Subject: If You're Stopped by Cops/Slingshot
From: [email-masked] (NY Transfer News)
Date: Sun, 23 May 1993 06:54:02 GMT
Newsgroups: misc.activism.progressive

Via NY Transfer News Collective * All the News that Doesn't Fit

from Slingshot

Legal Notes

           WHAT TO DO IF YOU GET STOPPED BY THE POLICE

The legal system in the US is one arm of the octopus we call "The
System." It was designed by and is used for the benefit of those
who control the society.  It was not designed to protect the
"rights" of those who oppose capitalism or business as usual.

Because of various historical accidents, there are aspect of the
law that, at least in theory, protect individual "liberties." The
law presumes, however, that everyone knows what these protections
are and if you don't know what they are, it is very easy to
"waive" these rights.  Therefore, in the interest of giving us all
an equal chance when we're confronted by the cops, here are some
thoughts on the law of police stops and searches.

This article is based on how things are supposed to be "in
theory." The reality is that police can and will do anything they
want out on the street.  And they won't hesitate to lie about it
later on.

But some cops are worse than others and a lot of them may treat
you differently if they think you know your rights.  The police
depend on fear and intimidation to get what they want.  Don't let
them get away with more than they are allowed to because of fear.

If you run into a really bad cop, talking back to him and standing
up for your rights might get you beaten up or killed, so be
careful about the realistic limits of "the law" and of your rights
in America.  The cops are perhaps the most dangerous members of
our society so pay attention when you talk to them.  What if I get
stopped by the cops?

When a police officer stops you on the street, the law says that
the stop will fall into one of 3 categories: consensual contact,
detention and arrest.  Which one you're in determines how badly
they can fuck with you.

At one end is a "consensual contact." This means that the officer
comes up to you and says "can I speak with you?" If you say "yes,"
you have consented to have contact with the police.  That is very
bad.  The result of such "consent" is that you won't have various
"rights" under the Constitution.

ESPECIALLY if you think you may be guilty of something (you have a
warrant out on you, you are carrying drugs, you just did something
illegal), NEVER consent to talk to a police officer.  This sounds
backward.  The normal impulse when confronted with a cop is to be
polite and try to convince them that you aren't doing anything.  If
you follow such an impulse, you are unlikely to actually convince
the officer and if the cop gets you on something, you won't be able
to get out of it later on in court.  Never voluntarily talk to the
police!

If you don't think you are guilty of anything, it still isn't a
good idea to consensually talk to the cop.  You never know how the
conversation will end up.  And if people figure "well, I'm not
guilty of anything so I'll let the police stop me and ask me a few
questions now and then" the police state will be on the march.
Further, it will encourage the idea that people who don't want to
talk to the police have something to hide.  How do I avoid a
consensual contact?

If the cop asks, "can I talk to you" say something like "I'm
sorry, I'm in a hurry and I don't have time to talk to you right
now." If the cop insists, ask him "Are you detaining me?  Am I
free to leave?"

Ask this several times to make sure the cop will have a hard time
lying and saying you didn't mention it later on if you get to
court.  If it is really a consensual contact, the officer ought to
let you go on your way if you ask to go.  If you don't actually
verbally ask to leave, the court will presume that you consented
to whatever follows.

                        Police detentions

The next category of citizen/police contact is called a detention.
The police are only allowed to detain a citizen when there are
"specific and articulable facts supporting suspicion" that you are
involved in criminal activity.

This means that they can't detain you on a "hunch." "Specific and
articulable facts" (SAF) means that the police must have observed
something about your behavior and character that links you with
specific criminal activity.  If the police detain you without SAF,
the detention is illegal and whatever they obtain as a result of
the detention (evidence or arrest) cannot be used against you in
court.  How does this all work in practice?

Suppose the police stop you because it is late at night, you are
walking around the city, "you look at them funny", look "strange"
or are homeless or the wrong color.

The officer says "Excuse me, may I talk to you?" You say alright.
You have just consented to talk to the police.  If the officer
notices after talking to you for a while that you have spray paint
on your finger or wheatpaste on you clothing, or notices a bulge
in your coat, the officer can find cause to detain you and could
eventually arrest you.

If, however, you said "no, I have to go" the officer is supposed
to let you go because he or she doesn't have SAF that you are
involved in criminal activity just because you look funny and it
is nighttime.  The courts have found all of the facts mentioned
above insufficient to justify a detention.

If the cop says, "well, you can't go" or otherwise detains you,
then if they do find reason to arrest you, you may be able to
avoid the penalty because the original detention was illegal.  If
the officer detains you and finds nothing, you should complain to
the city, the "police review commission" in your town (if there is
one) and you should let COPWATCH know about what happened.
(510-548-0425.)

Often (except as noted below), when you start throwing around
terms like "detention" and "specific and articulable facts" the
cop is going to lay off.  A lot of the police's power is
intimidation and the public's ignorance.

It is crucial that you let the officer know that you are not
"consenting" to talk to him and that the only way you will talk to
him is if he detains you.

There may be SAF in some circumstances.  If you rob a bank wearing
red pants and a string tie and are spotted 15 minutes later in
those same clothes carrying a white money bag reported missing by
the bank, the police will probably have SAF.  There is nothing
illegal about a police detention if they have SAF, but not just
anything is a "specific and articulable fact" supporting suspicion
that you are involved in criminal activity.  The facts have to be
very specific.

A lot of "police harassment" situations involve the police
stopping people because they "look wrong" and then going on
"fishing expeditions" looking for a valid reason to arrest which
they didn't have at the beginning of the stop.  Don't give the
officer a chance to find anything out--"Just Say No." What if the
officer asks to search?

More serious than consensual contact and detention is an arrest.
For an arrest, the police need a high level of suspicion of your
involvement in criminal activity.  If you are arrested, the police
can search you as part of the arrest.

If the officer asks to search you without arresting you, you can
say "no." The police have the right to search for weapons if they
feel in danger of being attacked.  They are not allowed to search
people for other items.  In a lot of cases the police ask to
search someone and obtain "consent" to search.  Even though the
search isn't justified, it will be legal because the citizen
didn't object and therefore "consent" is presumed.

If the officer asks to search you or any of your property, tell
them you don't have a weapon and ask if you are under arrest or if
they have a warrant.  If you aren't and they don't, tell them "I
would rather not let you search." They may ask many times and seem
to be acting with complete authority.  Just Say No.  You will not
let them search you unless they arrest you or have a warrant, and
you don't have a weapon.

If they and search anyway and find something, you may be able to
escape the penalty later in court.  If the cop is obeying the law,
they should leave you alone.  The fact that you refused to be
searched does not make you more "suspicious" and give them an
excuse to search.

Of course as stated above, the police may ignore all of these laws
and they may be less than polite and non-violent.  When a cop gets
out of control, deal with it carefully.  But don't voluntarily
consent to either a search or a detention.

                               -30-

Slingshot
700 Eshleman Hall
Berkeley, CA 94702

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