10 tips for safely navigating an entrance search at a festival

July 2, 2014 by 12 Comments

bonnaroo-(festival-snob)_postPhoto by FestivalSnob.com // Written by The Festival Lawyer //

It is just about impossible to enter a music festival, concert, rave or any kind of a major sporting event these days without being searched as a condition of entry.

This isn’t likely to change. If anything, the trend is towards more security at big events. For example, Electric Zoo recently announced new security measures including drug-sniffing dogs stationed at all entrances and the use of undercover narcotics officers to patrol the festival grounds.

Obviously, festivals need to be able to search folks for weapons and keep people safe. But what about the festivalgoers? Do you have any rights if a search goes too far or you run into an abusive security guard? Or did you give them all up at the entrance?

Here is some legal knowledge (and practical tips) that can help you navigate that entrance search like this guy:

Strutting-Leo

TIP #1: KNOW YOUR RIGHTS

In general, The 4th Amendment prohibits the police from randomly stopping you and searching you.

If you are stopped at a festival, I’ve advised people to ask the question “Am I Free to Leave?” to determine if they are being detained. If you are detained, you should never consent to a search of your person or property by the police. Instead, keep calm, show your ID and continue to ask if you are free to leave. You should always insist on your right to remain silent and ask for a lawyer. Whenever possible, have your festival buddy witness or document the encounter.

The following infographic lays out these rights in a simple “flowchart” form.

Festival_Lawyer_Infogrpahic-A_Cop_Stops_You_At_A_Festival

From a legal standpoint, you clearly have these rights once you have passed through the entrance search. But what rights apply when you first are searched entering a fest?

TIP #2: SEARCHES BASED ON TICKET LANGUAGE ALONE ARE GENERALLY ILLEGAL

Almost every festival has ticket language and signs at the entrances stating that you are agreeing to be searched as a condition of coming into the venue. For example, here is Electric Zoo’s ticket language:

“Your use of the ticket is contingent upon your unconditional and voluntary acceptance to be searched…prior to your admission to the venue and/or at any time thereafter.” (Electric Zoo)

This is what is called an “Implied Consent Waiver”. “Implied” meaning that you knew you were going to be searched and decided to come in anyway.

Here’s the thing. Courts really don’t like any kind of an “implied” waiver of Constitutional rights. In fact, courts often throw out these kind of implied waiver searches when they are challenged by festivalgoers.

Courts look at several factors to determine if an implied consent search is legal:
1) Did the sign and ticket language make it clear you were going to be searched?
2) Were you deprived of a benefit if you refused to be searched?
3) Did you know you had a right to refuse to be searched?
4) Did you demonstrate “affirmative conduct” agreeing to be searched?
5) Was the search necessary to a “vital interest” of the festival?

The point is, it is NOT legal for festivals to just put up a “You agree to be searched” sign up at the entrance and then conduct a blanket search without any limitation. The courts instead look at what is being searched for, what you agreed to in your ticket and how the search is being conducted on a case by case basis.

Crowds

TIP #3: “LIMITED” ENTRY SEARCHES FOR A “VITAL SAFETY INTEREST” OF THE FESTIVAL (LIKE PAT SEARCHES FOR WEAPONS) ARE GENERALLY OKAY

Normally, private security has a right to conduct a reasonable search on you as a condition of entry BEFORE entering private property if they are looking for weapons. This probably isn’t a constitutional violation as long as it’s made clear to you that you’re free to walk away.

Courts have long recognized that festivals have a “vital interest” in keeping their patrons safe from weapons and other dangerous items knuckleheads might bring in. Because of this, courts have allowed “limited” searches if they are for the purpose of looking for weapons and projectiles and dangerous items. (“Limited’ meaning a pat down search for large/hard objects or screening through a metal detector.)

That’s reasonable right? I mean, I love music festivals. But I REALLY love the festival and EDM community and want people to be safe. Any responsible festivalgoer should want a safe place for all of us to play. Even if this wasn’t the law, I’d agree to a “limited” search like this because nobody has any business bringing a weapon into our space.

(Fun fact: The song “Smoke on the Water” by Deep Purple refers to a fire started during the Montreaux Jazz festival by “Some stupid with a flare gun.”)

TIP #4: OVERLY “INVASIVE” PERSONAL SEARCHES ARE NOT OKAY

In State v. Iaccarino, 767 So. 2d 470 (Fla. Dist. Ct. app. 2000) the Court struck down “invasive” entry searches at the “ZenFest” festival. (“Invasive” is legalese for “Wait, you touched people where?”)

I mentioned above that festivals have to show that their entrance searches are being done for a “vital interest” of the festival to be found legal.

