Interactions with Police (1 of 2)

As with all articles we publish, we only write about the issues related to personal use and possession of controlled substances.  We do not write about the manufacture or distribution of controlled substances.  Nothing in this article, or anything we publish is legal advice, and instead reflects our personal understanding and beliefs about the issues addressed.  Please consult a qualified lawyer for legal advice.  We advise following all applicable laws and customs in any applicable jurisdiction.

We believe that it is critical to have a clear knowledge of one's rights and to have a thoughtful strategy of how to interact with law enforcement.  Understanding both the law and psychology of interacting with law enforcement can increase the chances of having short and pleasant interactions.  

Our view of law enforcement is pragmatic.  We are a fan of law enforcement as a general matter; we wouldn't want to live in a state without an organized police force.  We have professionally interacted with the courts and federal and state law enforcement for many years, and have generally been favorably impressed with those encounters.  We also have seen the techniques and tactics used by law enforcement, which include tactics we find distasteful, especially those designed to intimidate people and to encourage people to waive their constitutional rights and protections.

The police have carefully developed strategies to maximize their power in any encounter with citizens, to encourage citizens to waive rights, and to maintain a psychological upper hand.  We have developed strategies to ensure our rights are respect and to level the psychological playing field.

A final note, we will cooperate with law enforcement investigating a crime by a third-party.  For example, we would provide information if we witnessed a crime.  In these encounters, if at any time the officer asks us any questions about our own activities or other questions that do not seem consistent with sole interest in third parties, we will kick into self-preservation mode.  Moreover, anyone who happens to have any controlled substance or be intoxicated at the time of interaction with law enforcement, will likely choose to avoid the interaction entirely, perhaps providing the officer the opportunity to call later with questions. 

I. Techniques for Identifying Undercover Law Enforcement

Undercover police at raves do a good job at concealing their identity.  Think you can identify an undercover cop?  Try searching Reddit or other forums for photos of undercover police; they may look under 21, may be wearing revealing clothing, have extensive music knowledge, etc.  They have probably gone to more raves and concerts than you.  

And as a side note, one member of our group has become skilled at appearing to be an undercover officer, and has walked around security lines with a metal detector (past uniformed police) with a knowing nod, has routinely received free Cokes at the bar at one club after the bartender asked him "are your working?", and has been asked by numerous party goers, "May I ask you what you do for a living".... presumably because they thought an undercover cop would say "I am a police officer.".   So false positives and false negatives are happening all the time. 

Undercover police may legally lie to you about who they are, what they do, how old they are, etc. They may have fake identification, including corporate badges for companies for which they don't work.  They have extensive back stories.  They go to enough raves that they socially know non-law enforcement people who may innocently "vouch" for them.  They may retain their cover for long periods of time by only observing illegal behavior and tagging people for other police to detain and arrest.  We spent a significant amount of time on the stage at Ruby Skye in San Francisco, and observed undercover arrests occurring repeatedly at virtually every show.  If you have the chance to find a good view of a rave crowd, it can be eye opening watching the arrests occur. 

The good news is that if you do not attempt to buy, sell drugs or give drugs away to a stranger, and do not overtly ingest drugs, you are likely not going to be a target for undercover law enforcement at a festival or concert. But always assume the person next to you is law enforcement unless they are a close personal friend.

II. Techniques for Interacting with Law Enforcement

For law enforcement, every encounter with a civilian involves a cost-benefit analysis.  The officer must make a decision whether to approach the person at all, and then when interacting with the person, must make a series of choices designed to protect their safety, and also advance their personal and professional interests.  

I.  The Safety of Police

The threshold issue for any law enforcement agent is their own safety and the safety of others in the vicinity.  In this regard, our interests and law enforcement interests are entirely aligned.  We always want the officer to understand the encounter poses no risk to risk to their or others' personal safety.  Later we will discuss how we will attempt to make the officer feel more guarded in the interaction to our benefit, but at all times, we want the officer to feel physically safe. 

