10 tips for safely navigating an entrance search at a festival

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

Live 105’s BFD festival lives up to its name

BFD_POSTPhotos by Marc Fong // Written by Krystal Beez //

Live 105’s BFD //
Shoreline Amphitheatre – Mountain View, CA
June 1st, 2014 //

Live 105’s annual BFD festival has been around since 1994, and the festival has hosted A-list artists such as The White Stripes, The Killers, Garbage, Diplo, Snoop Dogg and Knife Party, to name a few. Over the years the festival has grown, selling out the last couple of years, and the Bay Area radio station hosts a Cheap-Ass Ticket Party for $10.53 when tickets went on sale (you know you have a good thing going when many people arrive at 6 a.m. for discounted tickets). This year, as 20,000 people descended on the Shoreline Amphitheatre, these five artists really stood out.

MS-MR

1. MS MR
MS MR’s performance was impressive, as Lizzy Plapinger’s vocals hit the mark while the group’s instrumentals were near flawless. Their alternative, dark wave sound translates well onto the stage, creating an immersive performance that felt special to witness. This duo, that also includes Max Hershenow (aka “MR”) is polished and popular enough to play the main stage at BFD — perhaps next time. If MS MR is playing in your area, do what you need to do to get yourself to the show.

2. AmpLive
Wow. Known best as half of the duo Zion I, this hip hop producer, performer & DJ got the Subsonic Tent going crazy! He dropped Snoop Dogg’s “Drop It Like It’s Hot” into The Fugees’ “Ready Or Not” into “I Got 5 On It” into “Feelin Myself”, and everyone present within the range of AmpLive’s speakers was most definitely feeling themselves. Check him out whenever he’s town for a proper dance party.

Phantogram

3. Phantogram
Sarah Barthel and Josh Carter are no strangers to performing in festival environments, and that was apparent on Sunday at the main stage. Phantogram gave an exceptional performance, and it was delightful to hear them play a few tracks from their debut LP, Eyelid Movies. Catch them at First City Festival in Monterey this August to see for yourself.

4. RAC
Another artist that kept us dancing at the Subsonic Tent was electronic/rock remix outfit RAC. No surprise here, RAC live is always going to be a dance party that pops off. They played a lot of their remixes as well as originals from Strangers, released earlier this year.

M.I.A

5. M.I.A.
M.I.A. clearly still has it going on. Her newer material from the underrated Matangi impressed on main stage — the only question: Shouldn’t she be headlining BFD at this point over Foster the People?

Overall, BFD continually delivers a diverse lineup. The main stage and festival stage contain eclectic acts, ranging from established artists to the up-and-coming next big things. The Subsonic Tent is a perpetual dance party, and the Local Stage is a real treat for Bay Area music fans, as it’s often a jumping off point for many local artists. It wouldn’t be surprising to see Waters, French Cassettes & The Hundred Days break out soon. Until next year!

BFD

Upgrade your Fest Experience by following the 3 “Festival-Buddy Golden Rules”

Fesitval-Buddy

Follow the Festival Lawyer on Twitter.

This article started with me wanting to talk about what happened at Electric Zoo and the need for people to “Rave Responsibly”. You know, things like the need for accurate information, testing kits, and organizations that promote “Harm Reduction” and other practical advice. But when I started to write that article, I realized we needed to talk about something else first.

Did you know that PLUR used to have a second R? And that the second R stood for “Responsibility?” The question I keep asking myself is, “Do people still follow that second ‘R’?” Are Festival Buddies still taking care of their friends?

If so, why do we now see so many drunken folks left passed out or wandering aimlessly around by themselves at Coachella, sometimes looking like an episode of The Walking Dead? And how come a young woman is taking 6 tabs of Molly at Electric Zoo without her buddies stepping in? And why are women being put in potentially dangerous situations because their friends don’t know who they left with?