In this case the court rejected the idea that keeping drugs out was enough of a “vital interest” to allow this level of intimate and personal searching:

“If this court permitted the illegality of the substances themselves to rise to the level of “vital interests,” then a similar sign posting would justify any search of any person at any time and to any degree. For example, such a “vital interest” could seemingly justify a search at a high school football game, where each student, teacher, and parent could be directed to take off shoes and socks, pull out their bras, empty their pockets and the contents of wallets, and have their crotch and genitals frisked.”

In other words, courts draw a distinction between limited searches for weapons and “invasive” personal searches for drugs.

Part of the problem in the Iaccarino case was how far they were going in these searches. They were basically treating the patrons as if they were being booked into a jail. Searches included things like “genital taps” and “crotch frisking”(!?) (Which probably is not nearly as much fun as the name suggests.)

As a practical matter, often it’s not clear whether the searcher thinks they have the right to search you in a more personal way or if they are asking for permission to do so.

Asking in a calm, polite way, “Are you asking for my permission to search further?” or “ Do I have a choice to be searched in this way?” can clarify if you are being “ASKED” for a further search or being “ORDERED” to submit to a more invasive search. You can then make an informed choice as to how to handle that situation.

Security-Guard-at-Ultra

TIP #5: SO FAR, FESTIVAL ENTRANCES HAVEN’T BEEN DECLARED A “4TH AMENDMENT FREE” ZONE LIKE AN AIRPORT

There are certain places where courts have said the danger of terrorism is so high you are essentially entering a “4th Amendment free” zone and can be searched at will. The most typical example is an airport.

In a 2006 Valparaiso Law Review article the author recaps all the cases I mention above and notes that currently there is no legal way to randomly and invasively search people entering a sporting event.

Rather than thinking, “Oh that must be because WE FREAKING LIVE IN AMERICA” he argues that these cases are old and that after 9/11 we should start treating festivals and sporting events like airports.

In fact, the TSA has already assumed that festivals are like airports and sent its VIPR units out to randomly search festivalgoers.

A conservative court in 2014 might agree with this logic and treat festivals and sporting events like airports. Or after all of the overdoses we see at events a court might change its mind and now consider searching for drugs a “vital interest” for festivals. But it’s important for festivalgoers and promoters to understand that is NOT the law currently.

TIP #6: ACT LIKE A FESTIVAL PRO

You can improve your experience navigating these searches by adjusting your attitude and demeanor. I call it “acting like a festival pro”.

Keep the line moving. Be attentive. Have your ID out and ready, purse open, pockets empty, etc. Maybe skip the “Hey buddy, this is the most someone has touched me all week” joke they’ve heard a million times.

First impressions are important – The security guard will subconsciously make a split second decision about you. Paint the picture you want them to see. Present yourself in a non-threatening manner. Make eye contact. Be friendly. SMILE. Heck you are about to go into an awesome life experience, why wouldn’t you be smiling?

I always show deference to the security staff and say things like, “How are you doing today, sir?” Remember, they are people too and they are just doing their jobs. Many times the staff will be attending the festival too, and they aren’t trying to make your life difficult. You can be calm when you know in the back of your head that if something goes wrong you know your rights and how to enforce them.

And of course, don’t bring in dangerous items to the festival (do I really need to list that?)

Search-Party

TIP #7: IN PRIVATE SECURITY SEARCHES ASK TO BE “EJECTED” RATHER THAN ARRESTED

The 4th Amendment prohibiting unreasonable searches and seizures normally only applies to private security guards when they are acting as “agents of the government.”

To decide this, courts look at whether there is such a coordinated effort between real cops and private security that they are the same. (Things like a unified command structure, same communication system, coordinated arrests etc.)

The bad news is that if private security officers aren’t found to be “government agents,” you can’t get a judge to throw out the evidence against you in a criminal case.

Technically, a private security guard only has the right to arrest you the same way a private citizen does. (A so called “citizen’s arrest”). What I’ve seen as a practical matter is that private security will typically do the initial search and then call the real police in if they find something interesting.

But there are cases that say that private security is only allowed to search you for the purpose of deciding if you should be ejected or allowed in. And if you have something you aren’t supposed to, you can withdraw your consent and ask to be ejected instead.

The Nebraska Supreme court talks about this in a case called, State v. Smith, 782 N.W.2d 913 (Neb.2010)

“The State argues that Smith impliedly consented to the search because he was aware that Club patrons were subject to a pat down and search. That may have been the case when Smith got in line, but Smith withdrew his consent before his pocket was searched. The Club may have been free to turn him away but it was not free to turn out his pockets.”

If private security feels something in your pocket and asks to see it…you don’t have to show them. Respectfully and politely say,

“I am withdrawing my consent to any search. I am asking that I be ejected and my ticket price refunded.”

Drug-Dogs

TIP #8: DRUG DOGS SUCK – AVOID THEM

Here’s the thing, you don’t have a lot of rights when it comes to drug dogs. In Illinois v. Caballes, the Supreme Court ruled that police do not need reasonable suspicion to use drug dogs to sniff a vehicle during a legitimate traffic stop.

