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People often suggest to me that either 1) It’s somehow “Un-American” to talk about your rights when dealing with the police or that 2) Somehow only someone who is intending to break the law would need to understand their legal rights.
As to 1) This is really some dangerous nonsense. In fact this honestly might be one of the craziest ideas that has ever taken root in our Country and as to 2) As I always say “It’s better to know your rights and not need them, than to need your rights and not know them.”
The accompanying article goes into an overview of some 4th Amendment law in more detail. But really the infographic is meant to be shared even without the article. Feel free to share this infographic on Twitter and Facebook. Tag family members or friends who might be going to a music festival. Share your experiences and insights. Do more reading of your own and share that too.
As the very last part of the infographic says
You have rights. Know them.
•Tweet & Retweet at Twitter (use the hashtag #KnowYourRights)
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Ed. Note: The Following breaks down the Festival Lawyer’s infographic in more detail:
The “Know Your Rights” infographic – A Police encounter “Flow Chart”
A lot of people write me asking how they should have handled a negative encounter they had with the police at a music festival or rave.
I keep hearing phrases like, “I wish I had known that I didn’t have to make a statement” or “I didn’t know I could say no” or “I wasn’t sure if I had a right to leave or if the cop was detaining me.”
The fact is that you DO have rights in dealing with the police. The “Know Your Rights” infographic is meant to be used as a practical flowchart of what your rights are at every stage of a police encounter.
A COP “STOPS YOU” AT A MUSIC FESTIVAL
The 4th Amendment of the Constitution prohibits “unreasonable” searches and seizures. That means you are supposed to have a right as a citizen to freely go about your business without being randomly detained or investigated. In order to “stop” you, an officer first has to have a belief that you were engaged in criminal activity.
There are 3 levels of police “stops”. At each higher level of police encounter, the police officer has to show more justification as to why he stopped you.
Consensual Encounter – A police encounter where you are not the subject of a police investigation and are free to leave. Officers don’t have to legally justify a consensual encounter because you can leave at any time.
Detention – A police encounter where you are temporarily stopped while the police investigate you for a crime. Officers must have a “reasonable suspicion” that you were involved in criminal activity to detain you.
Arrest – Permanently stopped and on your way to jail. An officer must have “Probable Cause” to believe you committed a crime to arrest you.
You know how H20 can be in three different physical states? (Steam, water and ice if you don’t have your 4th grade science notes handy) Well, the 3 levels of police stops are similar. Each of these levels is sort of a different legal “state” of being. And your rights are different in each of these “states”.
There are some big differences of course. In the H20 example you end up with an ice cube. In the police stop final state you end with a cell mate named “Bubba”.
One of the main goals of the infographic is to give you the right questions to ask so that you will know at any time which level of police “state” you are in. (Get it? police state? See what I did there?).
AM I FREE TO LEAVE?
If you are stopped by a police officer, the first question out of your mouth should be, “Am I free to leave?”
Asking this question gets you an immediate answer as to whether you are legally “detained” or free to leave. It also puts you in the best legal position possible should you later want to challenge the legality of the police stopping you. If you challenge your detention, the officer will have to show a “reasonable suspicion” of criminal activity based only on the facts existing at the moment you said the phrase and he detained you. Nothing AFTER that moment can be used to justify the stop.
Here is a practical example of the use of the “Am I Free to leave” phrase.
“YES” = LEAVE
As you can see from the decision tool, if you get a “YES” after you ask “Am I free to leave? The only “action item” is to LEAVE.
Again, there is a legal reason for this. If you don’t leave immediately when given the chance, a judge may later rule that you were free to leave but that you chose to stay. (In other words, it was a “Consensual Encounter”). As I mentioned above, an officer never has to legally justify a “Consensual Encounter”.
In other words, once you get a “YES”, the best and only advice is “You got to get out of there”
“NO” = DETENTION
A “NO” answer means that you are detained and no longer free to leave. You are enough of a suspect that Marge Gunderson would consider you to be, “fleeing the interview” if you left at this point.
It’s important to remember that officers DON’T have to read you your Miranda rights in a detention. Don’t respond to questions like “What is this?” or “Whose backpack is this? or even something innocent like “How long have you been here?” as they can be legally used against you later.
