The tragic deaths of Eric Garner, an unarmed Staten Island man who died on July 17 as a result of a police chokehold, and Michael Brown, an unarmed black man in Ferguson, Missouri who died on August 9 after being shot by a white police officer, have prompted at least one group here in New York City to teach best practices for filming police encounters.
The group, Peoples’ Justice, is the subject of a story by Reeves Wiedeman in the latest issue of The New Yorker. At a workshop put on by Peoples’ Justice that Wiedeman attended, Aidge Patterson, a coordinator with the group, began the session with a quiz that included the following exchange with a 14-year-old filmmaker:
“True of false,” Patterson said. “If you are stopped or arrested, it’s best to answer all the cop’s questions.”
“When I watch ‘Law & Order,’ they say don’t talk to the cops unless you got a lawyer,” Derek, one of the teens, said.
“Right!” Patterson said. “I’m glad they’re dropping some actual knowledge there.”
The dialogue continues, with Derek recalling an encounter with police, who ordered the teens against a wall. Could the police legally look through the teens’ pockets, Derek wondered.
“That’s a search,” Patterson said, drawing a distinction between the city’s stop-and-frisk practice and a search, which requires probable cause.
“But what if they keep going?” Derek said. “Because some cops just don’t care.”
Consequently, the cameras. Peoples’ Justice canvasses neighborhoods with a police scanner and film crews in the hope of chronicling encounters.
Brown’s death and the events in Ferguson that followed highlight how a contemporaneous recording can aid law enforcement and the public in evaluating the lawfulness of a stop. Plus, the public has a First Amendment right to record police officers.
As the workshop also suggests, knowing your rights matters too, especially the protections that the Constitution guarantees to individuals. With that in mind, and a disclaimer that the following does not constitute legal advice, here are some of the basics.
Can the police order you to stop?
Yes, the police can stop and briefly detain you for investigative purposes if they have reasonable suspicion – meaning specific and articulable facts – of wrongdoing. As Patterson notes, the police also can detain you if they have probable cause to think that you’ve committed a crime.
Must you stop if the police ask you to?
Generally yes, but what matters is whether you’re free to leave. That depends on whether you’ve been seized. A seizure occurs when, based on all the circumstances, a reasonable person would not feel free to terminate the encounter or to decline to answer an officer’s questions.
In New York, pursuit by the police is itself a seizure. So is a police officer’s twice ordering you to “hold on a second.” Of course, you’ve also been seized if you are physically restrained.
As a practical matter, if a police officer asks you to stop, and you don’t feel free to terminate the encounter, you’ve been seized.
Can the police look through your pockets?
No, unless you’ve been arrested. If the police detain you (without arresting you) because they think that wrongdoing is present, they can pat down, or frisk, your outer clothing if they reasonably believe that you possess a weapon. If the police encounter something that feels like a weapon, they can reach into your clothing to remove it.
In most states, if the officer feels an object who’s contour immediately suggests contraband (e.g., a weapon or drugs), she can seize that as well. In New York, the police can seize an item only if it appears to be a weapon. Thus, absent encountering something that feels like a weapon, the police cannot reach into or rummage through your pockets.
However, if the police arrest you, they can search your pockets, your clothing and, in most states, any containers within your immediate control. In New York, the police can only search nearby containers if they suspect that you are armed.
What should you do if you are stopped?
Remember that you have no obligation to say anything. In fact, anything you do say can be used against you later. Note that in most states, including here in New York, the police can ask for your name and identification, which you cannot lawfully refuse to provide. (If you’re later arrested, the police also can ask you routine booking questions that you have to answer.)
If you feel you are detained by the police, ask, respectfully, if you are in custody. If the answer is no, then, following a frisk (assuming the police reasonably believe you may be carrying a weapon) you are free to leave.
What are your rights if arrested?
An arrest triggers a whole series of rights under the Fifth Amendment. Many will be familiar to anyone who’s watched televised police dramas.
You have the right to remain silent. Anything you say can be used against you in court. You also have the right to the presence of an attorney. If you cannot afford an attorney, one will be provided to you if you so desire.
This so-called Miranda warning matters in several ways. First, the police must read it to you if you’re arrested. The failure to read you your rights means that prosecutors generally cannot use anything you later say against you at trial.
Second, a Miranda warning triggers other protections, chiefly the right to an attorney. If you ask for an attorney, all questioning must stop. Immediately. But your request must be unambiguous and specific, e.g., “I request the presence of my attorney and respectfully decline to answer any questions without my attorney present.”
In a future post I’ll review the right to counsel.