Know Your Legal Rights!
“People who mean to be their own governors must arm themselves with the power which knowledge gives.”– James Madison letter to W. T. Barry, August 4, 1822
As a citizen of the United States, you have constitutional rights that protect you from unlawful police actions. Your constitutional rights protect you, if you are arrested and charged with a crime. These rights are fundamental to our free society– they are not meaningless technicalities!
Government has awesome power. City, county, state and federal police agencies back up local prosecuting attorneys who have virtually unlimited resources to prosecute your case. All you have is yourself, your financial resources, your lawyer and your Constitutional Rights. These rights are a wise gift from our country’s founders, who had a very clear understanding of how fragile individual freedoms are when confronted by the awesome powers of government.
Do not be afraid to exercise your rights as an American. These rights keep individuals strong and keep the powers of government in check. Remember this: since the beginning of our great nation, many Americans have shed their blood and even given their lives for your constitutional rights–value your rights accordingly. Additionally, while we should all respect police officers where respect is due, if a cop stops you and arrests you illegally, the cop is no better than a common criminal; no better than an armed kidnapper. Such illegal police conduct not only violates state constitutional and criminal law, it violates the supreme law of the land–The United States Constitution. Such police action is criminal behavior in every moral and legal sense of the term “criminal.”
Police officers are not entitled to break the law to enforce the law; if they break the law to enforce the law, it is a betrayal of their sworn duty to uphold the laws and constitution of their State and The United States America. As an American, your rights include:
You have the right to be free from unreasonable searches and seizures. A cop must have legal justification to stop you or your vehicle. If the cop “detains” you for longer than it takes to address the reason for a pedestrian or traffic stop, then he has to have specific facts by which he can demonstrate a “reasonably founded suspicion” that you are committing a crime. A “bare suspicion” of criminal activity is not good enough. You can be detained only for the time that it should reasonably take to confirm or refute any reasonable suspicion that the law is being violated. You have the legal, constitutional right to be free from unreasonable stops by cops. If the cops stop you or your vehicle illegally, then any evidence obtained as a result of that illegal action may be thrown out of court. If the cops detain you without a founded suspicion or detain you for longer than is reasonable to write a traffic ticket or confirm or refute any criminal activity, then you may be able to have the case thrown out of court. A cop may do a “pat down,” or “frisk” search for his safety, but only if there is some reasonable basis to believe that there is a threat of danger to himself. Your right to be free from illegal stops and searches is guaranteed by the Fourth Amendment, which provides in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… .”
A cop must have “probable cause” before he can legally arrest you for a crime. Probable cause is enough evidence to lead a reasonable person to believe that you are committing a crime. A cop can also search your person or your immediate surroundings, if the cop has probable cause to believe that you are in possession of illegal contraband. If the cop suspects the citizen is committing a crime, the cop will want to establish probable cause to arrest the citizen, and the citizen will want to go free. This is a classic clash of police power and individual liberties. Know your rights! Exercise your rights! They are sacred rights offered to you from the blood soaked alter of American Liberty. The cop has awesome power, but you, as an American, also have awesome power: Constitutionally Guaranteed Individual Rights and Liberties! It is important for the citizen to avoid any ambiguity at this point of a stop by the cops. Be courteous and polite, but do not give the cop a break; the cop will not give you a break. This is the most crucial stage of a stop. Are you free to go, or are you under arrest? Throughout the stop about every minute, politely ask the cop if you are under arrest. If the answer is no, then ask if you can leave. If the cop says he suspects you have committed a crime, you might respond by telling the cop that you don’t know why he has such a suspicion, but that you want to be on your way. If the cop arrests you without first establishing probable cause, then the arrest is illegal. Your right to be free from illegal arrests is protected by the Fourth Amendment.
You have the right to remain silent. You may refuse to answer any questions asked of you. Your right to remain silent is guaranteed by the Fifth Amendment, which provides no person “shall be compelled in a criminal case to be a witness against himself.”
The Fifth Amendment also protects you from being twice placed in jeopardy of criminal prosecution or criminal conviction or punishment for the same criminal offense.
You have the right to a lawyer. Once you are arrested, you have the right to have an attorney present during any questioning or during any court appearances. Your right to a lawyer is protected by the Sixth Amendment.
You have the right to “due process of law.” For example, the cops cannot beat a confession out of you, because that would violate your due process rights. Additionally, the cops can’t promise to go easy on you in return for a confession, that would be unfair and the confession would be unreliable. “Due Process of Law” simply means if you are arrested, you have the right to be treated fairly by the government. Your right to fair and just treatment is protected by the Fifth Amendment, which provides that no person “shall be deprived of life, liberty, or property, without due process of law.”