The Supreme Court followed that up with the outrageous Florida v. Harris case. Here, the Court rejected the idea that police should have to show that drug dogs are reliable evidence finders but just need to show they had the proper training.

Which is unfortunate because these dogs are not reliable. In their dissenting opinion of Caballes, Justices Souter and Ginsburg pointed to studies showing that drug dogs frequently return false positives (12.5-60% of the time, according to one study). In fact, a Chicago Tribune field study revealed that drug dogs are more often wrong than they are right when alerting for drugs in vehicles.

This poor track record can be due to poor handlers, poorly trained dogs or even there can be officers who train their dogs to falsely “alert” on suspects.

There aren’t many tips to handling drug dogs but my friends at “Flex Your Rights” list a few here.

TIP #9: HANDLE INAPPROPRIATE SEARCHES POLITELY BUT FIRMLY, GET A SUPERVISOR INVOLVED

If you run into a private security guard who is conducting an overly invasive or inappropriate search, alert a supervisor. Have a friend with you document the encounter and let the supervisor (as well as the festival promoters) know that you have been handled in an inappropriate fashion. Most festivals take these allegations seriously and will act to fire unprofessional security guards.

Politely but firmly object to any violation of your body. Simple statements of fact are probably best

Example, “What you are doing is making me uncomfortable and I you want you to stop. I want to see a supervisor.”

If you are not getting any satisfaction from the festival or the promoters, consider warning others about the bad behavior of this particular fest. (I had a follower suggest tweeting the hashtag #myboobsmybody to call out festivals if they become “Gropefest 2014”)

TIP #10: COMBINATION ANNOYING LEGAL DISCLAIMER AND HELPFUL LEGAL BRIEF

I am a lawyer, I am just not YOUR lawyer. My Facebook page lists me as a “Fictional Character.” That’s because it’s best to see me as sort of a combination legal resource/legal spirit guide/festival consigliere rather than someone giving you specific legal advice.

So, I can’t give you specific legal advice. But what I can do is provide a resource for you.

The awesome members of the #festlaw crew researched a lengthy brief that might be a good resource for your attorney if you are ever have the misfortune of being arrested for any sort of low level, non-weapon situation. I’ve included it here as a resource. You may reproduce fully and in any manner you or your attorney sees fit.

So, as your Legal Spirit Guide, I advise you, as always, to make good decisions, party smart, and help each other out. YOU are what makes this community so great, and I expect to see you all smiling and hi-fiving me at your next festival.

Festival-Lawyer

Filed Under: Featured, Festivals, The Festival Lawyer Tagged With: , , , , , ,

Trouble in Transit: What to do if police stop you on the way to a music festival

December 4, 2013 by 9 Comments

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When Phish played at Outside Lands a few years back, I happened to run into a very cool group of their fans waiting for the shuttle bus. They told me they were from New York and were following the band across the country. We talked about how followers of the band really tried to welcome newer fans and teach them some of the traditions and ideals of being a “Phan”. They ended by telling me a few “war stories” from different tours they had followed.

I love people who are this passionate about music. So this article is for all you Phans, Bassheads, Pretty Lights Family members, DMB and Widespread Panic followers and all you other “festies” who are going to be logging serious miles as you travel to your next show or festival.

Or to put it another way — Here is what to do if the police stop you ON YOUR WAY to a music festival.

Come-Back-with-a-Warrent

TRAVEL TIP #1: At your home you are a “King in a Castle”

Wait, if I’m writing an article about travel issues, then why am I starting with your rights when the police come to your house?

Because the question of what rights you have at a particular location (like whether the police need a warrant or what’s considered an “unreasonable search”) often depends on how much the location is like a home. The law calls this a “reasonable expectation of privacy”.

Your privacy rights are at their strongest when you are in your own home. In fact this tradition is so strong it is sometimes called the “Castle Doctrine”. This come from the English Common Law phrase “An Englishman’s home is his castle.” (English Common Law is sort of the “Old School” or “Vinyl” version of American law.)

You probably already know that the police must get a search warrant before they are allowed to search your home unless there is some kind of legal exception like “exigent circumstances”.

What you also need to know is that one of the other most common exceptions where the police don’t need a search warrant is when the owner gives consent or permission for the cops to search the house.

Cops actually kind of hate getting search warrants. It’s a little bit of a pain for them to do as a practical matter and they aren’t keen on running their probable cause by a Judge. So cops will often try to avoid the need for a search warrant by doing what they call a “Knock and Talk”.

Like the trailer for a new Jennifer Aniston comedy, a “Knock and Talk” seems like it would be a lot more fun that it actually ends up being. A “Knock and Talk” involves the cops knocking at your door and asking, “Say, if you don’t have anything to hide, how about we come into your house and take a look around?”

In other words, like vampires, cops can only come into your home (without a warrant) if you invite them in.

