Life Kit - Rights To Remember If Police Stop You

Episode Date: October 28, 2020

What should you do if a police officer pulls you over while you're driving, or stops you while you're peacefully protesting?Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

What do you do if you are stopped by the police? On the street? In your car? What protections do you have under the law? If a police officer asked to search your bag, what should you say? It's the police, right? So it can be very hard to stay calm and focused. Even if you already understand your basic constitutional rights, you might need to be reminded of them. Atiyah Hawley is the managing attorney for impact litigation at the Southern Center for Human Rights. Basically, I file lawsuits to challenge the government and to challenge failures within our criminal legal systems, both here in Georgia and Alabama.

And I guess I would say I would just try to make the system work better for people who are systemically marginalized by our criminal courts. There is a term for resources that answer these questions about how to interact with the police. They're called know-your-rights materials. But Atiyah says a lot of Americans actually do know their rights. Perhaps it might be better to call them use-your-rights or asserting your rights or what have you.

I'm Noelle King. In this episode of Life Kit, Atiyah is going to help us understand what rights we have while interacting with the police. She'll cover the basics, what constitutional amendments we should know, and how they apply in various scenarios. She's also going to walk us through some things

that commonly happen. Now, I should say, the information in this episode is for general informational purposes only. It is not intended to be legal advice. For any specific legal matter, you should call an attorney. This episode is about knowing what to do if you are stopped by the police. So to start things off, let me ask you directly, if a person is stopped by the police, what protections under the Constitution are they afforded? What rights do they have? They have a right under the Fourth Amendment not to be unlawfully searched. They have a right under the First Amendment to record their interactions with

the police as long as they're not directly interfering with what the police are trying to do. They also have a right to remain silent. And so they have a number of constitutional protections under the Fourth, First and Fifth Amendment to ensure that their rights are not being violated. Let's draw each of those out a little bit. So the first one is, if a person is stopped by the police, they have a right to record as long as they are not doing anything to impede the work of police officers. That means I can have my phone and I can hit record as long as I'm not touching the officer, getting in their face, doing anything that could be considered impeding the police. Right. And as long as you're in a public place and what you are recording is in plain view, it's out there in the public. And again, coupled with what you just said about not impeding or interfering with what the police are doing, that person should be able A person was stopped by the police while protesting,

often peacefully, and was told, I want you to open your backpack. I want to see what's inside. I want you to open your handbag. I want to see what's inside. Does the Fourth Amendment protect me in that case? Is that unreasonable search and seizure? In that instance, the person should say, no, I do not consent to that search. Now, with that said, that does not mean that the police are going to abide by that person's lack of consent or refusal to consent to that search, right? And unfortunately, there are police who disregard that refusal and go on and search the person's belongings anyway. It is crucial, it's absolutely crucial that the person in that instance refuse consent

because the easiest thing that a police officer can do down the road in court is say that I was given consent to search that backpack. And so even if they don't have probable cause to search, as long as a person gives them consent, then probable cause goes out the window and they can search whatever they are asking to search as they see fit. And so I always advise people not to consent to searches because of that reason, right? The law will protect you or should protect you later on down the road.

But we also know that we are asking people to put a lot of faith and a lot of trust into a system that has often failed them time and time again. And under the Fifth Amendment, if a police officer demands to know what someone is doing during a protest on the edges of a protest, it is lawful to not speak. It is lawful to simply say nothing, to stand there and just stare back at the officer. Tell me how this plays out when it does happen. So again, yes, people have a right to remain silent. With that said, sometimes officers might ask for your name or your address or how old you are. And in those instances, we, you know, we ask or suggest that people at most give that information to demonstrate that they are at least trying to comply with the officer, but not going overboard and exposing a bunch of information that they are at least trying to comply with the officer, but not going

overboard and exposing a bunch of information that they don't want to give. But again, this is one of those instances where people should remain silent. They do not have to explain their whereabouts or why they're in a particular place, as long as they're in a public place in a lawful way. But sometimes officers don't always abide by that or respect that and take it to the next level. But we advise people to remain silent if they do not want to speak. Right. And at most give very basic information as to who they are, if it's requested. OK, so those are the federal laws. Those are my protections under the U.S. Constitution. When I'm in the U.S., when I'm in U.S. territories, that applies to me. Are there

state-specific laws that listeners should have in the front of their minds if they end up in an interaction with police officers? Absolutely. And unfortunately, I can't go through the whole litany of state protections as it applies to where you are. But every state has its own constitution, and some of these constitutions can exceed or provide even additional protections beyond what's provided under the 14th Amendment. There may be specific statutes with respect to unreasonable searches and seizures, excessive force, your rights to film police, your rights at the time of stops, consents, and things of that nature to see if there are additional protections beyond those provided by the U.S. Constitution, as you mentioned.