So, instead of just focusing on the EDM scene, I think we need to talk about a bigger topic: How do we create and promote an awesome, and more positive festival scene for everyone? To me the solution is for all of us to work on being better festival buddies to each other. I suggest following the Three Golden Rules:

Festival1

FESTIVAL BUDDY GOLDEN RULE #1:
You are responsible for your buddy’s (and rest of the audience’s) safety.

This rule is basically another way of saying, “There are ways to do irresponsible things responsibly.”

As a good Festival Buddy, I won’t leave your drunk ass lying in a heap because I am mad at you and just cross my fingers that you get home. Instead, I will get you home safely like you would do for me, and THEN tell you what an ass you are for wrecking my show.

Festival Buddy Golden Rule #1 Examples:
Many years ago, I pretty much missed most of a Pink Floyd show because halfway through, the dude I was with leaned over and said “Hey…I just took something from someone.” As smart as secretly taking an unknown drug from a stranger might seem, it turned out be a huge mistake on his part. Soon thereafter my friend started flipping out and told me that he was now seeing “cavemen on his eyelids.” Your humble narrator required constant use of the phrase “keep your shit together dude…right now…I’m super serious” and some Vince Vaughn level of fast talking to authorities to get us safely home that night.

I did that not because I am a great guy, but because my buddy was helpless and vulnerable. And because he would have done the same for me. A true Festival Buddy adopts a strict “Leave no Raver/Rocker behind or alone” philosophy.

Also, a good FB is an Educated, Empowered Citizen. He (or she) is educated and informed about organizations like dancesafe.org, bunkpolice.org, and plur-rx.com that promote testing and other “harm reduction” ideas at festivals and raves. Any person taking any drug has by definition engaged in a uniquely dangerous act. But if that’s your personal choice, then you need to be one seriously informed individual. Anything less is not “personal choice” but “personal recklessness”.

Also, as my last two articles have discussed, a good Festival Buddy knows his/her rights, and would watch and record an arrest for his buddy, or at least make sure to be that person’s lifeline to friends and family. (If you need to get up to speed on this, here is Part 1 and Part 2 of “What To Do if The Police Stop You at a Music Festival”.

Festival2

THE SECOND RULE OF FESTIVAL BUDDIES:
(No, not “You do not talk about Festival Lawyer Club”)
“I will try to enjoy the show in such a way I don’t wreck your enjoyment of the show.”

A true Festival Buddy also knows how to “UPGRADE” his friends’ experiences. I call this philosophy the “UPGRADE” now, but I’ve seen this same idea floating around under a lot of different names and variations: PLUR, Good Vibe tribe, Rage it Forward, The 10 Principles, Concert Karma, etc.

All of these are different names for the same basic idea; that the level of fun you have at a festival has less to do with how good the performer is (although that helps) and way more to do with how good the audience is.

In other words, you will have the most fun at any festival where the audience is being fun and spreading positivity and good vibes to each other. This may sound a bit too “new agey” and “woo woo” for your tastes, but I assure you it is true both sociologically and psychologically. But seriously, do I really need to scientifically prove this to you? Isn’t it obviously more fun to be in a crowd of fun, positive, dancing people than be surrounded by a bunch of negative bad vibey jerks?

So part of the way I can UPGRADE the audience is by enjoying the show in such a way that it doesn’t wreck my friends’ show experience.

Festival Buddy Golden Rule #2 – Examples:
Maybe you might want to record the whole show on your iPhone (or now iPads? seriously?) and just stand there and focus on getting the best video and pics. I’m not here to judge or scold you. Although I do feel the need to point out that you will NEVER watch that stupid motherfucking shaky video again and you are watching something through a tiny screen that is actually happening really big and loud RIGHT IN FRONT OF YOU LIVE!!! (Umm…actually maybe I am judging you a tiny bit. Sorry.)

But that’s beside the point. The point is, I can “UPGRADE” the experience around me by being present, being fun and by not holding up a large metal view blocking device throughout the concert in the face of the guy behind me.

