Know you 4th Amendment Rights

Kristeen Irigoyen-Hernandez aka Lady2Soothe

4th Amendment

Police officers are not held to the same standards as civilians, they operate under policy not law; this is the difference between legal and lawful. A cop’s job is to enforce the laws, all of them as a condition of employment and must voluntarily agree to enforce unjust laws as well as just laws. Police agree to perpetuate injustice; therefore every cop has to agree to act as an enforcer for laws which are manifestly unjust or even cruel and wicked. The majority of these laws were implemented for one thing and that’s “Revenue”. A cop might have “good intentions”, but these good intentions don’t change the fact they’re a part of an institutionalized system. So always remember ‘nice’ is not synonymous with good; therefore there are no good cops.

Driving is not a right it is a privilege. If you drive a motor vehicle on public roads, you are subject to the regulations imposed by the government concerning those roads. At a traffic stop, you are not allowed to deny giving an officer your ID. You are required to hand it over when asked. Anytime an emergency vehicle stops you, you’re being detained. If police flag you down, pull over immediately, turn off your car, and place your hands on the wheel. If the officer asks for your license, registration and insurance give it to him/her. If you’re ordered to exit the vehicle, do so immediately. But if the officer tries to use your traffic violation as a basis for a further investigation, minor traffic violations (e.g. speeding, broken tail-light or expired registration) these ARE NOT CONSIDERED PROBABLE CAUSE.

Most police are able to exploit a major loophole to the probable cause search requirement by tricking you into giving up your constitutional rights. REMAIN SILENT: What you don’t say can’t hurt you but anything you do say can and will be used against you. Don’t announce you know your rights. They consider it a challenge.

YOU HAVE THE RIGHT TO REMAIN SILENT
Up until 2010 this used to be definitively true, however you now must SAY THE ACTUAL WORDS OUT LOUD asserting your right to stay silent per the Supreme Court Ruling by Supreme Court Justice Sonia Sotomayor “Criminal suspects must now ambiguously invoke their right to remain silent, which counter-intuitively, requires them to speak. Suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.” If you need to say anything at all say “I chose to remain silent. I want to speak with a lawyer.”

Police attempt to make you admit to breaking a law “You don’t mind if I have a look in your car?” is the LEGAL LOOPHOLE the officer wants to snare you with; it’ll sound like a command, but it’s only a suggestion. If you decline they’ll say “What do you have to hide?” Don’t fall for this manipulation trick. If necessary, repeat your refusal. By using psychological intimidation techniques and demoralizing scare tactics they’re obligating YOU to prove your innocence. Remember it’s their job to prove you’re guilty; it’s NOT your job to prove you’re innocent.

Silent 2

Most avoidable police searches don’t occur because police have probable cause. They occur because people are hoodwinked and intimidated into consenting to search REQUESTS. The 4th Amendment protects your RIGHT TO REFUSE, but it doesn’t require police to tell you about your right to refuse. Consenting to searches AUTOMATICALLY makes the search legal in the eyes of the law. When you’re pulled over, don’t try to figure out whether or not the officer has probable cause. YOU ALWAYS HAVE THE RIGHT TO REFUSE SEARCHES and you can say “Officer, I know you’re just doing your job, but I don’t consent to searches.”

Opening your car door doesn’t mean you consent to a search. An officer’s *belief* a phone may have evidence of a crime is NOT enough to claim probable cause to seize the phone. Police need *Probable Cause* which is a reasonable belief a person has committed or will commit a crime in order for them to confiscate any relevant evidence found in connection to said crime. Police must have EVIDENCE of a crime before seizing a person’s cellphone. Law enforcement CANNOT search a cellphone WITHOUT a warrant. Police may demand and threaten, but they DO NOT have the power or authority requiring you to tell them your security code which is considered testimonial and falls under self-incrimination. Also YOU ALWAYS HAVE THE RIGHT TO REFUSE SEARCHES. If the officer does not have probable cause to search the vehicle, the search is unconstitutional under the court’s Riley decision.

“STOP AND IDENTIFY” statutes are statutory laws in the US authorizing police to legally obtain the identification of someone whom they REASONABLY suspect has committed a crime. If the person is NOT REASONABLY SUSPECTED of committing a crime, they are NOT REQUIRED TO PROVIDE IDENTIFICATION, even in states with stop and identify statutes.