When an officer first approaches we assume body language that is non-threatening.  If we are standing, we will slightly spread our legs in a casual standing position, attempt to relax our bodies as much as possible, have a friendly facial expression, and stand with our hands open and palms facing slightly more forward than natural, giving the officer a clear view that our hands are empty.  We do not cross our arms or legs.  Hands are never behind our backs or in pockets.   Practice this in a mirror until it looks and feels natural.

If in a car, if pulled over we will pull over as quickly as is safe to do so.  You may legally continue to drive until there is a safe stopping point, but it is advisable to slow down and signal your intent to pull over.  We will turn off the car, place it in park, and engage an emergency break, and roll down the windows approximately one-half way.  We will turn on the car's interior lights if it is in low light conditions.  We will all sit relaxed, with our hands visible.  The driver's hands will be on the top of the steering wheel.  All hands will be open, with fingers slightly spread.  If possible, the driver will remove his driver's license before the officer approaches the car.  If this is not feasible, he will not reach for his pockets until asked to do so by the police, as we want to avoid fishing around while to officer is in a position to be concerned about what we are doing (and to avoid giving any cause to search our car).  

Our initial words will be polite and never hostile.  A simple smile and hello or the like.  Throughout the encounter we will remain composed, polite and respectful. 

II.  The Initial Encounter

Although we want the officer to not fear in any way for personal safety, that is the end of our alignment of interest when there is any potential for us to be a target of police action.  The officer's goal in any encounter is to learn as much information about us as possible.  Our goal is to leave the encounter as soon as possible.

Psychologically, the officer has the upper hand upon first encounter.  Many people are intimidated by law enforcement, and society often tells us to cooperate with law enforcement, which results in many people waiving rights that are fundamental to our social contract.  Fortunately, legally, in the United States, we have substantial legal power in any interaction with law enforcement.

If you have not done so, this is a good time to read The Law of Stops, Frisks and Searches, to better understand the legal framework involved in interacting with police.  The analysis below assumes you have a solid understanding of your legal rights in these areas.

1.  Can You Leave?

If approached outside your car and home, after a polite greeting our next statement will "Officer, I would like to leave, I assume that's ok" and absent a clear communication by the law enforcement officer that we are being detained, we will leave.  This feels socially awkward, but it is your right and a right for which there should be absolutely no penalty for exercising. 

Note:  Police do not want to communicate to you that you are not free to go.  Legally, if they do so, they must then support that the stop was a "justified stop" if you are eventually arrested.  If they cannot support a "justified stop", obtaining a conviction will be hard or impossible.  Therefore, you always want to force the officer to take a position on whether you are being subject to a justifiable stop. 

If we receive anything other than a clear communication that we are not free to dis-engaged we will repeat the question, ignoring the invariable question the officer has asked us.  After repeating this several times, we we say "Officer, since you have not told me I am required to interact with you, I am going back to what I was doing" and then slowly disengaged by walking away or slowly closing the door.  If the officer clearly communicates an order for us to stop, we will.  But then we will again request a clear communication that we are not free to go (and not to engage in any other conversation).  

If you are in your home and the police knock on the door, the police will likely ask to come in if you are suspected of criminal activity.  Not only would we decline this request, we would also attempt to terminate the conversation.  For example, "Officer, I am busy, but thank you for stopping by.  I assume I can go back to what I was doing?"  If we choose to interact with law enforcement, for example, to provide information regarding witnessing a crime, we will step outside the house, closing the door behind us, and talk with the police outside.  

Car stops are a little different, because in all probability, you are being subject to a justified stop and are not free to leave.  We consider this in more detail immediately below.

An example of properly challenging a non-justified stop. Polite, but firm.  This is the way it can be done.

2.  Avoiding Questions, Frisks and Searches

Once you have been informed in clear terms that you are not free to leave, the goal of the interaction is to continue to attempt to leave as soon as possible, while not waiving any rights during the encounter.    

