Module 4 · RIGHTS AND WISDOM · Lesson 1 of 2
What the law actually says
Most of what you have been told about your rights is wrong, and the wrong parts are the dangerous ones.
Lesson 7 of 12
Start here
You are on a sidewalk outside a store, waiting for your ride. An officer walks up and asks what you are doing there.
Question one, and almost nobody gets it right. Are you being detained, or are you free to walk away?
Answer that before you read on. Then find out whether you were right.
Three things that are not the same
Everything in this lesson runs on knowing which of these you are in, and most people cannot tell them apart in the moment.
A conversation. An officer walks up and talks to you. You are free to leave. He does not need any reason at all to start it and you do not have to answer anything. A very large share of street encounters are legally this, and people stand there for twenty minutes answering questions because they did not know.
A detention. He has specific reasons to think you are involved in something. You are not free to leave. It is supposed to be brief. He can pat down your outer clothing for weapons if he has reason to think you are armed.
An arrest. He has enough to take you in.
The sentence that tells you which one you are in: Am I being detained, or am I free to go?
Say it once. Level. Then listen. If he says you are free to go, you can walk. If he says you are being detained, you now know exactly where you stand, and everything from here is Lesson 4.2.
In a car
A stop is a detention from the second the lights come on. You are not free to leave and asking will not change it.
He can order you out of the car for no additional reason. That is settled law, Pennsylvania v. Mimms, 1977. And he can order the passengers out too, Maryland v. Wilson, 1997. Most people believe passengers have more protection. They do not.
He can stop you for any real traffic violation even if that is not the actual reason. A light, tags, a lane change. That is Whren v. United States, 1996, and it is the legal engine behind most of what this course is about.
He cannot hold you longer than the stop needs. Once he has handled the reason he stopped you, it should end. He cannot keep you sitting there waiting for a dog unless something new gave him a reason. Rodriguez v. United States, 2015.
> [STATE BOX · Documents] > What you must hand over while driving in your state, and what happens if you do not. > Florida shown as example. Licence, registration and proof of insurance, on request. Those are required. That is a separate question from whether you have to answer anything else, and the answer to that is no.
Your name, your silence, your phone
Your name. Some states have a law that says if you are lawfully detained you have to identify yourself. Some do not. The Supreme Court said those laws are allowed, Hiibel, 2004, but whether your state has one is the whole question.
> [STATE BOX · Identifying yourself] > Whether you must give your name when detained, what exactly you must say, and what the charge is if you refuse. > Florida shown as example. Florida has a stop and identify law, § 901.151. If an officer has reasonable suspicion you are involved in criminal activity, he may detain you and require your name, address and an explanation. Refusing can be charged as resisting an officer without violence, § 843.02, a first degree misdemeanor carrying up to a year.
Your silence. Beyond identifying yourself where required, you do not have to answer anything. Where you are going. Where you have been. Whether you have been drinking. What is in the car. None of it.
And Miranda is not what you think. Those warnings apply when you are in custody and being interrogated. A roadside stop is generally neither. Nobody is required to read you anything before asking you questions at your window, and the fact that they did not does not make anything disappear.
Your phone. You have a First Amendment right to record officers doing their job in public. That has been recognized in federal courts, including the one covering Florida, Smith v. City of Cumming, 2000.
> [STATE BOX · Recording] > Your state's consent rule, how it interacts with the right to record police, and what an officer may and may not do to your phone. > Florida shown as example. Florida requires all parties to consent to recording a private conversation, § 934.03. An officer doing his job in public is generally not having a private conversation, so recording him is protected. He needs a warrant to search your phone.
Searches, and the word consent
This is the one that costs the most people the most.
He needs a reason to search. A warrant, or probable cause, or one of a short list of exceptions.
Or he can just ask you. And if you say yes, he does not need any of the rest of it. That is Schneckloth v. Bustamonte, 1973, and he is not required to tell you that you can say no.
Why he asks. Frequently because without your yes he does not have enough. The request itself is information.
A frisk is not a search. A frisk is a pat of your outer clothing for weapons and he needs reason to think you are armed. Terry v. Ohio, 1968. It is not a licence to go through your pockets looking for something else.
The sentence. I do not consent to a search. Said once, calmly. It does not stop a search he already has grounds for. What it does is preserve everything for a lawyer afterward, and that is not small.
> [STATE BOX · Other places] > School searches and school officers. Officers at your door. Being questioned as a minor and whether a parent has to be there. These differ enormously by state and this box carries your state's rules.
Am I being detained, or am I free to go.
The workEight questions
Two of these nobody reads. They are marked.
Go back to the sidewalk. Which of the three were you in, and how do you know?
Write the four sentences from this lesson from memory. The detained one, the consent one, the lawyer one, and your own six words before you reach.
An officer asks to look in your bag. You have nothing in it. What do you say?
- AGo ahead, I have nothing to hide
- BI do not consent to a search
- CDepends how he asked
- DI would freeze and probably say yes
Which of those four sentences would be hardest for you to actually say out loud? Why.
Read your state box on identifying yourself. Write what it says in your own words, as if you were explaining it to somebody younger.
Your friend is driving, gets stopped, and the officer asks you where you are coming from. You are the passenger.
- AAnswer. It is a simple question
- BSay nothing and let the driver handle it
- CAsk if I am being detained
- DI did not know I had a choice
Have you ever said yes to a search you did not have to say yes to? What happened.
Officers come to your door and ask to come in. No warrant. Write what you say through the door.
DeeperThree reflections
Nobody reads these.
- 1
Write about a time you did not know your rights and it cost you. Anything. School, a store, a job, anywhere.
- 2
Somebody told you something about your rights that you now know was wrong. Write who and what.
- 3
Knowing all of this, write what changes about how you would handle the last encounter you had.
Before you go
You now know more about this than most adults do, and that is not an exaggeration. Most people cannot tell a conversation from a detention and they have been voting for thirty years.
Knowing it is half. The other half is the harder half, because there is a difference between what you are allowed to do and what is smart to do at eleven at night on the side of a road, and anybody who tells you those are the same thing has never had to decide.
That is the next lesson and it is the most important one in the book.
Read your four state boxes with whoever is raising you. Not alone. Ask them which parts they already knew, and write down one thing that surprised either of you.