MUST SHOW ID
Some civil libertarians would argue that you legally never have to show a police officer your ID unless you’re driving a vehicle or you are a passenger on a commercial airline. The problem with that is that a number of states have what are called “stop- and-identify” laws. These laws give cops the authority to make you identify yourself if officers have a “reasonable suspicion” to believe criminal activity may be taking place.
As of 2013, 24 states had stop-and-identify laws. Since you already asked to leave and were told “NO”, the officer clearly thinks he has a “reasonable suspicion” to detain you. To me, it’s too risky not to show your ID (and give your correct name) once detained. But as with everything in this article, do your own research for your state laws and make your own best decision.
WHY AM I BEING DETAINED?
If you are detained, calmly ask, “Why am I being detained?” This can be valuable if you later want to fight your case in court.The answer the cop gives may limit what he can later claim was the reason for stopping you.
It’s important not to use this question as an excuse to start arguing with the cops. I can’t stress enough the prior advice about not talking to the police. People who talk to the cops end up in a legal situation we call “raptus regaliter” (royally screwed).
“AM I NOW FREE TO GO?”
In an encounter with the police, the courts require you to keep asking to leave or you may be deemed to be in a “Consensual Encounter”. If the answer is “YES” then leave. If the answer is “NO” you will need to determine if you are under arrest by asking the following:
“AM I UNDER ARREST?”
“YES” = ARRESTED
“NO” = “FUNCTIONAL EQUIVALENT” (COVER BAND ARREST)
Legally, if a detention goes on long enough, it becomes an arrest even if the officer doesn’t say the magic words “You are under arrest”. Basically, if you keep asking to leave and the cop doesn’t let you go the courts say you are in the “functional equivalent” of an arrest. I call this a “Cover Band” arrest. The officer may not be calling it an arrest, but it sure looks, feels and sounds like an actual arrest.
Whether the officer is calling it a “detention” or an “arrest” as a practical matter you should make the two statements listed at the bottom of the infographic to fully protect your legal rights.
“I’M NOT GIVING YOU CONSENT TO SEARCH MY PERSON OR PROPERTY”
Cops always make it seem like you’re some kind of a criminal if you express the slightest hesitation about having your property searched without a warrant. You can expect to hear an “If you have nothing to hide, why can’t we search your stuff?” type of response from the cops.
Know this…If the police are asking you permission to search you or your property, it usually means they know they are making an illegal search.
The police may have a legal right to search you without your consent. (For example, if you are arrested and the officer had probable cause for that arrest) But what you’ve done by making this statement is preserve all your legal rights and force the police to show they are legally entitled to search you.
“I DON’T WANT TO GIVE A STATEMENT. I WANT A LAWYER”
Cops will say that a person invoking their rights in this way has “lawyered up”. In addition to sounding cool, there is a really good legal reason for “lawyering up”.
As I mentioned above, the police only have to read you your Miranda rights if you are under arrest (or a “cover band” equivalent of arrest). The police can legally question you without Miranda rights in a detention.
In Salinas v. Texas (Jun 17, 2013) 133 S. Ct. 2174 the Supreme Court took that rule a step further. The Supreme Court ruled since it’s legal to question you during a detention it’s also fair for a prosecutor to comment on your silence. In other words the prosecutor can say how suspicious it is that you didn’t respond when a cop made a damning accusation to you like, “I know it was you, Fredo!”
The Court ruled that your silence in the fact of an accusation can be used against you unless you make it clear that you were affirmatively exercising your right to remain silent and have a lawyer present for questioning.
In other words, you have to SAY OUT LOUD THAT YOU WISH TO REMAIN SILENT…which would make an awesome Newspeak poster in Oceania by the way.
VIDEO TAPE THE ENCOUNTER
Recording a police encounter can be one of the most helpful things a festival buddy can do to help a friend being arrested. However, it’s also one of those areas where you can easily end up in legal trouble yourself from taping.
I strongly suggest you review your state’s laws and have an understanding of what you need to do legally before attempting to video the police. Here is a good starting place.
If you feel you can safely and legally video tape the encounter I suggest that you say the following if cops instruct you to turn off the camera.
