Know Your Rights
Here’s a few things you should know.
A big thanks to flexyourrights.org for making the videos above.
Here is a few Q&A’s from flexyourrights.org:
- Are drug checkpoints legal?
- What are my rights at sobriety checkpoints?
- When are police allowed to frisk me?
- What if police threaten to call the dogs?
- When are police allowed to search my home?
- When do I have to show police my ID?
- Do undercover police have to reveal their identity when asked?
- What are the rights of passengers during a traffic stop?
- If police have a search warrant, do they have to show it to me?
- What if police say they smell marijuana?
- What if I refuse, but police search me anyway?
- What are my rights with private security guards?
Got more questions? Try the FAQ section at flexyourrights.org/faq
Are drug checkpoints legal?
No. Drug checkpoints are a trap! The Supreme Court has ruled that random checkpoints for the purpose of finding illegal drugs are unconstitutional. However, police sometimes put up signs warning drivers of up-coming drug checkpoints and instead pull over people who make illegal u-turns or discard contraband out the window. If you see a sign saying “Drug Checkpoint Ahead”, just keep driving and don’t panic. If there’s a rest area following the sign, DO NOT pull into it. If you do, you’ll find yourself surrounded by drug-sniffing dogs.
Police departments, especially in the Mid-west, have been pushing their luck with this tactic, so if you encounter anything resembling an actual drug checkpoint, please contact that state’s ACLU Chapter. Similarly, if you’re arrested as a result of a real or fake “drug checkpoint”, you must contact an attorney to explore your legal options.
What are my rights at sobriety checkpoints?
Sobriety checkpoints — also known as DUI checkpoints — are the most common roadblocks you might encounter. They function as a general purpose investigatory tactic where police can get a close look at passing motorists by detaining them briefly. A roadblock stop is quick, but it gives police a chance to check tags and licenses, while also giving officers a quick whiff of the driver’s breath and a chance to peer into the vehicle for a moment.
Remember that your constitutional rights still apply in a roadblock situation. Though police are permitted to stop you briefly, they may not search you or your car unless they have probable cause or you agree to the search. Keep in mind that if you’re driving under the influence, your constitutional rights provide very little protection in this situation.
Since the Supreme Court’s ruling in Illinois v. Caballes police have more leeway to use drug-sniffing dogs in roadblock situations. There’s no need to waive your rights simply because dogs are present. But be advised that your legal options are limited if you’re arrested as a result of a dog sniff during a roadblock.
Also keep in mind that police closely monitor cars approaching the roadblock. So you’re not likely to have any success trying to evade it.
Sobriety checkpoints are generally permitted by the courts, but only if conducted properly. If you’re arrested at a police roadblock always consult an attorney before confessing or agreeing to a plea bargain. There might be some legal options that your lawyer can pursue.
When are police allowed to frisk me?
If they have reasonable suspicion to detain you, police may conduct a pat down (frisk) of the outside of your clothing to check for weapons, but only if they have a basis for suspecting you’re armed.
If they feel a hard item that might be a weapon, police may reach into your pockets. Sometimes officers reach into suspects’ pockets looking for drugs even if they don’t feel a weapon. This is common, but it’s illegal.
Police may ask you to reveal the contents of your pockets. Just like other search requests, you have the right to refuse.
What if police threaten to call the dogs?
Your rights do not disappear if the officer threatens to call in the dogs, so don’t let this all-too-common tactic intimidate you into consenting to search requests.
Usually, the officer won’t have a police dog on hand and he needs reasonable suspicion to detain you while waiting for the K-9 unit. Before the dogs arrive, you have the right to determine if you can leave by asking “Officer, am I free to go?” If the officer refuses and detains you until the dogs come, you have the right to remain silent and refuse to consent to any searches.
If a K-9 unit arrives, you have the right the right to refuse to consent to a dog sniff, even if the officer claims you have to. Be aware that unlocking your car at the officer’s request or handing the officer your keys is the same as consenting to a search. You always have the right to refuse by stating “Officer, I don’t consent to any searches.” Repeat, if necessary.
If a judge determines that officer had no justification to detain you until the dog arrived, any evidence discovered by the dog can be thrown out in court
When are police allowed to search my home?
The Supreme Court has ruled that the home is entitled to maximum protection from police searches and seizures. Specifically, the court has ruled that even if police have probable cause to believe that something illegal is going on inside your home, the 4th Amendment requires them to get a signed warrant from a judge to legally enter and search. The major exception to the search warrant requirement is where consent is given to an officer’s request to enter. If, for example, an officer is legally invited into your home, any illegal items that are out in the open — or in “plain view” — can be seized as evidence, which can lead to an arrest. That being the case, it’s always wise to keep any private items that you don’t want others to see out of view of your entrance area.
As is often the case, a naïve friend, family member, or roommate may invite police into your home. So they too should be aware of their right to refuse police entry.
The other less frequently invoked exception to the warrant requirement falls under the category of emergency — or exigent — circumstances where there’s immediate danger. For example, if police enter your home in pursuit of a violent criminal suspect, any illegal items in plain view many be seized as evidence.
When do I have to show police my ID?
This is a tricky issue. As a general principle, citizens who are minding their own business are not obligated to “show their papers” to police. In fact, there is no law requiring citizens to carry identification of any kind.