The FOURTH AMENDMENT (Amendment IV) to the US CONSTITUTION is the section of the BILL OF RIGHTS PROHIBITING UNREASONABLE SEARCHES AND SEIZURES and REQUIRES any warrant to be JUDICIALLY SANCTIONED and SUPPORTED BY PROBABLE CAUSE.

If you’re not doing anything wrong Police attempt to convince you producing an ID is a “Get Out Of Jail Free” card. However, no lawful obligation exists for a citizen to even own an identification card, therefore there is no lawful obligation for anyone to carry an identification card; Since there is no lawful obligation to have one, there can also be no penalty for refusing to produce one. Read the “Stop and ID” codes, they are NOT “laws”, they are “codes/statues” and those codes/statues do not place any lawful obligation upon anyone owning or carrying an identification card. These codes/statues only establish that a cop can ASK, NO OBLIGATION on the person to produce.

Unless you’re detained or arrested, you may terminate the encounter anytime. But don’t wait for the officer to dismiss you. Ask “Am I free to go.” If the officer threatens to call in a K-9 unit, ask “Officer, are you detaining me, or am I free to go?”

Not only can this line can help withdraw you from an encounter, it also deflects any of the officer’s probing questions or threats. If the officer says; “If you cooperate with me, everything will go easy for you.” Respond by stating “I don’t consent to any searches” or “Am I free to go?” If you’re let go, leave immediately. If the officer’s answer is unclear, or if you’re asked additional questions, repeat “Officer am I free to go?”

If you are not free to go, you are officially detained as they might have some reason to suspect you of a crime, and you may be arrested. In such a situation upon questioning say “I chose to remain silent. I would like to see an attorney.” NEVER rely on the police to inform you of your right to remain silent and/or secure a lawyer. Upon further questioning if necessary, but say nothing else. REMEMBER ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU.

Miranda Warning

CONSENSUAL
Police may approach a person and ask questions. The objective may simply be a friendly conversation; however, the police also may SUSPECT INVOLVEMENT in a crime, but lack “SPECIFIC AND ARTICULABLE FACTS”.

REASONABLE SUSPICION
Police may BRIEFLY detain a person if they have reasonable suspicion the person has committed, is committing, or is about to commit a crime or reasonably suspect may be armed and dangerous.

ARREST
A detention requires only that police have REASONABLE SUSPICION a person is involved in criminal activity. However, to make an arrest, an officer MUST HAVE PROBABLE CAUSE to believe the person has committed a crime.

Silent

TERRY STOP
A brief detention of a person by police on REASONABLE suspicion of involvement in criminal activity but SHORT OF PROBABLE CAUSE TO ARREST. A person detained can be questioned but is “NOT OBLIGED” to answer, REFUSAL TO ANSWER FURNISHES NO BASIS FOR AN ARREST.

The Supreme Court of the United States states police may briefly detain a person they reasonably suspect is involved in criminal activity; the Court also held police may do a LIMITED search of the suspect’s outer garments for weapons IF they have a REASONABLE and ARTICULABLE (legal standard) SUSPICION the person detained MAY be “ARMED AND DANGEROUS”.

To have reasonable suspicion to justify a stop, POLICE MUST BE ABLE TO POINT TO “specific and articulable facts” indicating a crime has been, is being, or is about to be committed.

The search of suspect’s outer garments, also known as a pat-down, must be LIMITED to what is necessary to discover weapons; however, pursuant to the “PLAIN VIEW” doctrine, police may seize contraband discovered in the course of a frisk, but ONLY if the contraband’s identity is immediately apparent.

TRAFFIC STOPS
A traffic stop is, for practical purposes, a Terry Stop; for the duration of a stop, driver and passengers are “seized” within the meaning of the Fourth Amendment. The U.S. Supreme Court has held drivers and passengers may be ordered out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.

Drivers and passengers may be searched for weapons upon REASONABLE SUSPICION they are armed and dangerous. If police reasonably suspect the driver or any of the occupants may be dangerous or the vehicle may contain a weapon to which an occupant may gain access, police may perform a protective search of the passenger compartment without a warrant, probable cause, or the driver’s consent. Police may not search the vehicle unless under the “PLAIN VIEW” doctrine to seize and use as evidence weapons or contraband visible from outside the vehicle.

