stop.
Normally, the stop is based upon some traffic violation.
Once the cop has you stopped, he must complete his business (ie:
the detention) and let you go on your way, or arrest you.
While the cop may have stopped you for speeding, or some
other traffic violation, he really wants to arrest you, if he
suspects you of DUI. To
do this, he will try to get as much information from you as he can.
He wants this information to help him establish probable
cause, to justify arresting you.
Do not give the cop probable cause to arrest you.
Do not answer any questions that may incriminate you.
You must provide your drivers license, registration, and
proof of insurance, upon request.
But, be careful not to volunteer any further information.
Admitting to drinking alcohol will incriminate you, so be
careful. You should
never admit to having more than one drink.
Typically, the cop will ask where you have been and where you
are going, and also ask if you have been drinking, and if so how
much. All of such
questions are intended to establish probable cause to arrest you.
You do not have to answer such questions. You may simply tell
the cop that you would like an attorney present during such
questioning. The cop
will want you to perform the field sobriety tests (such as, the
walk-and-turn, finger-to-nose, one-legged-stand, etc.).
You do not have to take these tests.
In Florida and most other states, you will not loose your
license for refusing the field sobriety test. You should refuse to
take the field tests, because the tests are designed to make you
look drunk and to help establish probable cause to arrest you.
If you refuse to take the breath or urine test, you can loose
your license for one year. A DUI stop is not the only kind of
detention.
Suppose the
police stop you because it is late at night, you are walking down
the street, and you look suspicious, or strange, to the
cops. The cop might ask, "Excuse me, may I talk to you?"
If you reply, Yes, have just consented to talk to the police.
That is not good, because
the officer may notice something, after talking to you for a
few seconds, that may give him justification to detain you or pat
you down, search you or even arrest you.
For example, if the cops notice a bulge in your clothing,
they now have cause to detain you, pat you down and could eventually
arrest you, if the bulge is pot or some other illegal substance. If,
however, you replied, "No, I have to go," then the cops
are supposed to let you go, because they do not have legal
justification to detain you; they have no reasonable suspicion
supported by specific facts that you are involved in criminal
activity. The
only facts they have is that you look suspicious.
If the cop says,
"Well, you can't go," or otherwise detains you, then if
they do find reason to arrest you, you may be able to get the case
thrown out of court, because
the original detention may have been illegal. If the officer detains
you and finds nothing, you should complain to the city, a city
representative or the police department. Often, when you start
exercising and enforcing your rights and using terms like
"detention, reasonable suspicion, specific
facts, articulable facts, and probable cause, the cop
is not going to mess with you.
A lot of a bad
cops power comes from intimidation and public ignorance. It is
crucial that you let the officer know that you are not
consenting to talk to him, that you know what your rights are,
that you are exercising those rights and that the only way you will
talk to him is if he detains you. The cops may have justification in
some cases to detain you, and there is nothing illegal about a
police detention, if the cops have a reasonable suspicion of
criminal activity supported by specific facts that can be
articulated. On the
other hand, not just anything is a "specific and articulable
fact" supporting a suspicion that you are involved in criminal
activity. There has to be more than a bare suspicion and the facts
supporting the suspicion have to be specific.
A lot of police
harassment situations involve the police stopping citizens because
they look suspicious and then the bad cops go on a fishing
expedition" looking for a valid reason to detain or arrest the
innocent citizen. Do not consent to a police encounter that has no legal
justification. Dont
consent to a fishing expedition.
Don't give the cop a chance to pin some bogus charge on you.
Just say no to illegal police action!
ARRESTS
"Government
is not reason, it is not eloquence, it is force; like fire, a
troublesome servant and a fearful master. --George Washington,
speech of January 7, 1790 in the Boston Independent Chronicle,
January 14, 1790
The most serious
police-citizen contact is an arrest. For an arrest, the police need
a high level of suspicion of your involvement in criminal
activitythe cops must have probable cause to justify an arrest.
Probable cause can be a complicated concept.
But, there is a simple definition of probable cause:
that amount of evidence which would lead a reasonable person
to conclude that a crime is being, is about to be, or has been
committed, and that you committed the crime. Therefore, before a cop can arrest you, the cop must
have enough evidence (facts, knowledge, etc.,) to lead a reasonable
person to conclude that you had committed, were about to commit, or
were in the process of committing a crime.
If you are
arrested, the police can search you as part of the arrest. If the
officer asks to search you without arresting you, you can say no.
The police have the right to search for weapons if they feel in
danger of being attacked. They are not allowed to search people for
other items. In a lot of cases the police ask to search a citizen
and get consent to search them.
That is not a good thing. Individual liberties are sacred.
Individual liberties are very rare in the history of the world. As Americans, we all have a duty to exercise our
constitutional rights. Exercising
constitutional rights keeps the rights strong and keeps America
free. Waiving constitutional rights weakens and erodes the
individual rights, and that in turn creates fertile soil for
tyrants, dictators and a police state to grow.