Okay, as the Arctic Monkeys song says, “Perhaps vampires is a bit strong,” but you get the point — If an officer wants to search your home you should assume you are a suspect in a criminal investigation. Act accordingly. Remain silent and ask for a lawyer. The only thing you should say is:

“Officer, I can’t let you inside without a search warrant.”

Don’t worry if you can’t remember this phrase, you can get a doormat to remind you.

Fear-and-Loathing2

TRAVEL TIP #2: Hotel Room Searches

“Our hotel room looked like the site of some disastrous zoological experiment involving whiskey and gorillas.” –Hunter S. Thompson, Fear and Loathing in Las Vegas

I recently had some folks tweet me to say that they were staying at a hotel for a concert and cops were basically going up and down the hallways of the hotel banging on doors and saying “Police, open up” and randomly searching rooms. They asked what rights they had in that situation.

The legal issue here is…you guessed it…whether you have a “reasonable expectation of privacy” in your hotel room.

To determine if you have a “reasonable expectation of privacy”, the law asks questions like:

  • Are you there lawfully?
  • Is it private property?
  • Do you have any ownership rights there?
  • Can you eject people from the location?
  • Can you yell “Hey you kids get off my goddamn lawn!?”

(Hint — one of the prongs of this test was really just a joke to see if you are still paying attention.)

Generally, if you are using your hotel room in an ordinary way, then you have a limited right to privacy in that room. In other words, police will usually need to get a search warrant.

On the other hand, if the hotel believes that you are using your room for illegal activity, then hotel management has the right to enter and search your room without your permission.

Importantly, the manager of the hotel can’t give the police permission to search your room. But there are all kinds of other ways cops can search without getting a warrant. For example, if you open the door and people are openly using drugs in “plain view” of the cops, they can probably search. Or if they do a “knock and talk” and someone else in your room says “come in” they can probably search.

Bottom line: Don’t use your hotel room like Dr. Gonzo (i.e. openly engaging in illegal activity). Tell the folks staying in your room to be cool and not to give anyone permission to come into the room. Don’t consent to any searches and don’t be tricked into thinking that management can somehow give the police permission to search your room.

Even though it’s not your actual house, you still have a right to be free from harassment and random searches of your room without a warrant. Just like Borat when he entered his hotel room and found a chair, you too are a “King in your Castle” in your hotel room.

Jay-Z_opt

TRAVEL TIP #3: Car Stops…Or maybe Jay-Z actually had 100 problems.

People constantly ask me what to do if the police stop their car. Although I love the song and I think Jay-Z is a genius, people are also constantly misquoting his song “99 problems” for one of the biggest legal myths out there.

The second verse of the song is fictional, but based on a true story. The cops want to search his car (loaded with cocaine), he refuses, they wait for drug-sniffing dogs that never show up, and Mr. Carter gets away with it. During this conversation, Jay-Z says:

“Well, my glove compartment is locked, so is the trunk and the back, and I know my rights so you gon’ need a warrant for that.”

The good thing the narrator does in this song, and something YOU should always do, is refuse to give the police consent to search his car. Specifically, he tells the officer “No, I don’t consent to any search.”

But unlike what the song suggests, the police never needed a warrant in the first place. The courts have declared that there is an “automobile exception” to the normal requirement of a search warrant. That’s because cars are very mobile and can easily be moved to destroy evidence. Also, cars are highly regulated and usually in a public place. Cars in public places without privacy rights = no “reasonable expectation of privacy”.

Police must still have some facts or evidence to believe you are involved in criminal activity (probable cause) or they can’t search the car. This could be the sight or smell of contraband or a weapon in plain view.

Although not nearly as catchy, the legally correct phrasing of that verse should have been “I know my rights so you gon’ need probable cause for that.”

By the way, Jay-Z wrote in his book that the “bitch” in question is not an unpleasant woman but a drug-sniffing dog. The “100th” problem would have been the cop using a “bitch” (drug dog) to search his car.

If so, he’s lucky the year “was 94” when his “trunk was raw”. That’s because after that, in a case called Illinois v. Caballes, the Supreme Court ruled that the 4th Amendment doesn’t EVEN APPLY to the use of drug sniffing dogs during car stops. So, if cops have you legally stopped they can freely use a dog to search.

I’ve got a whole future project I’m working on that is going to cover your rights in a car stop in a lot more detail. But here is an excellent summary from the folks at Flex Your Rights which gives you plenty of information about how to handle yourself if the police stop your car.

Tents_opt

TRAVEL TIP #4: Temporary Homes Like Campgrounds and Motor Homes

Campgrounds Searches

In People v. Hughston 168 Cal. App. 4th 1062 (2008), the court was asked to rule whether the police needed a warrant to search a tent that was put up within a designated site on land specifically set aside for camping during a music festival.