You also have the right to be presumed innocent under the law (even though the sad reality is that, as a practical matter, you are presumed guilty and treated like a common criminal). The presumption of innocence is one of your constitutional shields against the awesome prosecutorial powers of the state.
You have the right to a speedy, public and fair trial by a jury of your peers. If you contest the criminal charge, you have a right to have a jury of your peers decide whether you are guilty or not guilty. The Sixth Amendment protects your right to a jury trial.
You have the right to a reasonable amount of bail. Excessive bail is prohibited by the Eight Amendment.
You have the right to be free from cruel and unusual punishment. The Eight Amendment also protects you from cruel and unusual punishment.
“A society of sheep will produce a government of wolves.”– Bertrand de Jouvenal
We all know how things are supposed to be “in theory.” The harsh reality is that police can and often do anything they want out on the streets. Most cops are good citizens who do a good job for their communities. However, some cops abuse their power. Some cops won’t hesitate to lie about their actions or your actions. Some are worse than others and a lot of cops may treat you differently if they realize you know your rights. The bad cops depend on fear and intimidation to get what they want. Don’t let bad cops get away with more than they are allowed to because of fear and intimidation. If you run into a really bad cop, talking back to him and standing up for your rights might get you beaten up or killed, so be careful about the realistic limits of the law and of your rights as an American. Bad cops are perhaps the most dangerous members of our society, so pay attention when you encounter them. Stay in control of your words and actions. Do nothing to threaten a cop, and never make the mistake of touching a cop.
When a police officer stops you on the street, the law says that the stop will fall into one of three categories:
- Consensual contact,
- Detention and
- Arrest. Which category you’re in determines how much power the cops have over you and what rights you have to counteract the police power.
“When the people fear the government, you have tyranny. When the government fears the people, you have freedom.” — Thomas Paine
The least intrusive police-citizen encounter is “consensual contact.” This means that the officer comes up to you and asks, “can I speak with you?” If you say “yes,” you have consented to have contact with the police. That is very bad. The result of such “consent” is that you won’t have important “rights” under the Constitution. Especially if you think you may be guilty of something (you have a warrant out on you, you are carrying drugs, and you just did something illegal), you should never consent to talk to a police officer. This may sound backwards to you. The normal impulse when confronted with a cop is to try to convince them that you aren’t doing anything illegal. If you follow such an impulse, you are not likely to talk your way out of the situation and if the cop gets you on something, you won’t be able to get out of it later in court. Never voluntarily talk to the police! If you don’t think you are guilty of anything, it still isn’t a good idea to consent to talk to a cop. You never know where the conversation will go or how the conversation will end up.
Some people might figure, “well, I’m not guilty of anything, so I’ll let the police stop me and ask me a few questions and then I will be on my way.” But, that is irresponsible and it is a big mistake, because it encourages cops to mess with your individual liberties, and it encourages a police state mentality. In addition, it will encourage the idea that people who don’t want to talk to the police have something to hide.
Here is how to avoid a consensual encounter with the police: If the cop asks, “can I talk to you,” answer with something like, “I’m sorry, I’m in a hurry and I don’t have time to talk to you right now.” If the cop insists, ask him, “Are you detaining me, or am I free to leave?” Ask this several times to make sure the cop will have a hard time denying it and saying you didn’t mention it later if you end up in court. If it is really a consensual contact, the officer ought to let you go on your way, if you ask to go. If you don’t actually ask to leave, the court will presume that you consented to whatever follows.
“The Constitution is not neutral. It was designed to take the government off the backs of people.” –William O. Douglas, Supreme Court Justice
The next category of police-citizen contact is called a detention. The police are only allowed to detain a citizen when there are specific facts that can be articulated supporting a reasonable suspicion that the citizen is involved in criminal activity. This means that cops can’t detain you on a “hunch, guess, or bare suspicion.” Specific, articulable facts are facts that the police must have observed or otherwise learned about that link you with specific criminal activity. If the police detain you without such a factual foundation, the detention is illegal and whatever they obtain as a result of the detention (evidence or arrest) cannot be used against you in court. How does this all work in real life?
