California Legal Manual: Law Enforcement Encounters
This information provided to ASA by the Midnight Special Law Collective - www.midnightspecial.net
When dealing with the police, keep your hands in view and don't make sudden movements. Avoid passing behind them. Nervous cops are dangerous cops. Also, never touch the police or their equipment - you can get beat up and/or charged with assault.
The police do not decide your charges; they can only make recommendations. The prosecutor is the only person who can actually charge you. Remember this the next time police rattle off all the charges they're supposedly "going to give you."
When the cops are trying to get information, but don't have enough evidence to detain or arrest you, they'll try to coerce information from you. They may call this a "casual encounter" or a "friendly conversation." If you talk to them, you may give them the information they need to arrest you or your friends. In most situations, it is not advisable to volunteer information to the police.
Police can detain you only if they have reasonable suspicion (see below) that you are involved in a crime. Detention means that, though you aren't arrested, you can't leave. Detention is supposed to last a short time, and they aren't supposed to move you. During detention, the police can pat you down and go into your bag to make sure you don't have any weapons. They aren't supposed to go into your pockets unless they feel a weapon.
If the police are asking you questions, ask if you are being detained. If not, leave and say nothing else to them. If you are being detained, you may want to ask why. Then you should say the Magic Words: "I am going to remain silent. I want a lawyer" and nothing else.
A detention can easily turn into arrest. If the police are detaining you and they get information that you are involved in a crime, they will arrest you, even if it has nothing to do with your detention. For example, if someone is pulled over for speeding (detained) and the cop sees drugs in the car, the cops may arrest her for possession of the drugs, even though it has nothing to do with her being pulled over. Cops have two reasons to detain you:
- they are writing you a citation (a traffic ticket, for example), or
- they want to arrest you but they don't yet have enough information to do so.
Police can arrest you only if they have probable cause (see below) that you are involved in a crime. When you are arrested, the cops can search you to the skin and go through your car and any belongings. By law, an officer strip-searching you must be the same gender as you.
Reasonable Suspicion vs. Probable Cause
Reasonable suspicion must be based on more than a hunch - cops must be able to put their suspicion into words. For example, cops can't just stop someone and say, "She looked like she was up to something." They need to be more specific, such as, "She was standing under the overpass staring up at graffiti that hadn't been there 2 hours ago. She had the same graffiti pattern written on her backpack. I suspected that she had put up the graffiti."
Cops need more proof to say they have probable cause than to say they have a reasonable suspicion. For example, "A store owner called to report someone matching her description tagging a wall across the street. As I drove up to the store, I saw her running away spattered with paint and carrying a spray can in her hand."
Never consent to a search. If police try to search your house, car, backpack, pockets, etc. say the Magic Words: "I do not consent to this search." This may not stop them from forcing their way in and searching anyway, but if they search you illegally, they probably won't be able to use the evidence against you in court. You have nothing to lose from refusing to consent to a search and lots to gain. Do not physically resist cops when they are trying to search, because you could get hurt and/or charged with resisting arrest or assault. Just keep repeating the Magic Words so that the cops and all witnesses know that this is your stance.
Be careful about casual consent. That is, if you are stopped by the cops and you get out of the car but don't close the door, they can search the car and claim that they thought you were indicating consent by leaving the door ajar. Also, if you say, "I'd rather you didn't search," they can claim that you were reluctantly giving them permission to search. Always just say the Magic Words: "I do not consent to this search."
Note that in People v. Hua (2008), the Court of Appeal for the First Appellate District found that the police violated the defendant's right against unreasonable searches and seizures when they entered his home without a warrant based only on their observation that someone inside was smoking marijuana. And, in County of Butte v. Superior Court (2009), the Court of Appeal for the Third Appellate District held that medical marijuana patients may bring civil actions for violations of their constitutional right to be free from unreasonable searches and seizures where there is no probable cause to believe they are not in compliance with California's medical marijuana laws.
Interrogation isn't always bright lights and rubber hoses -- usually it's just a conversation. Whenever the cops ask you anything besides your name and address, it's legally safest to say these Magic Words:
"I am going to remain silent. I want to see a lawyer."
This invokes legal rights, which protect you from interrogation. When you say this, the cops (and all other law enforcement officials) are legally required to stop asking you questions. They probably won't stop, so just repeat the Magic Words or remain silent until they catch on. If you forget your decision to remain silent and start talking to the police, you can and should reinvoke the Magic Words, then remain silent. Do not raise your status as a medical marijuana patient, unless specifically asked about this or the medicine has already been found.
Remember, anything you say to the authorities can and will be used against you and your friends in court. There's no way to predict what information the police might try to use or how they will use it. Plus, the police often misquote or lie altogether about what was said. So say only the Magic Words and let all the cops and witnesses know that this is your policy. Make sure that when you're arrested with other people, the rest of the group knows the Magic Words and promises to use them.