The court found that the defendant did have a “reasonable expectation of privacy” in the tent and that therefore a warrant was needed under the Fourth Amendment. The court added, “One should be free to depart the campsite for the day’s adventure without fear of this expectation of privacy being violated.’” (Hughston, at p. 1070)

In other words, because the person was there lawfully, had the right to kick others off the property and had ownership rights over the tent, it was more like a house or a hotel room than a car.

Of course, things might be different depending on the festival and the location. I mean, what if the festival organizers tell you that this is “private property” and instruct you that you have no ownership or privacy rights there at all? Or what if the promoters announce openly as you arrive that they are giving the police permission at any time to search your tent?

When it comes to festival campgrounds you really need to do your homework. Read the festival’s website. Look at what your ticket or other contract with the festival says. Ask past festivalgoers what their experience has been. Is the festival known for people being harassed and aggressively searched for no reason?

In other words, you aren’t really a “King in a Castle” in this situation. But you may be at least a prince or some lesser royalty if you know your rights and educate yourself.

Festivalgoers should insist that the festivals they go to are safe and that security concerns are handled in a professional and courteous manner. In return, festies can help upgrade the experience by being fun, positive audience goers who police and are responsible for each other’s safety.

Motor Homes

In California v. Carney 471 U.S. 386 (1985) the US Supreme Court ruled that motor homes are to be treated like cars and that the “automobile exception” applies.

In other words, after this Supreme Court ruling your privacy rights in a motor home are “NO MORE!” (yes, that’s a “Winnebago Man” reference.)

Airports

TRAVEL TIP #5: Airport Searches

As you might imagine, you have zero “reasonable expectation of privacy” at the airport. A TSA airport security zone is basically a way more legally serious and federalized Costco. Only it’s the Department of Homeland Security that’s checking your receipt and going through your shit on the way out. Transportation Security Agency (TSA) agents are legally permitted to search you and your belongings without a search warrant or probable cause or any other legal justification.

The question I get a lot is whether you can take “legal” or medicinal marijuana on a plane with you to your next festival.

This is a weird legal area. That’s because medical marijuana is legal in the state of California but Federal Law makes marijuana a Schedule 1 Controlled substance. The FAA and the Department of Homeland Security are under Federal law, so travelling with medical marijuana or marijuana from a “legal” state (about 20 states at this point) puts you into a grey area. It’s legal under state law, but illegal under Federal Law.

The TSA website says this:

Whether or not marijuana is considered “medical marijuana” under local law is not relevant to TSA screening because TSA is governed by federal law and federal law provides no basis to treat medical marijuana any differently than non-medical marijuana.

Ahh, so travelling through the airport is a strict violation of Federal law and you will be automatically arrested, right? Well maybe not.

The TSA also adds:

The discovery of marijuana in a carry-on or checked bag does not automatically mean that a passenger will be turned over to local police, and the agency adds that “the final decision rests with TSA on whether to allow any items on the plane.”

You read that right — whether you are using medical marijuana to treat your “backiotemy” or you are merely an “enhancement smoker”, you might be able to take it on the plane with you.

On the other hand, it might be a seriously bad experience for you if you get the wrong TSA agent. I mean maybe you can check your bag with pot or try to carry it on with your medical marijuana card. But why would you risk it? I would put this in the “unnecessary risk” category.

(Random Fact: In 2011, TSA agents at Denver International Airport found bags of weed in rapper Freddie Gibbs’ luggage and simply left him a note reading “C’mon son.”)

The ACLU also has a “know your rights when traveling” page that has a lot of additional resources.

AT THE FESTIVAL

Yay! You made it. So what do you do if you get all the way to a festival and the cops stop you? Heck, you should already know the answer to this.

The-Festival-Lawyer-Five-Tips

If you want a ”Tip Card” to take with you to remind you what to do if the police stop you your next festival, you can download it here or contact me on Twitter.

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Filed Under: Editor's Picks, Featured, Festivals Tagged With: , , ,

The Festival Lawyer: What To Do if The Police Stop You at a Music Festival – Part 2

October 9, 2013 by 35 Comments

Festival-Lawyer-PART2

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Let’s face it. Sequels suck. The only exceptions are Godfather 2, Aliens (Game over man!) and Paul’s Boutique by the Beastie Boys.

On September 25th, I published an article with Showbams entitled “What To Do if The Police Stop You at a Music Festival“. If you haven’t read it you can find it here.

That original Showbams article started getting reblogged on other sites and tweeted and shared and re-shared on Facebook. Ultimately, it ended up going “viral”.

How viral? Well, the article has had over 250,000 unique views. It ended up receiving over 30 thousand Facebook likes. But I knew we were truly viral when someone in Australia asked me, “Is there an Australian version of this article that explains Australian law?”

If you’ve read this far, I know you think I am about to pull a Kanye and announce that I am now a “A Legal God” and want to be referred to as “Festival Yeezus Lawyer” from now on.