Or maybe you like to treat the show as a backdrop to your private conversations with your friends. I KNOW you paid for your ticket too and have the RIGHT to talk about stupid crap at an awesome concert. So you can certainly do it. But for me, I know that I might be standing next to someone who is hearing some quiet, beautiful song that he might have waited years to hear live. So I can UPGRADE the audience by not talking over it.

I was at a Jack White concert last year and this guy was loudly arguing with his girlfriend during “Love Interruption”. (Oh the irony!!) Turned out the argument was about whether Radiohead or Coldplay was a better band. Which was weird because:

A) Fuck you if you don’t know that Radiohead is about 1 million times better than Coldplay.
B) Neither band was playing at that festival so that’s an even better reason to shut up. That dude totally downgraded his festival buddies’ experience and was a serious buzz kill to the audience around him.

But more than just not being disruptive, a true UPGRADE requires a commitment to making the audience better through positivity and fun.

Festival3

THE THIRD RULE OF BEING A FESTIVAL BUDDY:
I will UPGRADE the rest of the audience by personally taking positive actions.

The best definition of Positivity I know is that it makes me happy to see other people happy. So Upgrading is me just letting other people know that’s it’s okay for them to have fun around me.

I mainly do this by letting you know that I don’t think you are a freak or stare at you if you feel like dancing, singing or doing some kind of insane interpretive dance. In fact, I prefer that you stand next to me so I can tell you how you are “killing it”.

Festival Buddy Golden Rule #3 Examples:
Last year at Outside Lands, I asked someone to take a picture for us. “Fuck yeah I will” was his response. While taking the picture he was saying “fuck yeah..fuck yeah..this pic is going to be killer”. When it was done I told him thanks and he said “No..thank YOU!..that was fucking awesome!” (This dude seemed sober and just awesome.)

That was a huge “Upgrade” for us right? We laughed our asses off and kept saying it to other people at the festival. Whenever anyone asked me to take their photo my reply was “Fuck yeah I will!” We felt happier and spread more fun because of it. The effect rippled because other people would laugh about the story. Heck, we STILL laugh about it. An Upgrade is anything you do that is a way of paying forward positive vibes and letting people know that near you is the best, most fun place to party.

So wearing a crazy costume is an upgrade. Giving a hi-five at the show to someone wearing a crazy costume and saying “you’re doing great!” is an Upgrade. Saying “sorry, bro” to someone who you just bumped into is an Upgrade. Responding with “No Worries” is an Upgrade back. Starting a dance circle is an Upgrade. Joining that dance circle is an Upgrade back. See what I mean?

Festival

Or maybe you might give away your last bottle of water to someone who looks miserably hot, or give your Spirit Hood to someone freezing. Or take someone’s picture that is struggling to take a “selfie” with his or her partner.

If you need more examples, talk to just about any Deadhead or Phish or Widespread Panic fan. Or talk to people about PLURR. (I’m trying to bring back the second “R”) Or read the Burning Man 10 principles.

Or you could do what I did, Follow the Festival Guy on Twitter and read his blog and meet him at your next fest. Tucker Gumber was there at my “origin story” and first told me about “Raging it Forward”. Tucker is basically the Tyler Durden of positivity.

In other words, find cool people who believe in this way of “festing” and support them. If you see someone who is doing great, tell them. Maybe even ask “How about an Upgrade?” If the person doesn’t know what you are talking about, they are probably just a “Natural” partier and you should be fine for the rest of the night. But if they say “Fuck yeah” and hi-five you back? Well You KNOW they are a party professional and you are in good hands.

Do you have a code of positivity and responsibility (example PLURR) when you fest? Who taught you about it? Do you have a favorite way to upgrade other people’s experiences? Tell me in the comments about it or hit me up on Twitter to tell me about it.

Footnote 1 – Here is how this stuff works in real life:



Like Showbams on Facebook and follow Showbams on twitter to get more advice from the Festival Lawyer and to win free tickets to shows. Follow the Festival Lawyer on Twitter.