Okay. I want to ask you about the different levels of interaction during an encounter with the police. So from what I've read here, there is conversation, there's detention, and then there's arrest. I want to talk about the differences between those three things. How do I know whether I am just in a conversation with a police officer or whether a police officer is detaining me? Is that something that they're going to tell me right away? Or should I be asking, are you detaining me? Absolutely, Noelle. We very much encourage people to ask, am I free to leave? Am I being detained? And the officer should tell you at that point whether you are free to leave or whether they are detaining you for one reason or another. And so I would very much encourage people to ask that question, am I free to leave, and get your answer. And that will dictate whether that interaction with that police officer continues to go on or not. Because if you are free to leave, then you should be able to do so.

What are some other key phrases that police officers will use and sort of use across the board that help me to understand where I am in the process and perhaps even how much trouble I may be in? What should I be keeping an ear out for? I would look for any iteration of can I look in your stuff, which basically means can I take a look in your bag? Can I take a look here? bag? Can I take a look here? Can you pop open a trunk, for example? Just anything that sounds like they want to look in your belongings or in your space, I would definitely look out for. Officers typically don't use the words, do I have your consent to do X? It sounds far more informal than that.

And so that is a moment where you need to assert your right not to be searched. You need to assert your right not to have your belongings searched. Because I hear this all the time when I'm observing court proceedings across Georgia, the sole basis that the officers had to go into someone's trunk and eventually find marijuana, for example, was that the person said, sure, you know, the person consented. And so really being mindful of that. But also when someone's in their home, the officers need to have a warrant or need to have consent to search your home. But sometimes it's not even a matter of giving verbal consent. I've read cases where the officer said that the person's body language kind of, you know,

seemed to be acquiescence to the officers going in, right? And so really being mindful of your body language, the nonverbal cues that could be used to establish that you gave consent, even if that wasn't your intent. So something like motioning officers forward, in terms of body language, I'm actually very curious, what might I do that would wrongly lead police officers to think I'm giving them permission to search my house or my car? Sure. And so taking the house example first, if an officer comes to the door and I'm facing them and then I kind of turn my shoulder, you know, turn it back. And the officers could think that that's kind of allowing them or welcoming them into the space, right? And so really being mindful of that, anything that shows that you might be opening up the space or opening up your body and communicating to them non-verbally that you are allowing them to come in. I mean, I've seen some courts say that

that was sufficient and an officer had a reasonable belief that the person was giving consent. With cars, it's a little bit different, but it could be the same kind of thing if you wanted to like use your hands, you know, if an officer felt like you were like kind of pointing to the glove box and saying, go ahead, flip it open, you know. So really being mindful that you are not only communicating your refusal to search verbally or non-verbally, just making sure that they are consistent so that nothing can be misread as consent. I want to ask you about detention and arrest and something that I myself have done while working in other countries and have been detained. My first impulse is to just start

running off at the mouth, to just keep everyone calm, say what I'm doing there, and to just talk and talk and talk and talk and talk. Is it a smart move if I've been detained or if I've been arrested, and I don't yet have a lawyer with me to just talk and talk and talk to keep things calm? It's that gut impulse, right? Where we think that if we just tell our story, if we just tell what we did or didn't do or how things have gotten confused, that somehow we can just undo everything that's happened. But that is typically not what we see at all. And the police are there to take you into custody and to provide whatever information they have to make a case to the prosecutor to bring charges against you. And they will rely on statements that you make. And I think it's sometimes difficult for us to really understand what is helpful to us and what is hurtful to us, right? And if we start saying things to the police, you know, in an attempt to

mitigate our involvement, right? Like, I didn't do anything. I just drove the car and then someone else did X, Y, and Z. That is going into a police report, which can go into a prosecutor's hands and they could decide whether to charge you as a party to a crime, right? And so we need to be very mindful as to what each and every statement we make to police can do to us moving down the line. And that is why we really, really stress

that people not say a word without the counsel of an attorney or representative who was there with you. All right. So take some deep breaths, name, address, and then after that, keep it quiet. Let me ask you about what happens if the rights that I have under the Constitution are violated. And one scenario that I can easily imagine is a police officer says, open up your bag. And I say, no, I have a right to not have my property searched and seized under the Fourth Amendment. And the officer opens my bag anyway. We see that a lot in videos of protests. It seems to happen pretty frequently. What happens then if

my rights are violated? What should I do? Should I snatch my bag back? Should I just let it go? What's my best move? I think your best move, and it's really frustrating for me as an advocate to say this, because I understand it's a lot easier for me to say this than for people to do it in the moment. But in that moment, if an officer is taking my bag against my will and searching it, I would not resist them because that is a charge that could be leveled against me and they will just have to take my bag against my consent and search it. And again, this is something that can be brought up later on down in the process, right? Assuming that you are charged with a crime for whatever is found in that bag or for something connected to that, then you will raise that in your criminal case. Argue that they violated your rights in searching your bag against your consent and that anything that they found should be suppressed.