Sadly, no. I am not quitting my day job. However, I think the article went viral due to the fact that “doing whatever the police tell you” is not really what Jefferson had in mind when he came up with that whole Bill of Rights thing. And because we all recognize that the Founding Fathers wanted an educated, empowered citizenry who kept an eye on their police. And because a heck of lot folks have found that getting into a bad situation with a cop and not knowing your rights is one of the scariest things that can happen to you at a festival.

So despite the obvious danger, I really think a sequel is needed to talk about the great comments and reactions the first article generated. Wish me luck.

ADDITIONAL TIP 1: Educate yourself on how to legally record cops in your home state.

I had a LOT of lawyers in other states write me to tell me I had given bad advice about videotaping police making arrests. In particular I had several lawyers tell me that my advice was going to get someone going to Lollapalooza arrested. Their point was that Illinois had a law making it a felony to record video of an encounter with a cop. Several other attorneys pointed out that their own states had similar “wiretapping” laws.

Nice try, but when it comes to the Festival Lawyer, “There can be only one” (*Highlander theme plays*)

The actual law in this area is that in Illinois (home to Lollapalooza), the American Civil Liberties Union recently won a challenge to this law. A federal judge issued a permanent ban on enforcing the law. Also, almost every state has an exception for videotaping where there is no “reasonable expectation of privacy”.

I started to write up a little clarification of different State laws in this area and give some tips on videotaping the police. But one of the great things about this article was that it caused me to finally get to talk to the amazing Steve Silverman at www.flexyourrights.org.

Turns out he had already written a great article explaining EXACTLY what you need to know to record the police in any state and in any scenario.

However, this is an excellent reminder to always do your own research and find out the law in your home state. I am a California lawyer and your state may have very different laws. So even though I just teased them slightly, I want to thank the out of state lawyers who took the time to contact me. Please keep the comments and questions coming.

ADDITIONAL TIP 2: Recording cops? There’s an app for that.

Several people also pointed out that there are numerous apps that allow you to upload your videos to the “cloud”. (For the purposes of this article, let’s just collectively pretend that I know what the cloud is and how it freaking works rather than get ourselves bogged down in unnecessary details.) The point is that you may need to have your video of the cops instantly uploaded to a secure location so that you have it in case your phone is taken from you or damaged.

As commenter “sarahrwilson” wrote:

As to making a video recording, the key is to also stream it from the phone so regardless of what the police do to the device, there will at least be a copy of the video they can’t touch. The ACLU of NJ has an app for I-phone or Android that does exactly that.

The ACLU has provided a collection of Apps on their website that lets you upload cell phone videos to the cloud immediately.

Festival Lawyer Protégé Tip: At the same time you download your Festival’s app, download the ACLU ‘cloud’ app, just in case.

ADDITIONAL TIP 3: These are “Break Glass – Only Use In An Emergency” tips.

A few members of law enforcement wrote in to point out that taking an immediately aggressive tone could actually inflame the situation:

As a police officer, I initially read this on the assumption I was looking at another story of how to “politely disrespect” officers (LEOs). I was pleasantly surprised to see that this was, in fact, a well-written article by an educated member of our society that gives valuable information on how not to become a victim of over zealous officers. That being said, I’d like to add that all of these tactics are great if you aren’t doing anything wrong; however festivalgoers and the likes should know the reason LEOs are at these events is ensure people have a safe and fun time. If you’re actually doing wrong, these tactics only stall the inevitable and eventually, you will be arrested and face the courts for your misdeed.

Also, recording an event does set the tone (from an officer’s point of view) that you are being non compliant and confrontational. Exercise your own good judgement, and don’t get excitable. Much like the open carry activist, if you handle law enforcement with respect, they will most likely return the favor.

I mainly quoted the above comment because it makes me look good. But besides that, it makes a valuable point. If I could add just one thing to the original article it would be that these tips are essentially a “BREAK GLASS – USE IN CASE OF AN EMERGENCY” toolkit.

I think it was implied before but let’s add a step zero – be nice and treat the cop like a fellow human being. Personally, I hate when people wear “fuck the police” shirts to a concert. It’s not how I feel. And it sends a super negative vibe and message. I hold a huge amount of respect for the police and for the law. But I am also an Educated, Empowered, Positive US citizen. That means I love my Country, and want to make her better, but I don’t necessarily trust all of her employees. The comments page is FULL of real life innocent festivalgoers who ran head on into a bad situation: A sexist cop. A racist cop. An overly aggressive cop. A cop who didn’t like someone’s sexual orientation. Or a cop who just wanted to fuck with someone. (Not to get too legal or technical with you). You need to be prepared for THOSE situations.

All of that brings me to my final tip…

ADDITIONAL TIP 4: Educate and empower yourself, even if you don’t ever plan on doing “anything wrong” at a festival.

In some ways, Festivals can be kind of a clash of two worlds.