“Officer, I’m not interfering with you in any way. I am just documenting this arrest. This is a public place and I’m entitled to record this.”
While making this statement, I would make a show of backing up and getting out of the way to prove that you are not interfering but just observing.
Always be polite to the police. If they jam you up get a lawyer and fight it in court not on the street when it’s happening.
This past weekend I was at a festival where cops were claiming that guests forfeited their 4th amendment rights because the festival was hosted on private property. Where does this fit in with the “this is a public place and I’m entitled to record this.” statement.
There a lot of trouble to run into at a festival. Music festivals are breeding grounds for danger.
oops, there is a lot
Reading articles like this saved my butt at a festival this summer. A security guard saw me grabbing something from my crotch and putting it in my pocket as I got careless. He came up and asked me what was in my pocket, and remembering reading these articles from earlier this summer, I simply said “I’m leaving now” and turned around and walked out of the venue, walked back to my RV changed shirts and walked back in 30 minutes later.
Thank you.
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Why would a cop stop me at a festival?
Good explanation in the flowchart. But I never knew that you can refuse a search. Most of the time they search your vehicle and ask you to step out of the vehicle first. So new information!
Regards from Creately
I’m a club guy, not a festival guy. Music sounds better in an enclosed space and I’d rather be in the dark under disco lights than hot summer sun, ugh. Anyway, my question is- are there really that many busts at these friggin’ festivals??
Disconap… a club may fit 500 people. A Festival could have 15000. So based on the amount of people present, yes more arrests.
I’ve seen cops with dogs searching campsites at festivals.
Actually, one correction. Do not show I.D. You are not required to by law, unless they have a reasonable suspicion that you have, or are about to commit a crime. If they ask for ID, reply with “Do you suspect me of having, or about to commit a crime?” If they say no, you reply “Then I am not legally required to present identification.” If yes, have them specify what crime they suspect you of committing, or about to.
If you are being detained they must have reasonable suspicion that you have committed a crime so you need to show and id. If they do not have reasonable suspicion then it is an illegal detainment
So glad to see someone writing about police “authority” to stop someone rather than their “right” to do so. Neither cops nor anyone else have any more rights than anyone else. A cop has the “power” or “authority”, but not the right.
What about foreigners being stopped in the U.S.? Can I use the flowchart in the U.S. w/o being a U.S. citizen?
The flowchart is based on US 4th Amendment law..I have a feeling it’s probably pretty different for Canada. I have a lot of interest from folks who want to do a “festival lawyer” for Canada..(did you know there is one in Australia?) but still don’t know of a good resource to direct you to on that.
I’m not talking about Canada and my rights in Canada. I am talking about non US citizens in the U.S.
I wanted to know, if a Canadian or someone from Europe visits the U.S., can that person still follow that flowchart when being stopped by police?
A Canadian festival lawyer would be amazing, or if anyone has any information to share about searches etc.
When I put the article on my FB I got this comment. Is this true?
Read the back of your tickets, signs at the gates and website information. Generally, by purchasing a ticket or wristband you automatically consent to any search on the property. You also release any rights to the use of your image in photographs or video. Pretty much anything over 5,000 people with a major promoter is going to wash your rights with the ticket purchase.
Yes and no. In ticket purchase scenario, you are generally required to submit to searches and refrain from taping. However, these things apply to the festival and it’s hired or contracted security – not the police. The festival does not, but the police do – have to abide by the 4th amendment. It can be the case that if a festival has both police and private security that the festival personnel can ask to search you – if you say no – you are told to leave – if you do not leave they can escort you out – or request the police to do -since you are now trespassing. In that scenario, the police now have reasonable cause to detain/search/arrest for whatever crime is the equivalent of trespassing. Likewise, in re: taping, if they say no taping, the police can’t arrest you for it, but the festival can ask you to leave, thus re-creating the scenario above.
It will get little murkier for festivals on public ground and those that do not require ticket purchase. When all is said and done – the above chart applies to police, not private security.