Even if you have been lawfully stopped, you have no obligation to answer any questions whatsoever, other than (i) if you are in your car to provide your driver's license, and (ii) if you are not in your car, some states require you to provide identification (name, date of birth and address) to law enforcement.  

A note on the Miranda Warning.  The police are only required to give a Miranda warning after a formal arrest and prior to interrogation.  If you have been stopped on the street, and told that you are not free to go, and are being asked questions, you are not entitled to a Miranda warning, because you have not been arrested.  Even after your arrest, if you volunteer incriminating information (you "blurt" something out), that statement may be fully used against you because you are not subject to interrogation.  The Miranda doctrine is technical, and under no circumstance should you gain any comfort that you were not given a Miranda warning.  Always assume anything you say will be used against you and admissible in court.

a.  Never Consent to Waive Rights

The officer may ask to "frisk you", or for you to empty your pockets.  Do not consent to this, nor consent to any search.  The officer has very limited rights to touch you. 

If on foot, the officer may observe you for any indication that you pose a danger or that there is evidence of criminal activity.  In your home, the officer may look through windows or through the door you have opened for them.  In your car. the officer may look through the car windows.  Only if there is reason to suspect you pose a threat can the officer escalate the encounter to a light pat down (a frisk).  Only if there is evidence of criminal activity can the officer escalte to a detailed search.   

The officer may ask questions phrased as "Do you mind if...." or "I am going to......, is that OK?".  Never agree with any of these requests.  The response is always, "I do mind, and I do not consent to.....".  Or, "No, that is not OK, I do not consent to...."   Always be absolutely clear that you do not consent to what is being asked by expressly saying, "I do not consent".  The officer may simply say "I am going to pat you down."  This may still be interpreted as a request by a court, and if you do not object, a court may take the position that you consented to the search, especially if you assumed a pose to be searched.

A reminder, if the police ask you to place your hands in plain view, always do so.  If the police ask you to place your hands on a car or assume a search position, politely inform the officer that you are happy to keep your hands in plain view, but that you do not want to assume any search position unless he or she is legally requiring you to do so.  

b.  The Issue of Frisks and Searches

Never consent to either a protective pat down (aka a frisk) or a search.  Respond in a clear and express manner that you do not consent to any physical contact (preferably expressly noting "Officer, I do not consent to either a protective pat down or a search".   If the officer insists on touching you, ask the officer to specifically tell you whether the contact is a pat down or a search.  

The legal requirements for a pat down are significantly easier to meet than a search.  The officer must only have a "specific and articulable facts" that the person subject to the search may be armed and dangerous.  Once that threshold is met, the type of search is a light pat down of outer garments, of a nature to check for weapons and not for other contraband.  Note, however, that if contraband is found during the search, and the contraband is immediately apparent as contraband, it may be removed from the suspect, and used as evidence.  

It is common for an officer to ask "what is this" during a frisk.  The appropriate answer is "it is not a weapon or contraband"; you need give no other information to the officer.  The officer may say "I am going to remove this from your pocket."  Your response should be "Officer, I do not consent to you removing that from my pocket."  The legal requirements for a full search are significantly higher, and usually associated with an imminent arrest (or consent foolishly given).  Once probable cause for arrest occurs or consent is given, the officer may do a careful search of a suspect, removing outer clothing, and emptying all pockets.  

By insisting that the officer identify whether a frisk or search is being conducted, you have put the officer on notice that you are aware of your rights, but the burden on the officer to justify the search if it is later questioned, and given you the knowledge to challenge any frisk that goes beyond a brief pat down of your outer clothing

 

Interactions with Police (2 of 2)

This is part 2 of our series of articles on how we choose to interact with law enforcement.  This is not legal advices, and you should consult a qualified lawyer for legal advice.  We advise following all applicable laws and customs in any applicable jurisdiction.

III.  Gaining Psycological Leverage

We start an encounter by signalling to the officer we are not a physical threat.  We also immediately begin to use strategies to signal to the officer that there will be little upside in continuing to detain us.  

