Wednesday, December 10, 2014

What to do (and NOT do) when you are stopped by police.

Nobody likes to be stopped by police but it will happen one way or another.  But if you are stopped by a police officer for any reason - - with or without known cause, you have rights under the laws and the police officer has rights.  Before I elaborate on what to do and not do during a police stop, let's look at Terry v. Ohio or what is known as the "Terry Stop"  which allows a police officer to stop an individual(s) and perform an outer clothing "pat down" if the officer reasonably believes that individual actually poses a threat to anyone - - whether the officer sees the signs of the threat (pacing back and forth in front of a bank, or wearing a winter coat on a hot July day).  A stop can also take place when citizens report the suspected individual to 911, even though their suspicions may turn out to be false.  The officer does NOT have the right to search inside an individual's clothing unless the pat down turns up contraband (drugs or a gun) or the individual is arrested for any crime or violation with a valid and verifiable charge. 

  • The police officer cannot compel an individual to empty his pockets, regardless if no pat down took place or nothing turns up after the pat down and the individual has not created an atmosphere where the officer's life is in danger or the individual attempts to flee.
  • The police officer cannot arrest an individual without a valid and verifiable charge.
  • The police officer cannot ask if the person committed an act which requires the officer's visual observation - and the officer didn't observe the act - - such as smoking in a prohibited area.   
  • The police officer must state the reason why the individual was stopped - - not because solely of race, gender, religion or any of the protected classes .
  • The police officer cannot suppress anyone videotaping the stop, not by the person who is briefly detained, not any witnesses to the stop - - as long as the witnesses do not interfere with the officer's legal duties in carrying out said stop. 
  • In a vehicle, the officer CAN search the car and the occupants - - without a warrant - -  if there is reasonable cause the occupants have committed a crime (other than traffic violation) or the officer observes contraband (gun or drugs) in plain view. 
  • The police officer(s) cannot enter your home unless they have a valid search warrant which matches the residence and purpose of the warrant - - or there is an emergency which requires the officers to enter the premises. 
When you are stopped - - and it's not good when it happens - - you can make the stop as easy for you and the officer(s).

  •  DON'T be belligerent or hostile to the officer - - your chances of getting arrested for anything (even for a nonsense charge) increase tenfold.
  • DON'T walk or run away - - that is automatic ground for the officer to detain you
  • DON"T comply with the officer's request to empty your pockets or open you bag (except where there is public notice that bags may be searched and the search is exclusively to detect explosives or weapons.
  • DON'T interfere with the officer's duties 
  • DON'T ever reach into your pockets when the officer didn't tell you 
  • DO refuse to show your ID unless it's a traffic stop
  • DO be polite to the officer and let him know your constitutional rights
  • DO ask for police ID if plainclothes officers verbally identify themselves without displaying their authorized shields
  • DO videotape the entire stop
  • DO cite the law which legally permits you to do something which the officer tells you that it's illegal.  In the New York City subway system, Section 1050.9(c) of the NYCRR Rules of Conduct shows it's legal for a person to perform non-commercial photography from public areas of the subway system (or from public streets) as long as tripods or other ancillary equipment is not used, nor the photography will interfere with the safe operations of any NYC Transit facility or conveyance (e.g. using flash to take a photo of an approaching train).  However, there have been many incidents where amateur photographers have been harassed by officers - - there is an excellent website Photography Is Not A Crime which posts news and podcasts on anything related to photography and law enforcement. 
  • DO ask to see any witness(es) who reported the individual's likeness (clothing, age, race, height, etc.) when a crime recently took place  
By being polite and cordial to the officer, even if you are in the right, you might be able to walk away happy in most cases.  If you did something illegal (such as smoking in a prohibited area) your politeness may just get you a free pass from the officer, especially if it's your first encounter.  Police officers have a stressful job with lots of uncertainty about whether they can go home each night - - you can make it easier for them.  At the same time, cops have a lawful duty to apply the laws and emergency protocols equally to everyone, and to provide the most professional attitude to the public.  By doing your part in being cordial and amicable to the officer, you can cover yourselves when a high profile incident occurs and you are less likely to be injured or killed by the officer too.   

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