And again, this is putting a lot of faith into a criminal legal system that has frankly failed a number of people, but your rights were violated in that instance. And as long as you don't do anything that could cause officers to press more charges against you, then save it for court. Save it for your advocate to argue that what the officers did was unlawful and unconstitutional. And at that point, the judge should, taking all the facts into consideration, agree with you and either suppress the evidence means kick it out or best case scenario, dismiss the case entirely. These kinds of conversations are often framed as know your rights conversations. There are lots of trainings about them. There are lots of resources expended on them. I know that you don't particularly care for that phrase and that framing. What is it about know your rights that kind of rubs you the

wrong way? I just don't like the assumption that people aren't really familiar with what that term means. And frankly, sometimes I get a little bit concerned about efforts to educate communities about, you know, about their rights or what have you. I just worry that sometimes the way that these materials and sometimes trainings are presented is that it's the community members who are the problem, and it's not an overall criminal legal system that is steeped in racism and steeped in classism that has unfortunately made it incumbent upon a number of us to teach these know-your-rights materials to certain parts of our communities, if that makes sense. It makes total sense.

And if I can draw a bit on what you're saying, I hear you saying these rights are not that complicated. You hear them once or twice, you pretty much have them down. The problem comes when I know my rights, but an arresting officer acts as if those are not my rights. And that problem is more common in black and brown communities. Absolutely. And unfortunately, we have this criminal legal system in which black and brown people are far more likely to be stopped by the police, far more likely to be charged with crimes, far more likely to be convicted of crimes and get longer sentences. And so I very much understand the need to be in black and brown communities discussing what our rights are. And as a parent of two young black boys, I very much appreciate the need to ensure that we all know what our rights are in these interactions. I just always want to be mindful that these types

of know your rights materials are coupled with this larger narrative about the ways in which our systems are designed to ensnare primarily Black and brown communities into incarceration, into correctional control and such. And so I think that the two need to be paired and it shouldn't be just, you need to be calm, you need to follow what the police say, you need to do X, you need to do Y to prevent things from, you know, from blowing up, if that makes sense. It does. It's the police also need to be doing their jobs properly, too. And yet what we've seen throughout the summer and what we've seen increasingly since people have had access to cameras on their phones is that the police in a not insignificant number of cases behave as if people don't have the rights that the Constitution gives them. Given all of that, given everything you've just said, including what I imagine is real concern for your own children, what makes you hopeful at the end of the day,

especially after a summer like the one we just saw? Oh, Noel, that is a question that I ask myself every day. And I think every week this past summer has really forced me to question how I remain hopeful and should I remain hopeful, whether it was the grand jury's decision in Breonna Taylor's case, whether it was George Floyd's killing, whether it was a very recent beating of a man in front of his children here in Metro Atlanta. I think that this system gives you new and unfortunate reasons to not trust and to not hope. But if anything, I just can't see myself doing the work that I do if I don't have hope. And I think that we need to feel, particularly as people of color, we need to feel just as entitled to these constitutional rights that we've been talking about as other communities do. And I think as long as we take hold of them and feel this sense of entitlement, then we can fight for these rights and assert them in meaningful ways. And so as a mother, I am hopeful.

As an advocate who has a number of clients who are both incarcerated and under correctional control in the community, I have to be hopeful. And I think just as a being on this planet, I have to be hopeful. Because frankly, what is it all for if I'm not? Atiyah Hawley, thank you so much for your time. We really appreciate it. Thank you, Noelle. Thank you.

Okay, so let's go back through and recap everything real quick. The first takeaway is that you should familiarize yourself with your constitutional rights. The first, the fourth, the fifth, and the fourteenth are most relevant if you're interacting with the police. Takeaway number two, look into state-specific protections that you might have. Check your state constitution and look for state statutes that might give you even more protection. Takeaway three, remember there are different levels to an interaction with the police. Conversation, detention, and arrest. Takeaway number four.

If you are stopped, stay calm. Don't volunteer too much information. You don't want to accidentally incriminate yourself. Under the Fifth Amendment, you have the right to remain silent. Takeaway number five. You don't have to consent to a search. If you're opting to exercise that right under the Fourth Amendment, it's important that you verbally assert it. You just say, I do not consent to search.

And listen really carefully for any iteration of, can I look at your stuff? In some places, remember, body language can signal nonverbal consent. So be careful what you do with your arms. Takeaway number six, you can do everything right and still have your rights violated. If your rights are violated, try to stay hopeful that a court of law will uphold them. For more NPR Life Kit, you should check out our other episodes. My personal favorite is one on how to start composting. I did it this summer. And here's the thing, it worked. You can find those episodes at npr.org slash life kit. And if you love Life Kit and you really want more,

subscribe to our newsletter at npr.org slash LifeKit Newsletter. This episode was produced by Audrey Nguyen. Megan Cain is the managing producer and Beth Donovan is our senior editor. Special thanks to Darius Charney at the Center for Constitutional Rights and NPR's Kimberly Sullivan, Carrie Johnson and Robert Baldwin III. I'm Noelle King, and thanks for listening. On the next episode of Louder Than a Riot, the 20-year fight to clear the name of former No Limit rapper Mac Phipps. Because me and my brother was close. The years that he lost, that's some of the best years of his life he done lost. To me, it just hurts. Listen now to Louder Than a Riot, the new podcast from NPR Music.