A common detention occurs in a DUI stop. Normally, the stop is based upon some traffic violation. Once the cop has you stopped, he must complete his business (ie: the detention) and let you go on your way, or arrest you. While the cop may have stopped you for speeding, or some other traffic violation, he really wants to arrest you, if he suspects you of DUI. To do this, he will try to get as much information from you as he can. He wants this information to help him establish probable cause, to justify arresting you. Do not give the cop probable cause to arrest you. Do not answer any questions that may incriminate you. You must provide your driver’s license, registration, and proof of insurance, upon request. But, be careful not to volunteer any further information. Admitting to drinking alcohol will incriminate you, so be careful. You should never admit to having more than one drink. Typically, the cop will ask where you have been and where you are going, and also ask if you have been drinking, and if so how much. All of such questions are intended to establish probable cause to arrest you. You do not have to answer such questions. You may simply tell the cop that you would like an attorney present during such questioning. The cop will want you to perform the field sobriety tests (such as, the walk-and-turn, finger-to-nose, one-legged-stand, etc.). You do not have to take these tests. In Florida and most other states, you will not lose your license for refusing the field sobriety test. You should refuse to take the field tests, because the tests are designed to make you look drunk and to help establish probable cause to arrest you. If you refuse to take the breath or urine test, you can lose your license for one year. A DUI stop is not the only kind of detention.
Suppose the police stop you because it is late at night, you are walking down the street, and you look “suspicious,” or “strange,” to the cops. The cop might ask, “Excuse me, may I talk to you?” If you reply, “Yes,” have just consented to talk to the police. That is not good, because the officer may notice something, after talking to you for a few seconds that may give him justification to detain you or pat you down, search you or even arrest you. For example, if the cops notice a bulge in your clothing, they now have cause to detain you, pat you down and could eventually arrest you, if the bulge is pot or some other illegal substance. If, however, you replied, “No, I have to go,” then the cops are supposed to let you go, because they do not have legal justification to detain you; they have no reasonable suspicion supported by specific facts that you are involved in criminal activity. The only facts they have is that you look suspicious.
If the cop says, “Well, you can’t go,” or otherwise detains you, then if they do find reason to arrest you, you may be able to get the case thrown out of court, because the original detention may have been illegal. If the officer detains you and finds nothing, you should complain to the city, a city representative or the police department. Often, when you start exercising and enforcing your rights and using terms like “detention,” “reasonable suspicion,” “specific facts,” “articulable facts,” and “probable cause,” the cop is not going to mess with you.
A lot of a bad cop’s power comes from intimidation and public ignorance. It is crucial that you let the officer know that you are not “consenting” to talk to him, that you know what your rights are, that you are exercising those rights and that the only way you will talk to him is if he detains you. The cops may have justification in some cases to detain you, and there is nothing illegal about a police detention, if the cops have a reasonable suspicion of criminal activity supported by specific facts that can be articulated. On the other hand, not just anything is a “specific and articulable fact” supporting a suspicion that you are involved in criminal activity. There has to be more than a bare suspicion and the facts supporting the suspicion have to be specific.
A lot of police harassment situations involve the police stopping citizens because they look suspicious and then the bad cops go on a “fishing expedition” looking for a valid reason to detain or arrest the innocent citizen. Do not consent to a police encounter that has no legal justification. Don’t consent to a fishing expedition. Don’t give the cop a chance to pin some bogus charge on you. Just say no to illegal police action!
“Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master.” –George Washington, speech of January 7, 1790 in the Boston Independent Chronicle, January 14, 1790
The most serious police-citizen contact is an arrest. For an arrest, the police need a high level of suspicion of your involvement in criminal activity–the cops must have probable cause to justify an arrest. Probable cause can be a complicated concept. But, there is a simple definition of probable cause: that amount of evidence which would lead a reasonable person to conclude that a crime is being, is about to be, or has been committed, and that you committed the crime. Therefore, before a cop can arrest you, the cop must have enough evidence (facts, knowledge, etc.,) to lead a reasonable person to conclude that you had committed, were about to commit, or were in the process of committing a crime.
If you are arrested, the police can search you as part of the arrest. If the officer asks to search you without arresting you, you can say no. The police have the right to search for weapons if they feel in danger of being attacked. They are not allowed to search people for other items. In a lot of cases the police ask to search a citizen and get consent to search them. That is not a good thing. Individual liberties are sacred. Individual liberties are very rare in the history of the world. As Americans, we all have a duty to exercise our constitutional rights. Exercising constitutional rights keeps the rights strong and keeps America free. Waiving constitutional rights weakens and erodes the individual rights, and that in turn creates fertile soil for tyrants, dictators and a police state to grow.