CONSTITUTIONAL PROTECTIONS AGAINST UNREASONABLE SEARCH AND SEIZURE PREVENT POLICE FROM EXTENDING AN OTHERWISE *COMPLETED* TRAFFIC STOP TO ALLOW FOR A DRUG-SNIFFING DOG TO ARRIVE.
The Supreme Court ruled April 21, 2015 the Constitution forbids police from holding a suspect without probable cause, even for fewer than 10 extra minutes. Justice Ruth Bader Ginsburg declared Fourth Amendment Constitutional Protections against unreasonable search and seizure prevent police from extending an otherwise completed traffic stop to allow for a drug-sniffing dog to arrive. “The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ — to address the traffic violation that warranted the stop,” Ginsburg ruled. “Authority for the seizure thus ends when tasks tied to the traffic infraction are, or reasonably should have been completed.” The court also noted an officer who “completes all traffic-related tasks expeditiously” doesn’t earn extra time to pursue an “unrelated criminal investigation.” The decision applies the 4th Amendment’s ban on “unreasonable searches and seizures” and covers all the police–local, state and federal.

Absent probable cause, the officer cannot legally detain you for any longer than it takes to address the purpose of the traffic stop. He might question you about why you were pulled you over, or inquire about your destination. You have the right to remain silent. If you wish to invoke it, let the officer know. If you don’t know why you’re being detained, you have the right to ask. Once the officer has issued you a citation or warning, ask him if you’re free to leave.

Regardless of how the question is phrased, if an officer asks if he can let a drug dog sniff around your car after you’ve been given a ticket, he’s asking your permission to continue detaining you. If you intentionally and voluntarily say yes, and the dog signals to the officer that there may be an illicit substance inside, he will have probable cause to search your vehicle.

If you refuse a search or you don’t want to consent to have your car sniffed by a drug dog, say so loudly and clearly, and then ask for permission to leave, If the Officer says no, and your traffic violation has already been fully addressed, then it’s likely you’re being unlawfully detained. If the police won’t let you leave, unfortunately, your rights are being violated, there is little you can do about it in the moment. Even when the cops are violating your rights, people should not aggressively challenge the cops’ authority in those circumstances. The police abuse their authority and your rights are going to have to be settled later.

It may be difficult in the moment, but there are several factors you should try to focus on, particularly the time. When did you get stopped? How long did it take them to write the ticket? When did the stop end? How long did you have to wait when they were bringing the dog? Additionally, you have the right to ask the officers for their badge numbers. Whether the search was legitimate or not, you’re probably going to jail now. It’s crucial at this juncture you remember that you don’t have to answer any interrogating questions.

Rodriguez v. United States,
575 U.S. ___ (2015)
https://supreme.justia.com/cases/federal/us/575/13-9972/opinion3.html

“LET ME SEE YOUR ID.”
In the United States there’s no law requiring you to carry a government ID. But in 24 states police may require you to identify yourself if they have reasonable suspicion that you’re involved in criminal activity.

Police DO NOT have to Inform You of Your Charges
It is a common misapprehension that police officers are required to tell you why you’re being arrested or what offense you’ve committed when you’re being arrested. However ALL arrests without a warrant must be supported by PROBABLE CAUSE, no matter which state you’re in. So every legal arrest must be based on probable cause that a suspect has committed a crime. Still, there is no general requirement that, at the time of arrest, an officer has to share this probable cause assessment with the arrestee. A person arrested must be given a probable cause hearing, ordinarily within 48 hours of their arrest.

DRIVING UNDER THE INFLUENCE (DUI or DWI)
DUI designates driving under the influence, while DWI refers to driving while intoxicated. … A DUI charge denotes a lesser degree of impairment than a DWI for a driver charged with drinking and driving. Level of impairment is determined by the driver’s blood alcohol concentration (BAC) at the time of arrest.

If you are suspected of driving under the influence of alcohol (DUI or DWI), law enforcement has three primary ways to test your blood alcohol content (BAC): a breath alcohol test (breathalyzer), a urine test, or a blood test. The consequences for refusal to submit to a blood alcohol test vary from state to state.

FIELD TESTING
There are three standardized field sobriety tests police administer as a perquisite to further testing. These tests include the horizontal gaze nystagmus test, one-leg-stand test, and the walk-and-turn test. As a general rule (and unlike chemical testing), there is no legal penalty for refusing to take these tests although the arresting officer can typically testify as to your refusal in court.