This is a pretty good answer by CFseqchi (we should talk!) I would add that this is worth a whole article by itself. Private security doesn’t have to abide by the 4th Amendment UNLESS they are acting together with the police (unified command structure, same communication system) etc. They can certainly require that you be searched once you enter the premises but just because you are on private property is not the end legally. In People v. Hughston 168 Cal. App. 4th 1062 (2008), at the high sierra music festival the court found that even though it was private property they needed a warrant to search someone’s tent at the campgrounds. I personally have won a Motion to Suppress at a local festival that involved a search of someone at a festival where the DA argued “consent” by the ticket and the Judge essentially said “Uh no, you can’t just give up your 4th Amendment rights because of something on the back of a ticket. NOW the bigger question is if they set it up like Costco where you are a “member” and agree as part of the membership you will be searched by private security? That might have a different result. Point is this infographic is an attempt to put you in the best legal position possible to protect yourself legally.
You would still be protected under the U.S. Constitution; it applies to foreign people on U.S. soil, just as it does to citizens.
Should probably learn to spell “consentual” correctly before putting it on a nice graphic like that. Root word “consent.”
ahahahha..thanks for making my day! yes, I could spell it “consentual” like you ..but then we would both be wrong.. http://www.merriam-webster.com/dictionary/consensual
I don’t see why you wouldn’t submit to a search. Most sports arenas I know have metal detectors and cursory searches prior to entering. It’s private property. It’s not public property, so I don’t think everything you stated applies, and when police are generally trying to protect large crowds, searches happen. I don’t really see the problem. For me, I’m not getting arrested dude, I’m not talking back to a friggin police officer and I’m not going to be a smartass when they could put a permanent mark on my record when I’m trying to get a job or something.
Drugs
Well, if you’re selfish and awful enough to purchase illegal drugs, you should be prepared for the consequences of possessing them. If, on the other hand, you haven’t done anything wrong, then you have nothing to hide.
i’ve told police multiple times in the past “no” when they asked if they can search me. i’m not going to let them have their way with me (pretty much what you described) and walk all over my rights. if i haven’t done anything wrong i should not be required to have my time wasted and privacy invaded because they have nothing better to do. bend over if you want, i refuse.
Linda, I think Americans who tell other Americans what they can and can’t do with their bodies AND keep a disastrous drug war going despite the consequences AND encourage Americans to not learn their Constitutional rights because “If you haven’t done anything wrong you have nothing to hide” are really the “selfish and awful” ones.
just so the people of PA know, apparently it was just passed that the police can search your vehicle without a warrant. im not sure if that also includes your person as well but id assume so. my question is if the 4th amendment covers illegal searches how can a state law basically say its ok? american law is confusing idk how you guys do it lol.
So what happens is that a State individually can give MORE rights than a federal court but can’t ever give less. So PA just went back to the “normal” rule that car stops don’t require a warrant.
I really like the chart! Now, I need to go read a bit more on Canadian laws and see if there are any major differences… Even though I’ve never been arrested, I really agree with the “It’s better to know your rights and not need them, than to need your rights and not know them.” statement.
Thanks for sharing!
Sirus
The flowchart is based on US 4th Amendment law..I have a feeling it’s probably pretty different for Canada. I have a lot of interest from folks who want to do a “festival lawyer” for Canada..(did you know there is one in Australia?) but still don’t know of a good resource to direct you to on that.
Ok, but what about foreigners being stopped in the U.S.? Can I use the flowchart in the U.S. w/o being a U.S. citizen?
The Canadian Criminal Code can be found here : http://laws-lois.justice.gc.ca/eng/acts/C-46/index.html… 😀
Sirus
am I free to leave?
Reblogged this on Terry Gotham and commented:
This is one of the most important aspects of the scene right here. Knowledge leads to power. There is going to be a severe amount of security clamping down on parties & festivals in the coming year or two. EZoo is gonna have double the drug dogs, invasive pat downs & a whole lot of TSA-style bullshit. Ultra is going to have the same, as it needs to ensure they convince the Miami city government to let them keep doing awesome shit in the downtown area. My excellent friend The Festival Lawyer has been working on this for quite some time, and it’s got everything you need to know right in a handy little infographic. Print it out, keep it in your wallet, show your friends, and most importantly, READ THE THING, and know your rights. This is something that I’m going to be reposting at various points over the festival season, so expect to see it again. Thanks again to the Festival Lawyer & keep up the great work!
Reblogged this on ravelrie.