If you consent
to a search, even though the search isn't justified, it will be
legal because you will have waived your individual right to be free
from unreasonable searches by the cops. If the cop asks to search
you or any of your property, tell them you don't have any weapons
and ask if you are being detained, or if you are under arrest or if
they have a warrant. If you aren't and they don't, tell them you are
an American citizen and that you would prefer to exercise your
Constitutional Right under the Fourth Amendment to be free from
unreasonable searches.
They may ask
many times and seem to be acting with complete authority. But, just
say no to illegal police action.
Tell them you will not let them search you unless they arrest
you or have a warrant. You may want to reassure them that you don't have a weapon.
If they and search you anyway and find something, you may be able to
get the case thrown out of court.
If the cop is a
good cop and obeying the law while enforcing the law, then the cop
should leave you alone. The fact that you refused to be searched
does not make you more "suspicious" and give them an
excuse to search. Of course as stated above, the police may ignore
all of these laws and they may be less than polite and may even use
unlawful force. When a cop gets out of control, deal with the
situation carefully. But, don't voluntarily consent to a
police-citizen encounter, and dont consent to a search.
WHAT SHOULD YOU
DO IF YOU ARE ARRESTED?
As
nightfall does not come at once, neither does oppression. In both
instances, there's a twilight where everything remains seemingly
unchanged, and it is in such twilight that we must be aware of
change in the air, however slight, lest we become unwitting victims
of the darkness.
William O. Douglas, Supreme
Court Justice
Being arrested can be a very
frightening and confusing experience. Knowing what your rights are at
least gives you some guidelines to follow. If you are arrested, the
most important things for you to remember are: (1) Anything you can
say can and will be used against you; and (2) You have the right to
ask for an attorney to be present before you can be questioned. No
matter what the reason for your arrest, the police are required by law
to inform you of the charges against you. Before you are questioned,
they must tell you that you have the right not to answer any question
or give any statement because your answers or statements may be used
against you at a later time. You may have heard of this right under
the name of Miranda warnings. Remember, you do not have to answer any
questions; your silence cannot be used against you. Blurting out
statements to the police at the time of arrest can result in those
statements being used against you. If you are arrested, you have the
right to know the name of the arresting officers you are dealing with.
This is your right by law and by custom. Do not try to make bargains
with the police. In most cases, it is best to keep your mouth shut.
The job of the cops is simply to take you into custody and build the
case against you. Trying to bribe an arresting officer and resisting
arrest are other crimes that you can be charged with. The police do
not have the authority to make binding deals for the state. It is up
to your defense4 attorney to negotiate with the prosecuting attorney
and the police, if your case reaches that point. You have the right to
make one telephone call as soon as practicable after you are brought
to a police station. You may call a family member, a friend, your
attorney, or anyone else who can help you. The police have a right to
complete their booking procedure before you are allowed to use the
telephone. The booking procedure will consist of giving the police
basic information about yourself, being fingerprinted and
photographed. Remember, you should not talk to anyone about your arrest. If
you cannot afford a private attorney, the Public Defender's office
will be appointed to represent you. The Public Defender's office is
staffed with attorneys available to give you important legal advice
following your arrest. However,
you will not likely have any meaningful contact with a public defender
until just before or after arraignment.
If at all possible, you should have an attorney present when
talking to cops. If you have strong ties to the community, own a home,
have local relatives, a job, etc., you may be released on your own
recognizancewhich means you do not have to pay any money to get out
of jail or post any kind of other property, and you promise to appear
in court when directed. You may also be released on bail, which
involves the posting of either cash or a surety bond as security for
your court appearance. Bail bonds from licensed sureties are usually
available at a cost of 10 percent of the amount of bail. The decision
to release you or the amount of bail can often be made by someone at
the jail. You should find out who is in charge of pretrial release at
the jail. Normally,
information about how to get in touch with a licensed bail surety is
posted in the booking area. If you are taken into custody and booked
into the jail and are not released within 24 hours, you must be
brought before a judge. At that appearance, the judge will inform you
of the charge against you and also ask you whether you can afford to
hire an attorney. If the judge decides you cannot afford to hire your
own private lawyer, the judge will appoint the public defender's
office to represent you. At this time, you can also ask the judge to
reconsider the amount of bail that has been set based on your ties to
the community, financial resources, employment record, or any other factors. Upon
arrival at the jail, or shortly thereafter, you will be
given an opportunity to contact your attorney. The attorney may
arrange for the posting of the bond and may appear in court with you
to ask the judge to lower the bail amount. If you are arrested,
remember you have the protections of the Constitution of the United
States and of the State of Florida. You do not have to answer any
questions, and you have the right to demand an attorney as soon as you
are taken into custody.