IMPLIED CONSENT
In most cases, if an officer suspects you’re driving under the influence, “implied consent laws” require you to take a chemical test (using your blood, breath, or urine) to determine your blood alcohol content (BAC). Implied consent laws say that by just driving on the road, you are agreeing to take a chemical test to assess your BAC. Implied consent laws vary by state, particularly about which test is required and when it should be given, but every state has them, so in every state you must take the test.

If you refuse to take the test, you will face heavy penalties, possibly worse than if you were found guilty as a result of the test. The penalties vary by state and usually include a combination of a fine, jail time, license suspension, and required use of an ignition interlock device. Additionally, when your case goes to court, the prosecution will typically use your refusal against you, stating because you knew you were intoxicated you refused to be tested. For all of these reasons, it usually does you no good to refuse to take a chemical test.

REMEMBER: You have the right to remain silent, ANYTHING and EVERYTHING you say or do will be exaggerated, misquoted, twisted and used against you. Click Here to read Pleading the Fifth and Understanding Your Miranda Rights

MIRANDA RIGHTS
The police DO NOT have to read you your Miranda Rights. Any time before or after you are arrested and they can and will be used against you.

PUBLIC SPACE
A public place is an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not, but not a place when used exclusively by one or more individuals for a private gathering or other personal. Privately and corporate owned stores, restaurants, bars and theaters are also considered public places in legal definitions because the public is invited into these establishment. Public property is property dedicated to public use and is a subset of state property. The term may be used either to describe the use to which the property is put, or to describe the character of its ownership (owned collectively by the population of a state). While “privately owned public space” as a term of art refers specifically to private property required to be usable by the public under zoning or similar regulatory arrangements, the phrase in its broadest sense can refer to places, like shopping malls and hotel lobbies which are privately owned yet open to the public.

YOUR RIGHT TO TAKE VIDEOS AND PHOTOGRAPHS
June 2014, the US Supreme Court held when in outdoor public spaces where you are legally present, you have the right to capture any image in plain view. This includes pictures and videos of federal buildings, transportation facilities (including airports). Third Circuit Federal Court Judge Thomas Ambro “Officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves.”

Law enforcement CANNOT search a cellphone WITHOUT a warrant. Police may demand and threaten, but they DO NOT have the power or authority requiring you to tell them your security code which is considered testimonial, and falls under self-incrimination.

How do you get around it if an officer asks you?
Simply say “I decline to answer your question on the grounds it might incriminate me. I’m not required under the law to provide my security access code.”

Remember YOU ALWAYS HAVE THE RIGHT TO REFUSE SEARCHES including phone searches.

VIDEOTAPING and PHOTOGRAPHY

1. ~ STAND BACK

2. ~ DON’T POINT YOUR CAMERA/PHONE LIKE A GUN

3. ~ HOLD YOUR CAMERA/PHONE SIDEWAYS (LANDSCAPE VIEW)

4. ~ HOLD YOUR CAMERA/PHONE STILL and KEEP IT ON THE SUBJECTS. DO NOT try to capture what other’s are doing.

5. ~ IF YOU’RE INSIDE TURN YOUR TV or MUSIC OFF

6. ~ DON’T SHARE YOUR VIDEO WITH POLICE

7. ~ USE A LIVE STREAMING APP IF POSSIBLE as officers will often lie in order seize your camera/phone without a warrant by stating witnesses are allowed to leave at any time but are not allowed to take their camera/phone as the camera/phone may contain evidence.

8. ~ PROTECT YOUR PASS-CODE which is essential for preserving video in case police illegally destroy or confiscate your camera/phone

STAND BACK
If you’re approaching the scene of an investigation or an accident, police will order you to move back. Depending on the circumstances, you might become involved in an intense negotiation to determine the “appropriate” distance you need to stand back to avoid “interfering”. If you feel you’re already standing at a reasonable distance, say something to the effect of; “Officer, I have a right to be here. I’m filming for documentation purposes and not interfering with your work.” It’s up to you to decide how far back you’re willing to stand in order to avoid arrest.

“STOP RECORDING ME. IT’S AGAINST THE LAW”
Respond “Officer, with all due respect, state law only requires permission from one party in a conversation. I don’t need your permission to record so long as I’m not interfering with your work.” Or “Officer, I’m familiar with the law, and the courts have ruled it doesn’t apply to recording on-duty police.”