If you consent to a search, even though the search isn’t justified, it will be legal because you will have waived your individual right to be free from unreasonable searches by the cops. If the cop asks to search you or any of your property, tell them you don’t have any weapons and ask if you are being detained, or if you are under arrest or if they have a warrant. If you aren’t and they don’t, tell them you are an American citizen and that you would prefer to exercise your Constitutional Right under the Fourth Amendment to be free from unreasonable searches.
They may ask many times and seem to be acting with complete authority. But, just say no to illegal police action. Tell them you will not let them search you unless they arrest you or have a warrant. You may want to reassure them that you don’t have a weapon. If they and search you anyway and find something, you may be able to get the case thrown out of court.
If the cop is a good cop and obeying the law while enforcing the law, then the cop should leave you alone. The fact that you refused to be searched does not make you more “suspicious” and give them an excuse to search. Of course as stated above, the police may ignore all of these laws and they may be less than polite and may even use unlawful force. When a cop gets out of control, deal with the situation carefully. But, don’t voluntarily consent to a police-citizen encounter, and don’t consent to a search.
“As nightfall does not come at once, neither does oppression. In both instances, there’s a twilight where everything remains seemingly unchanged, and it is in such twilight that we must be aware of change in the air, however slight, lest we become unwitting victims of the darkness.”– William O. Douglas, Supreme Court Justice
Being arrested can be a very frightening and confusing experience. Knowing what your rights are at least gives you some guidelines to follow. If you are arrested, the most important things for you to remember are:
- Anything you can say can and will be used against you; and
- You have the right to ask for an attorney to be present before you can be questioned.
No matter what the reason for your arrest, the police are required by law to inform you of the charges against you. Before you are questioned, they must tell you that you have the right not to answer any question or give any statement because your answers or statements may be used against you at a later time. You may have heard of this right under the name of Miranda warnings.
Remember, you do not have to answer any questions; your silence cannot be used against you. Blurting out statements to the police at the time of arrest can result in those statements being used against you. If you are arrested, you have the right to know the name of the arresting officers you are dealing with. This is your right by law and by custom.
Do not try to make bargains with the police. In most cases, it is best to keep your mouth shut. The job of the cops is simply to take you into custody and build the case against you. Trying to bribe an arresting officer and resisting arrest are other crimes that you can be charged with. The police do not have the authority to make binding deals for the state. It is up to your defense attorney to negotiate with the prosecuting attorney and the police, if your case reaches that point.
You have the right to make one telephone call as soon as practicable after you are brought to a police station. You may call a family member, a friend, your attorney, or anyone else who can help you.
The police have a right to complete their booking procedure before you are allowed to use the telephone. The booking procedure will consist of giving the police basic information about yourself, being fingerprinted and photographed.
Remember, you should not talk to anyone about your arrest. If you cannot afford a private attorney, the Public Defender’s office will be appointed to represent you. The Public Defender’s office is staffed with attorneys available to give you important legal advice following your arrest. However, you will not likely have any meaningful contact with a public defender until just before or after arraignment.
If at all possible, you should have an attorney present when talking to cops.
If you have strong ties to the community, own a home, have local relatives, a job, etc., you may be released on your own recognizance–which means you do not have to pay any money to get out of jail or post any kind of other property, and you promise to appear in court when directed. You may also be released on bail, which involves the posting of either cash or a surety bond as security for your court appearance. Bail bonds from licensed sureties are usually available at a cost of 10 percent of the amount of bail. The decision to release you or the amount of bail can often be made by someone at the jail. You should find out who is in charge of pretrial release at the jail. Normally, information about how to get in touch with a licensed bail surety is posted in the booking area.
If you are taken into custody and booked into the jail and are not released within 24 hours, you must be brought before a judge. At that appearance, the judge will inform you of the charge against you and also ask you whether you can afford to hire an attorney. If the judge decides you cannot afford to hire your own private lawyer, the judge will appoint the public defender’s office to represent you. At this time, you can also ask the judge to reconsider the amount of bail that has been set based on your ties to the community, financial resources, employment record, or any other factors.
Upon arrival at the jail, or shortly thereafter, you will be given an opportunity to contact your attorney. The attorney may arrange for the posting of the bond and may appear in court with you to ask the judge to lower the bail amount.
If you are arrested, remember you have the protections of the Constitution of the United States and of the State of Florida. You do not have to answer any questions, and you have the right to demand an attorney as soon as you are taken into custody.