We strongly believe that conscious and unconscious bias plays a role in all human interactions.  Humans generalize from stereotypes and past experiences because this has been a successful evolutionary survival strategy.  Unfortunately, this has also given rise to prejudice, which in law enforcement can manifest itself as racial and class bias.  Moreover, we believe law enforcement officials, especially at the street level, are perceptive of power structures, and will treat people they perceive as having social, economic or political power in a favorable manner.  

When an encounter has elevated to a situation where we are not free to leave, we attempt to subtly signal to the officer that not only are we not physically threatening, but that we also possess knowledge, education and social status such that it is in the best interest of the officer to allow us to leave.

1.  Composure

Above all else, composure sends a strong signal to the officer.  Acting nervously strongly suggests the officer has the upper hand, and moreover suggests there may be something to hide.  Law enforcement clearly understands and cultivates a power differential where nervousness is entirely natural, so much so that the lack of nervousness stands out and can be very disarming to law enforcement.  Confidence, without cockiness or excessive jovialness will lead the officer to perceive that you have greater power in the interaction than the average person.  

Some believe that belligerent behavior is a signal of power.  It is not and does not serve people well in any interaction.  Calmly asserting rights is empowering.  Yelling, swearing, name calling and any uncivil behavior signals fear and lack of control, the opposite of what you want to project.  In contrast, calmly but firmly asserting rights, gives you leverage.

2.  Knowledge of the Law

We use legally recognized terms whenever appropriate.  Terms such as "justified stop" (also know as a "Terry Stop"), "protective pat down", "probable cause", signal an understanding of the law, and also signal social status.  

3.  Knowledge of the Police

Immediately upon encounter we will look at the officer's name and attempt to identify any rank. We will try to do this quickly and non-overtly.  Uniformed officers will often have a name plate and rank insignia on their uniform.  It's worth the five minute exercise of familiarizing yourself with basic ranks of your local police.

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If we can determine the officer's rank (almost always an "officer" or Sergeant) we will use the rank while addressing the officer, such as "Yes, Sergeant".  We prefer not to address law enforcement as "sir" or "mame" as we do not address other people with such formality in our lives, and prefer to use rank titles instead.

In the encounter, we do not initially use the officer's name.  The key to effective use of the name is to ensure that you maintain normal eye contact the officer and do not overtly look down at the officer's name tag again.  While maintaining normal eye contact, we do not lock eyes.  We want to appear to be very present with the officer, but neither hostle nor frightened.

We will then use the officer's last name strategically in the conversation at a key point.  "Officer Rogers, we are going to leave now, as we assume that you aren't legally detaining us."  Often people will use a police officer's name, as an unconscious intimidation technique, but invariably break eye contact to look at the officer's name plate immediately before using the name.  Police officers are not intimidated by this in the least because it happens all the time.  However, when someone simply uses their name without any type of overt looking at their name tages, it can be very disarming, especially if you have already established a sense of composure and professionalism with the police officer.  This momentary shift in power, used at a strategic point, can give you a momentary advantage, and that can be crucial.  

4.  Responding to Questions

How to respond to questions is simple.  Do not respond to questions.  Politely ignore the question and ask why are you being detained.  Once the officer has answered, continue to politely ignore questions.  If the officer does not have probable cause for arrest already, saying nothing will not create probable cause, while giving any answers to questions may do so.  Periodically re-new your question of whether you may now leave, and again ask for a clear response from the officer that you continue to be legally detained.

In a car, once you have been pulled over and have provided your identification (as you are legally required to do for any justified stop) avoid answering questions, and instead respond to most questions with "Officer, could you tell me why you have stopped me."  The officer will typically ask "do you know why I have stopped you?"  Rather than provide any answer, we simply politely respond with our question.  In all likelihood the officer will have a justification for the stop.  

In a car stop, we have slightly different risk analysis than during other encounters.  If we are absolutely confident we have no other infractions the officer could discover we may engage in some conversation depending on what the officer has said.  For example, there may be some moving violation infractions that you can avoid a ticket with an honest explanation.  We were once pulled over for not having our lights on, in a new car.  Explaining the car was new, and the lights appeared to be on from the inside, we avoided the ticket. 