“WHAT ARE YOU DOING?”
If a police officer says “What are you doing?” while remaining calm say “Officer, I’m not interfering. I’m asserting my First Amendment rights. You’re being documented and recorded offsite”. They might follow up by asking, “Who do you work for?”Tell them you’re an independent filmmaker or a citizen journalist with a website/blog/YouTube show. Whatever you say, don’t lie—but don’t let police trick you into thinking the First Amendment only applies to mainstream media journalists. It doesn’t.

The law in 38 states plainly allows citizens to record police, as long as you don’t physically interfere with their work. Twelve states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—require the consent of all parties for you to record a CONVERSATION. All but 2 —Massachusetts and Illinois—have an “expectation of privacy provision” to their all-party laws in which courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police.

PLEASE NOTE: A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function, or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act.

PLEASE NOTE: Wording and interpretation by state, county or city may vary and a substantial allegation furnishing identity at the time of a stop would give police a link in the chain of evidence needed to convict the individual of a separate offense.

VIDEOTAPING ON FEDERAL PROPERTY
If protective service officers harass you while filming on federal property, you may remind them of a recently issued directive informing them that there’s NO PROHIBITION AGAINST PUBLIC PHOTOGRAPHY AT FEDERAL BUILDINGS.
HOMELAND SECURITY BULLETIN ON PHOTOGRAPHERS AND FEDERAL BUILDINGS
http://www.photoattorney.com/wp-content/uploads/2011/02/Photographing-the-Exterior-of-Federal-Buildings.pdf

HOMES
The Fourth Amendment of the US Constitution specifically mentions “houses” as a place where persons have a right “to be secure against unreasonable searches and seizures.” By placing ANY part of his body inside the house without consent the officer has already illegally entered the home in a manner considered unlawful.

Private residences enjoy the highest levels of Fourth Amendment protection against governmental intrusion. “The Fourth Amendment protects an individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.” (Payton v. New York)

Unlawful entry by police is considered a violation of tort laws in accordance to trespassing regulations. Trespassing regulations can occur to a person, to a chattel or personal property, and to land. Unlawful entry is considered to fall within the trespass to land category. Unlawful entry can therefore be defined as an intentional action to violate the rights of person over his/her real property. For an investigation to turn into a search, a court must conclude the investigation impinged or intruded upon a person’s “legitimate expectation of privacy.” Law enforcement agencies must apply for a search warrant before conducting a search of the person or premise in issue. If any search is conducted in the absence of a search warrant, it is presumed to be unreasonable and will be considered an illegal search.

There are only four legal ways police can enter a dwelling:

CONSENT: Consent can only be obtained from the owner of the property to be searched, someone with valid authority of the property, or someone with valid control over the property. Consent can be given verbally or written. The burden of proving consent is on the peace officer, and consent can be withdrawn at any.

WARRANT/COURT ORDER: An officer can enter a suspect’s home to arrest the suspect if the officer has a warrant for the arrest of the suspect and the officer reasonably believes the suspect to be in the dwelling. Case Reference: Payton v. New York, 445 U.S. 573 (1980)

EXIGENT CIRCUMSTANCES: An officer may enter a dwelling without a warrant when exigent circumstances exist. Examples include situations where an officer has to enter in order to prevent death or injury to those inside of the dwelling, to prevent the destruction of evidence, or to prevent the immediate escape of a suspect.

HOT PURSUIT: The officer must be pursuing the suspect for an arrestable offense. The suspect must know that he or she is being pursued, and the suspect must be in actual flight.

PLAIN VIEW DOCTRINE – U.S. Supreme Court

Horton v. California, 496 U.S. 128 (1990)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

REQUIREMENTS FOR SEIZURE OF EVIDENCE IN PLAIN VIEW:
1. Law enforcement authority to seize.
2. Law enforcement official must be in a place he/she has a right to be in.
3. Discovery of the evidence must be inadvertent.
4. It must be immediately apparent that what the official has discovered is evidence.

Click here to print a Foldable Wallet Card
“WHAT TO DO IF YOU’RE STOPPED BY POLICE” http://www.nyclu.org/files/publications/Palmcd_2014_police_nyclu.pdf

Fold Card

researcher-blk-wht

Kristeen Irigoyen-Hernandez

Human Rights Advocate, Researcher/Chronological Archivist and member in good standing with the Constitution First Amendment Press Association
(CFAPA.org)

while remaining calm.

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