Here are the most important laws you need to know regarding police conduct, which generally applies to all levels of law enforcement, including FBI, NSA, etc. Laws regarding police conduct are complex, involve many specific rules, and change frequently. If you feel that any your rights (whether listed below or not) have been violated, we strongly urge you to find a lawyer who specializes in criminal and constitutional law.
HERE’S WHAT YOU NEED TO KNOW ABOUT THE LAWS REGARDING POLICE CONDUCT
1. Can I use my phone to record police activity?
Yes. You have the right to record police officers in public spaces, and the police may NOT interfere with your recording (unless you are physically obstructing police work).1See DOJ Civil Rights Division memo of May 14, 2012
2. Do I have the right to be on a public sidewalk?
As long as you are not blocking the flow of traffic, you have the right to be on a public sidewalk or to peacefully gather with others on public sidewalks, and police may not unreasonably restrict this right.2U.S. Constitution, 1st Amendment; Cox v. Louisiana, 379 U.S. 536, 554 (1965); Frisby v. Schultz, 487 U.S. 474, 480 (1988) But to march or assemble on the streets or roads, you will need to get a permit with the city.
3. Can police search me any time they want?
No. You have the right to be free from “unreasonable” searches by the government/police of your body or anything you are wearing, your home, and some other personal areas. This essentially means that before law enforcement is allowed to search you, they must believe it is more likely than not that you have committed some crime and that evidence of that crime will be found in the search (the legal term for this is “probable cause”).
A police officer obtains a search warrant by convincing a judge that he will likely find evidence of a crime in searching you. In general, police must have a search warrant to search you, but there are many exceptions to this requirement.3U.S. Const, 4th am.; see Brinegar v U.S. (1949).
Specifically, some of the situations police ARE allowed to search you without getting a warrant include:
- any kind of surveillance that an average citizen could do, including use any technology that an average citizen could possess4Katz v U.S.; Kyllo v U.S.
- search (and take) your garbage, once you put it on the sidewalk or street5California v Greenwood
- where you do NOT have a “reasonable expectation of privacy.” This means the police can generally view and take photos or video of you or anything you do in public, or anything which is visible from a place where law enforcement is legally allowed to be, such as the street or sidewalk6see Katz v U.S., Hester v U.S., Oliver v U.S., California v Ciraolo; Horton v CA
- “emergency” circumstances, such as when the police believe it is imminent that you are committing or will commit a crime or destroy evidence, or to protect the health and safety of others7Warden v Hayden; Minnesota v Olsen; Brigham City v Stuart
- “stop and frisk” (see below)
Some of the situations police MUST get a warrant before searching you include:
- Searching the contents of your cellphone or computer, even if you are arrested, and even at a U.S. border crossing.8Riley v CA (2014); U.S. Const., 4th amendment; Federal district court ruling May 12, 2015 Note that a court is legally allowed to require you to give your fingerprint to unlock a device, but courts may NOT require you to give up a password or passcode.
- Hotel guest records9City of Los Angeles v. Patel, U.S. Supreme Court, No. 13-1175
- Searching your car (but if you are lawfully arrested, police may search the car, but MUST get a warrant to search the trunk)10NY v Belton; AZ v Gant; Knowles v Iowa
- California state agencies may not search ANY business metadata or digital communications (texts, emails, etc) without a warrant. (this does not apply to the federal government)11California Electronic Communications Privacy Act
4. Can police take my property whenever they want?
No. You have the right to be free from “unreasonable” taking of your property by the government/police. This means that before law enforcement can take your property (in legal terms this would be a “seizure” of your property), they must believe it is more likely than not that you are committing or have committed a crime. In general, police must have a warrant to seize property,12A police officer obtains a warrant to seize your property by convincing a judge that the property is evidence of a crime or will lead to evidence of a crime but there are many exceptions, including if evidence of a crime is clearly visible (for example, drugs).13U.S. Const, 4th am. See U.S. v Karo (1984)
5. Can the police arrest me whenever they want?
No. You have the right to be free from “unreasonable” arrests by the police. This means that before law enforcement can arrest you (in legal terms this would be a “seizure” of you), they must believe it is more likely than not that you are committing or have committed a crime. In general, police must have an arrest warrant14a police officer obtains an arrest warrant by convincing a judge that you have likely committed a crime to arrest you within your home, with some exceptions. Police do NOT need an arrest warrant to arrest you in public.15U.S. Const, 4th am.; See Payton v NY (1980)
Miranda warnings. Upon arresting you, police must explain your basic rights, including your right to remain silent. (see #6 below for further Miranda rights)
6. Is it illegal to resist arrest?
Yes. Interfering or resisting a police officer who is trying to arrest you is illegal.16Penal Code Section 148
7. What is “stop and frisk” and is it legal?
“Stop and frisk” occurs when the police stop you briefly and pat you down for weapons or evidence of a crime. This is not legally considered either a “search” or arrest, but it does fall within the 4th amendment. Because it is considered less intrusive than a full search or arrest, police only need “reasonable suspicion” that crime is afoot to be able to stop you and pat you down.17U.S. Const, 4th am. See Terry v Ohio (1968)
8. What are my rights upon being arrested (“Miranda rights”)?
Upon being arrested, you have the following rights:
- Right to remain silent when the police ask you questions (because you do not have to incriminate yourself).18U.S. Const. 5th am.
- Right to an attorney. If you cannot afford an attorney, the government will provide one free of charge.19U.S. Const. 6th am.
- After an arrest, if police don’t formally charge you with a crime within a short period of time, they must release you.20U.S. Constitution, 6th Amendment
EXERCISE YOUR RIGHTS
- File a complaint with the Department of Justice
- Find a criminal defense attorney or civil rights attorney
References [ + ]
|1.||↑||See DOJ Civil Rights Division memo of May 14, 2012|
|2.||↑||U.S. Constitution, 1st Amendment; Cox v. Louisiana, 379 U.S. 536, 554 (1965); Frisby v. Schultz, 487 U.S. 474, 480 (1988)|
|3.||↑||U.S. Const, 4th am.; see Brinegar v U.S. (1949).|
|4.||↑||Katz v U.S.; Kyllo v U.S.|
|5.||↑||California v Greenwood|
|6.||↑||see Katz v U.S., Hester v U.S., Oliver v U.S., California v Ciraolo; Horton v CA|
|7.||↑||Warden v Hayden; Minnesota v Olsen; Brigham City v Stuart|
|8.||↑||Riley v CA (2014); U.S. Const., 4th amendment; Federal district court ruling May 12, 2015|
|9.||↑||City of Los Angeles v. Patel, U.S. Supreme Court, No. 13-1175|
|10.||↑||NY v Belton; AZ v Gant; Knowles v Iowa|
|11.||↑||California Electronic Communications Privacy Act|
|12.||↑||A police officer obtains a warrant to seize your property by convincing a judge that the property is evidence of a crime or will lead to evidence of a crime|
|13.||↑||U.S. Const, 4th am. See U.S. v Karo (1984)|
|14.||↑||a police officer obtains an arrest warrant by convincing a judge that you have likely committed a crime|
|15.||↑||U.S. Const, 4th am.; See Payton v NY (1980)|
|16.||↑||Penal Code Section 148|
|17.||↑||U.S. Const, 4th am. See Terry v Ohio (1968)|
|18.||↑||U.S. Const. 5th am.|
|19.||↑||U.S. Const. 6th am.|
|20.||↑||U.S. Constitution, 6th Amendment|