However, no matter what the facts are, we will never consent to a search of the car.  We believe is a disservice to ourselves and every other citizen.  If the officer makes any request to waive a right, such as a request to step out of the car "Would you mind stepping out of the car", we will decline.  If the officer says, please step out of the car, we will ask the clarification, "Officer, I would prefer to stay in the car.  Are you legally complying me to step out of the car?"  

IV. What not to do

This video could be a case study on how not to interact with the police.  Note, the suspects could have simply walked away from this encounter.  The police conduct textbook questioning.  The suspect invites a frisk by putting his hands in his pockets after being told not to do so.  He fails to object to the search, although we believe the frisk was likely justified.  Note, however, the frisk becomes a search when the officer feels a bag in the suspect's pockets.  This may have exceeded the authority of a pat down frisk, but this is not clear, because contraband found during a frisk is admissible.  In any event, this is a felony arrest, and it is likely this will result in a guilty pleas for a lesser crime.

V. Further Resources.

A short video from the ACLU:  What to do if you are stopped by the police

Stops and Searches

The Law of Stops, Frisks and Searches  

As with all articles we publish, we only write about the issues related to personal use and possession of controlled substances.  We do not write about the manufacture or distribution of controlled substances.  Nothing in this article, or anything we publish is legal advice, and instead reflect our personal understanding and beliefs about the issues addressed.  Please consult a qualified lawyer for legal advice.  We advise following all applicable laws and customs in any applicable jurisdiction.

Knowing exactly when you can simply walk away from law enforcement, knowing what to say and when to say it, and making informed judgments of how to exercise your rights will strongly color any interaction with law enforcement.

Here we are focused on the basics of the law of police stops, frisks, searches and questioning.  Once you clearly understand your rights, you will want to understand how to artfully exercise those right - a topic we focus on in our article "Interactions with Law Enforcement."

I.  Recording Interactions with the Police

A.  Your Rights to Record

Flex Your Rights Exec. Director Steve Silverman's segment from a Cato Institute panel discussion on police body cameras and recording misconduct. (C-SPAN Air Date: Oct 23, 2014.) Steve Silverman in his remarks gave his five rules for recording the police.

You have the right to record your interactions with law enforcement, subject to limited exceptions.  In any public space you may record anything in plain view.  On private property, the owner of the property may set the rules for recording.  The police may order citizens to not interfere with their legal police work, however, the mere act of recording something typically does not interfere with police work.  However, crossing police lines, or being close to an area where an arrest is occurring may interfere with police work.  So keep a safe distance from police activity and if the police ask you to leave an area, step a safe distance away and continue recording.

And makes sure that it's clear you are holding a camera, and not a weapon.  If questioned what you are doing identify that you are holding a phone.  If the officer seems to think you are holding a weapon immediately put the phone down.  It will continue to record, and you will remain alive.  

Please take a few minutes to watch the embedded video, which includes excellent advice as to how to record the police. 

B.  Making Useful Video

When recording, do not provide "color commentary".  If helpful, provide only basic information such as what happened before the video started, and minimal context.  Try to keep the video fairly zoomed out to capture the entire scene, rather than having close up footage. 

If you are not directly involved in the incident, we suggest that overt recording of the interaction is always best.  If you are subject to questioning, you may, from a practical perspective, escalate a conflict by overtly recording an interaction, so judgement should be used.  However, apps like Hands Up allow you to discretely record interactions, as the app turns your phone screen off during the recording.  

C.  Apps to Preserve the Video From Deletion by Law Enforcement

The ACLU has an app customized for about half the states, which is designed to record and transmit to the ACLU any encounter with law enforcement.  Hands Up is another app that records video discretely and sends the video to your Dropbox and YouTube accounts.  We like the fact that with Hands Up you retain control of the audio and video, and you have the choice as to whether to disclose the existence of it.  Not all video may be helpful to your cause.