Nonetheless, carrying an ID is generally required if you’re driving a vehicle or a passenger on a commercial airline. These requirements have been upheld on the premise that individuals who prefer not to carry ID can choose not to drive or fly.
From here, ID laws only get more complicated. In Hiibel v. Sixth Judicial District Court of Nevada, the Supreme Court upheld state laws requiring citizens to disclose their identity to police when officers have reasonable suspicion to believe criminal activity may be taking place. Commonly known as “stop-and-identify” statutes, these laws permit police to arrest criminal suspects who refuse to identify themselves.
As of 2008, 24 states had stop-and-identify laws. Regardless of your state’s law, keep in mind that police can never compel you to identify yourself without reasonable suspicion to believe you’re involved in criminal activity.
But how can you tell if an officer asking you to identify yourself has reasonable suspicion? Remember, police need reasonable suspicion to detain you. One way to tell if they have reasonable suspicion is to determine if you’re free to go. You could do this by saying “Excuse me officer. Are you detaining me, or am I free to go?” If the officer says you’re free to go, leave immediately and refrain from answering any additional questions.
If you’re detained, you’ll have to decide whether withholding your identity is worth the possibility of arrest or a prolonged detention. In cases of mistaken identity, revealing who you are might help to resolve the situation quickly. On the other hand, if you’re on parole in California, for example, revealing your identity could lead to a legal search. Knowing your state’s laws can help you make the best choice.
Keep in mind that the officer’s decision to detain you will not always hold up in court. Reasonable suspicion is a vague evidentiary standard, which lends itself to mistakes on the officer’s part. If you’re searched or arrested following an officer’s ID request, always contact an attorney to discuss the incident and explore your legal options.
Do undercover police have to reveal their identity when asked?
No. It’s commonly believed that undercover police have to reveal their identity when asked. This is false. Police are allowed to lie in order to make arrests.
Undercover officers in particular are very skilled at manipulating suspects and concocting clever stories to conceal that they are police. Note that police can also use drugs and do other things you wouldn’t expect a cop to do.
There’s no trick for finding out if someone is an undercover officer. If you’re concerned about this, just be careful around people you don’t know and reconsider any activities that are making you nervous. The one thing all undercover cops have in common is that they want people to commit crimes. Avoid anyone who pressures you to do something illegal.
What are the rights of passengers during a traffic stop?
Traffic stops typically occur as a result of suspected moving violations committed by the driver of the vehicle. Passengers cannot be held responsible for the driver’s conduct and are generally free to leave, unless police become suspicious of them during the course of the stop.
Unfortunately, this happens frequently and the amount of evidence required to detain passengers is minimal. For this reason, passengers must remember to refuse search requests and refrain from answering questions without an attorney present. Police who suspect criminal activity will often separate the occupants of an automobile and question them separately. If their stories differ, this could lead officers to claim that they have probable cause to prolong the detention or conduct a search.
As with any other brief detention, the best way to handle this situation is to determine if you can leave by asking “Officer, are you detaining me, or am I free to go?”
The purpose of the warrant is to establish legal authority to conduct the search and create a paper trail in case the search is challenged. Since executing a search warrant is considered a high-risk activity for police, officers are permitted to enter quickly and forcefully. If you have doubts about the legality of a search warrant issued against you or your property, you’ll need to discuss the matter with your attorney.
Remember that police don’t need consent to search if they have a warrant. But if officers ask for consent to search, you always have the right to refuse even if they claim that they have a warrant or that they can easily get one.
What if police say they smell marijuana?
This is a tough situation. Smelling marijuana does give police probable cause to search your car. For this reason, police are quick to claim that they smell something and sometimes they might even lie about it. All you can really do is say, “Officer, I have nothing to hide, but I don’t consent to any searches.” If they search you anyway and something is found, you’ll need an attorney to help you fight the charges.
Unfortunately, police sometimes use tricks like this to circumvent your constitutional rights and there’s no perfect way to handle the situation. Of course, they are most likely to do this if they are suspicious of you for some reason, so do your best to stay calm. In many cases, the officer will mention marijuana just to see how you react. If you appear nervous, the officer’s suspicions will escalate.
Police often think they can tell by looking at you whether you’re a “pothead,” so be extra careful if there’s anything about your appearance that might draw their attention. How you dress and what kind of vehicle you drive is a personal choice, but police definitely look out for certain “stoner” stereotypes. If your look makes you stick out, you should think carefully about what items to keep in the car with you.
Finally, never smoke marijuana in or around your car. At Flex Your Rights, they hear many stories from people who’ve been arrested, and smoking marijuana in public places like vehicles is the #1 cause of avoidable arrests.
What if I refuse, but police search me anyway?
Unfortunately police sometimes search you even if you refuse consent. If they find anything illegal and you’re arrested, you’ll have to get a lawyer and fight it out in court.
If the officer convinces the judge that there was probable cause to search without your consent, then the evidence will be admissible in court. If your lawyer convinces the judge that there was no probable cause, then the evidence will be thrown out and your charges will be dismissed.
Every case is unique, so it’s hard for us to tell you how good your chances are in your particular case. Your attorney should be able to tell you what to expect from the judges in your area.
If you’re searched illegally and nothing is found, you may consider taking legal action or at least filing a complaint. Local attorneys, as well as your local ACLU and NAACP chapters may be able to help you.