One of the jobs of cops is to get information out of people, and they usually don't have any scruples about how they do it. Cops are legally allowed to lie when they're investigating, and they are trained to be manipulative. The only thing you should say to cops, other than identifying yourself, are the Magic Words: "I am going to remain silent. I want to see a lawyer."
Here are some lies they may tell you:
- "You're not a suspect -- just help us understand what happened here and then you can go."
- "If you don't answer my questions, I'll have no choice but to arrest you. Do you want to go to jail?"
- "If you don't answer my questions, I'm going to charge you with resisting arrest."
- "All of your friends have cooperated, and we let them go home. You're the only one left."
Cops are sneaky, and there are lots of ways they can trick you into talking. Here are some scams they may pull:
- Good Cop/ Bad Cop: Bad cop is aggressive and menacing, while good cop is nice, friendly, and familiar (usually good cop is the same race and gender as you). The idea is bad cop scares you so badly you are desperately looking for a friend. Good cop is that friend.
- Prisoners' Dilemma: The cops will tell you that your friends ratted on you so that you will snitch on them. Meanwhile, they tell your friends the same thing. If anyone breaks and talks, you all go down.
- The cops will tell you that they have all the evidence they need to convict you, but that if you "take responsibility" and confess, the judge will be impressed by your honesty and go easy on you. What they really mean is: "We don't have enough evidence yet, please confess."
Jail is a very isolating and intimidating place. It is really easy to believe what the cops tell you. Insist on speaking with a lawyer before you answer any questions or sign anything.
The police do not have to read you your rights (also known as the Miranda warnings). Miranda applies when there is (a) an interrogation (b) by a police officer or other agent of law enforcement (c) while the suspect is in police custody (you do not have to be formally arrested to be "in custody"). Even when all these conditions are met, the police intentionally violate the Miranda requirement. And though your rights have been violated, what you say can be used against you. For this reason, it is better not to wait for the cops to inform you of your rights. You know what your rights are, so you can invoke them by saying the Magic Words, "I am going to remain silent. I want to see a lawyer."
If you've been arrested and realize that you have started answering questions, don't panic. Just re-invoke your rights by saying the Magic Words again. Don't let them trick you into thinking that because you answered some of their questions, you have to answer all of them.
Arrest and Search Warrants
If the police come to your door with an arrest warrant, step outside and lock the door behind you. Cops are allowed to search any room you go into, so don't go back into the house for any reason. If they have an arrest warrant, hiding won't help, because they are allowed to force their way in if they know you are there. It's usually better to just go with them without giving them an opportunity to search.
If the police have a search warrant, nothing changes - it's legally safest to say the Magic Words. Again, you have nothing to lose from refusing to consent to a search and lots to gain if the search warrant is incorrect or invalid. If they do have a search warrant, ask to read it. A valid warrant must have a recent date, the correct address, and a judge's or magistrate's signature; some warrants indicate the time of day the cops can search. You should say the Magic Words whether or not the search warrant appears correct. The same goes for encounters with any other government official who tries to search you, your belongings, or your house.
Infiltrators and Informants
Undercover cops sometimes infiltrate political organizations. They can lie about being cops even if asked directly. Undercover cops can even break the law (undercover cops get hazard pay for doing drugs as part of their cover) and encourage others to do so as well. This is not legally entrapment.
FBI, DEA, and Other Government Agents
The essence of the Magic Words "I'm keeping my mouth shut until I talk to a lawyer" not only applies to police but also to the FBI, DEA, INS, CIA, even the IRS. If you want to be nice and polite, say that you don't wish to speak with them until you've spoken with your lawyer, or that you won't answer questions without a lawyer present. If you are being investigated as a result of your political activity, you can call the National Lawyers Guild at (415) 285-5067; they will help you find a lawyer you can talk to.
Phone Calls in Jail
You're entitled to make a phone call from jail, but that doesn't mean you're going to get one right away. Jail telephones are often rigged to only make collect calls, although some take coins as well. All telephone calls from people in custody can be monitored. You may not want to discuss anything that is secret or sensitive - circumstances of your arrest, people you are close to, any contact information for those people, etc.
Whenever you interact with or observe the police, always write down what is said and who said it. Write down the cops' names and badge numbers and the names and contact information of any witnesses. Record everything that happens. If you are expecting a lot of police contact, get in the habit of carrying a small tape recorder and a camera with you. Be careful -- cops don't like people taking notes, especially if the cops are planning on doing something illegal. Observing them and documenting their actions may have very different results; for example, it may cause them to respond aggressively, or it may prevent them from abusing you or your friends.
People deal with police in all kinds of circumstances. You must make an individual decision about how you will interact with law enforcement. It is important to know your legal rights, but it is also important for you to decide when and how to use them in order to best protect yourself.
Disclaimer: Medical marijuana law in California is continually evolving and medical marijuana remains illegal under federal law. If something in this August 2009 manual appears out of date or inaccurate, please consult with an attorney or contact ASA at 510-251-1856 or 1-888-929-4367.