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Know Your Rights: Consent and Video

by Deedra Abboud in Mindset, Social Views, Solutions
July 7, 2020 0 comments

In the United States, interactions between police and citizens fall into three general categories:

1) consensual [“contact” or “conversation”],

2) detention [often called a Terry stop, after Terry v. Ohio, 392 U.S. 1 (1968)],

3) arrest.

Consensual

At any time, police may approach a person and ask questions.

The person approached is not required to identify himself or herself or answer any other questions, and may leave at any time. 

Police are not required to tell a person that he or she is free to decline to answer questions and go about her business; however, a person can usually determine whether the interaction is consensual by asking, “Am I free to go?”

Detention – Pedestrian

A person is detained when circumstances are such that a reasonable person would believe he is not free to leave.

“Stop and identify” laws pertain to detentions.

Both State (Arizona V. Serna, 2014) and Federal Courts (Terry v. Ohio, 1968) have held that in order for a frisk to be constitutional a two prong test must be met. Police can legally frisk a person they encounter when the following factors exist:

  1. Police have a reasonable suspicion that a person is engaged in criminal activity; and
  2. Police have a reasonable belief that the person is armed and dangerous.

Reasonable suspicion must be based on facts that are individualized, objective, and can be clearly articulated. Police need more than just a hunch or a guess that a person is engaged, or about to commit a crime.

Reasonable suspicion requires less proof than probable cause, the standard that must be met in order to arrest someone.

The Arizona Supreme Court found that when a person is encountered in a high-crime area, it does not alone provide justification for a frisk search.  

The Court did recognize the relevancy of considering the factor of a high-crime neighborhood when a person is actually suspected of criminal conduct, and of being armed and dangerous.

Detention – Cars

For the duration of a traffic stop, the US Supreme Court has confirmed a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers.  Brendlin v. California551 U. S. 249255 (2007) .

Accordingly, in a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation.

The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity.

To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

The driver of a vehicle is required to provide a valid Driver’s License. [ARS 28-1595]

Arizona has specifically codified that a detained person, including the passenger of a stopped vehicle, is not required to provide any information aside from their true full name. [ARS 13-2412]

The U.S. Court of Appeals for the Ninth Circuit, which oversees Arizona and several other western states, ruled in 2019 that law enforcement cannot extend a traffic stop because a passenger refuses to give their identification, unless the officer has a reasonable suspicion the person has committed a crime.

You DON’T have to consent to any search of yourself, your car, or your house.

If you DO consent to a search, it can affect your rights later in court. 

If the police say they have a search warrant, ASK TO SEE IT.

It is not always obvious when a detention becomes an arrest.

If you’re unsure, ask. 

Unlike on TV, officers are not required to read you your Miranda rights upon arrest unless and until they plan to question you.

After making an arrest, police may search a person, his or her belongings, and his or her immediate surroundings.

Tell the police NOTHING except your name and address.

You have the right to remain silent and to speak to a lawyer BEFORE you talk to the police.

You must clearly articulate your right to remain silent AND your request for an attorney – “I think” or “Should I” don’t count.

Don’t try to explain or talk your way out of a situation. 

Many innocent people are in jail because they thought they could “explain.” 

Anything you say can and will be used against you.

Engaging in small talk revokes your previously stated right to remain silent.

Filming Police

1) In Arizona, Police officers do not have a reasonable expectation of privacy when performing their jobs.

2) Stand at a safe distance and, if possible, use your phone to record video of what is happening. As long as you do not interfere with what the officers are doing and do not stand close enough to obstruct their movements, you have the right to observe and record events that are plainly visible in public spaces.

3) Police officers may not confiscate or demand to view your photographs or video without a warrant, and they may not delete your photographs or video under any circumstances.

If an officer orders you to stop recording or orders you to hand over your phone, you should politely but firmly tell the officer that you do not consent to doing so, and remind the officer that taking photographs or video is your right under the First Amendment.

Be aware that some officers may arrest you for refusing to comply even though their orders are illegal.

The arrest would be unlawful, but you will need to weigh the personal risks of arrest (including the risk that officer may search you upon arrest) against the value of continuing to record.

4) Whether or not you are able to record everything, make sure to write down everything you remember, including officers’ badge and patrol car numbers, which agency the officers were from, how many officers were present and what their names were, any use of weapons (including less-lethal weapons such as Tasers or batons), and any injuries suffered by the person stopped.

If you are recording the interaction between an officer and someone else, you can try to speak to the person after the police leave.

They may find your contact information helpful in case they decide to file a complaint or pursue a lawsuit against the officers.

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