Cops see themselves as being present at Festivals to keep the peace, and to keep people safe. Festivalgoers see fests as a playground that consenting adults can attend, and the normal rules of society don’t necessarily apply. When you add in some super crazy choices we have made as a society about drug laws, there is always the potential for things to go really badly, really quickly.

That’s because there is a small percentage of cops who feel the drug war really is a war. And in wars, normal rules don’t apply. (People use the phrase “All’s Fair in Love and War” for a reason.) Added to that are police agencies who are not there to “keep the peace” at all. They are there instead to “keep the quota” and make arrests for stats. One of the many examples from the comments to the article should suffice:

Wish I had seen this a few months ago! After leaving (a music festival in an RV my husband and I were pulled over for an “Illegal lane change”. After the cop asked a bunch of questions, he nicely asked if he could take a look inside to make sure we didn’t have any “weapons or dead bodies inside”. Of course we stupidly said yes…becuz we didn’t want him to think we had either of these things inside. Upon entering the RV, he claimed that the straws in our garbage can are considered “paraphernalia” so he then had the right to search the entire vehicle. He made us stand 50-feet away while we watched him take apart the RV with an electric drill. He dumped out all my vitamins and medication into one big pile on the floor, open up all my cosmetics, went through my dirty (personal) clothes, dumped out all our food, and tore apart the lining on our RV rental. He then gave us tickets for the straws since in the state of Arkansas, “paraphernalia” is a crime. We didn’t argue or say anything, figured that was in our best interest. But because we (live out of state) we couldn’t exactly travel back to Arkansas to defend ourselves. We had to hire a local lawyer (that never met us) to defend us. My husband got the charges dropped against him, but the cop was adamant that one of us get charged with paraphernalia – so lucky, I am a mom, and had no record. I was coming from a music festival in an RV. Everyone I spoke to told me we should have NEVER let him search the vehicle, but I didn’t know my rights or the law. We were just scared.

So at this time, let’s all repeat the Festival Lawyer’s motto together:

“Better to know your rights and not need them, than to need your rights and not know them.”

More than anything I wanted to write a sequel so I could have a chance to thank you all. The idea of a legal article with zero cats in it going viral is seriously insane. But it did. And because of that, I got to meet a bunch of amazing people and had some really cool conversations. Believe me when I say I enjoyed being the “legal advice meme” for my entire 15 seconds (that’s not a typo) of internet fame.

Next Column: How to “upgrade” your entire Festival experience without spending a dime.

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Filed Under: Featured, Festivals, The Festival Lawyer Tagged With: , ,

What to do if the police stop you at a music festival

September 25, 2013 by 280 Comments

Festival-Lawyer

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I know what you are thinking. What the heck’s a Festival Lawyer?

Is it a Public Defender who helps you out if you get arrested at a concert? No. (Although, to be honest, I wish I had thought of that as a job option after law school).

I’m a criminal defense attorney with a background as a former prosecutor. But I also have a background as a drummer, a DJ, and avid festivalgoer. The idea behind “The Festival Lawyer” column is to combine these backgrounds to give you legal and practical advice that will make you a safer, more responsible festivalgoer.

Advice like how to protect your rights if the police approach you at a concert. Or how to recognize the symptoms of a drug or alcohol overdose. We will talk about things like California’s Medical Marijuana laws or what to do if stopped for a DUI on your way to a concert. But mainly, the column will be focused on how we can make the Festival Experience work better for everyone as a more responsible, positive community.

As an aside, I’ve noticed that as soon as I start talking about knowing your rights, a certain percentage of people start complaining that I am somehow “teaching people how to commit crimes.”

This is dangerous nonsense. We don’t live in a police state (well, not yet anyway). As citizens it is not only our right but our duty to know and defend our Constitutional Rights and keep an eye on the police.

Anyway, let’s start with a hypothetical situation where the police stop you out of the blue in the middle of a music festival and start questioning you. They don’t say why they are stopping you but just immediately ask permission to search your person and backpack.

What should you do?

1. Like the Clash said, “Know Your Rights.”

Okay, quick criminal procedure tutorial.

In any encounter with the police, a Judge will be looking after the fact at whether the police had a right to stop you in the first place. This is because the 4th Amendment of the Constitution says that you have a right as a citizen to freely go about your business unless the police can show they had a belief you were engaged in criminal activity.

What the police have to show to a Judge later depends completely on whether the Judge finds that you were being “arrested”, “detained” or were “free to leave”.

If the police arrest you, they have to show they had “Probable Cause” to believe you were committing a crime.

On the other hand, the police will probably argue that they weren’t arresting you but just “detaining” you. A “detention” is a situation where the police stop you briefly while they investigate a crime but haven’t arrested you yet. In a detention, the police have a much lower burden of proof. They only have to show a “reasonable suspicion” as to why they were detaining you. Or the police may argue that their entire contact with you was just a “consensual encounter” where you were free to go at anytime. In a consensual encounter, they don’t really need to justify why they stopped you because they were just talking to you and you were “free to leave”, (Because people always feel free to walk away when contacted by the police, right?)

2. Remember the Festival Lawyer’s Key Phrases.

So knowing the above, what should you do If a cop stops you?

The first question out of your mouth should be, “Am I being detained?” Then, “Why? What am being stopped for? Am I free to go, or am I under arrest?”

Memorize this. Repeat it out loud: “Am I being detained? Why? Am I free to go, or am I under arrest?”

Yes I am aware that like the cop in 99 Problems, the cop may not appreciate you being so “sharp as a tack” and view you as a potential troublemaker.

So your job in this situation is to keep calm and cool. Be respectful but clear and firm in what you are saying. It is completely reasonable (and legal) to ask why you are being stopped and whether you are free to go. By asking from the start if you are under arrest or free to leave you are forcing the officer to tell you exactly what is happening and whether you are a suspect.

3. Miranda Rights: Myths vs. Reality

One of the most common urban myths out there is that the police have to read you your Miranda rights or the arrest gets thrown out of court.

Not true. The police don’t have to read you these rights. In fact, the police have the right to completely lie to you in any interview. The only time they have to read Miranda rights is if:

  • A) You are under arrest
  • B) They want to use a statement you made after being arrested in court against you.

The Right against Self Incrimination is in the Bill of Rights for a reason. USE IT. You should NEVER give a statement to the police without a lawyer. Period. No exceptions.

In the above scenario, questions like “whose backpack is this?” should be answered with a firm, “Officer, I am choosing to remain silent. I want a lawyer.”

4. Do not give the authorities consent to search you.

One other major Constitutional right you have is the right to be free from an unlawful search of your person and property.

So lets say you are already in a Festival when the police approach you. They won’t let you leave and ask for permission to search your backpack. (Obviously, security has a right to search you as you enter a festival and go through their initial security screening.)

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 verbal approach 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. Let that sink in for a second. When the police ask you “Can I search this bag?”, they KNOW they are asking you to let them make a search they are not legally entitled to make.

My advice? Respectfully tell the police officer, “I’m not giving you consent to search my property.” If they ask what you have to hide, don’t argue with them. Simply say again, “Officer, I’m sorry I’m not giving you consent to search my person or my property. If I’m free to leave I’d like to leave. If not, I’d like a lawyer please…”

At this point, they can still search you if they have probable cause, but what you’ve done with your statements is make them declare their reason for doing so and force them to show they are legally entitled to search you.

5. Document the Encounter.

In future columns we are going to talk a lot about what a Festival Buddy is and what their responsibilities are. In this scenario, the Festival Buddy’s job isn’t to yell “Hey man leave him alone” or drunkenly argue with the cops. Festival Buddy’s job is to whip out his or cell phone and document the entire encounter.

SPOILER ALERT – COPS REALLY FREAKING HATE THIS. The best thing to happen to Civil Liberties in this country was the invention of the cell phone camera and YouTube. But just bear in mind, cops will do just about anything to avoid having you upload your video of them on YouTube or on Social Media.

This is an area where your own comfort level has to dictate how far you push it. Legally, since you are in a public place you are completely entitled to film and record what is happening. But cops will sometimes argue that you are “interfering with an investigation” and threaten to arrest you. Or if you have had anything to drink they will suddenly decide that you are “publicly intoxicated” and try to arrest you. As a Festival Buddy you have to decide if you can safely film what is happening. That’s because your other job as FB is to stay out of custody and post bail and let your buddy’s family know he just got arrested.

I suggest that you say the following if cops order you to turn off your 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.

If that doesn’t work and your Latin is good you can just tell them, “Quis custodiet ipsos custodes” (pssst…that’s a joke but go ahead and Google it kids)

If things get crazier, be sure to get footage of the cop screaming “turn that camera off” before you turn it off. Everyone (You Tube, Media, Juries, Internal Affairs) loves footage of cops screaming “turn off that camera” to a calm person who is doing nothing but saying “I’m not interfering, just watching to make sure you are following the law.”

Okay that’s it for this column. Be sure to follow me on Twitter @Festivallawyer and be sure to tweet at me for comments on this story or future story ideas. I’ll be back in two weeks with a new column!

Read the Festival Lawyer’s follow up article, highlighting the best reactions and responding to the most pertinent questions from this article.

BIO – The Festival Lawyer is not a professional writer (duh). I am also not a journalist or concert promoter. I am just a fan who has gone to concerts all my life. I like to say that I’ve gone to a “saw Pink Floyd, The Clash, White Stripes before they broke up” and “I wish I had started wearing ear plugs a long time ago” years-worth of concerts. I’m hoping you will consider The Festival Lawyer your legal spirit guide.

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Filed Under: Editor's Picks, Featured, Festivals, Show Experience, The Festival Lawyer Tagged With: , ,