D.  Searches of Your Phone; Deletion of Photos

Police generally have no right whatsoever to look at your phone.  The Supreme Court has ruled that police may not search your cell phone when they arrest you unless they get a warrant.  It is possible that courts may approve the temporary warrantless seizure of a camera or phone in certain extreme “exigent” circumstances such as where necessary to save a life, or where police have a reasonable, good-faith belief that doing so is necessary to prevent the destruction of evidence of a crime while they seek a warrant. 

The police may not delete video or photos under any circumstance; doing so violates the 4th Amendment.  You should never comply with a request that you do so.  Your best protection is to use an app to upload videos and photos real time to secure servers.  

E.  A Note on Recording Audio. 

With regards to videotaping, there is an important legal distinction between a visual photographic record (fully protected) and the audio portion of a videotape, which some states have tried to regulate under state wiretapping laws.  The ACLU provide guidance on this issue, and suggests that nearly always making audio recordings of the police is legal. 

Ii.  The Law of Stop, Frisks and Searches

The police have limited power to require you to interact when them, and even more limited power to lay their hands on your or to search you, your house or car.  The first rule of dealing with law enforcement is to make the interaction as limited as possible by understanding when you can walk away, what will give rise to the police having the power to lay hands on you and what can result in the police doing a detail search of your person.

A.  "Justified Stop"

If interaction with law enforcement can be avoided, avoid it. 

The police may legally stop you only if you are exhibiting the following factors (a "justified stop"):

  1. You appear not to fit the time or place.
  2. You match the description on a "wanted" flyer.
  3. You act strangely, or are emotional, angry, fearful, or intoxicated.
  4. You are loitering, or looking for something.
  5. You are running away or engaging in furtive movements.
  6. You are present in a crime scene area.
  7. You are present in a high-crime area (not this is sufficient by itself or with loitering).

If a police officer stops you, you probably have the right to walk away.  So the first thing to do is to politely inform the officer that you would like to leave and ask if you are legally free to do so.  Or better yet use the police technique in your word choice by assuming the outcome you want in your language: "Officer, I'd prefer to leave, I assume I am free to so, right?" or "Officer, I am going to leave now, ok?"

Unless the officer clearly communicates you are not free to leave, you may walk away.  It is very possible the officer will not directly answer the question, but instead ask you additional questions.  You should not answer any questions, and instead repeat you own question.  If the officer again does not clearly communicate that you are being detained, inform the officer that you are leaving and only stay if the officer at any time clearly communicates you are required to do so.  

From a practical point of view, you may be able to avoid the formality of the type of interaction described above.  For example, you may be walking by law enforcement at a concert and they may say "Hey you guys, come over here, we have a few questions."  You may simply continue walking and respond "Sorry, we do not want to miss the show."  If the interaction continues, you may then escalate by saying, "Officer, I don't want to be rude but I assume you are not legally detaining me, so I am going to go see the show."  Now you are into the type of more formal testing the waters as to whether you are being subject to a "justified stop", and the officer will most certainly understand your intention in your wording.  As often as not, this friendly, but firm banter will end the interaction.  

Remember, if the stop is not justified, anything that happens after the stop is not admisable against you.  Therefore you want a very clear record that you did not consent to stop.  In practice, the police will always suggest in court a pretext for stopping you (the suspects appeared nervous, intoxicated, etc.)  But you are often going to be able to simply avoid the encounter, and in the worst case you are building a step by step defense in the event that you are arrested.

To this end, it's helpful to consider the most common justifications for a stop:  you are acting strangely (typically acting nervously), have engaged in "furtive movements" (behaving stealthy) or are loitering.  It is important to know these factors, and if law enforcement has told you that you are not free to leave, ask them under what grounds do they consider this a justified stop, and point out that you do not meet any of the conditions for a justified stop, to the extent you can do so.  Recite as many as you can.  Note, if you are overly intoxicated, and the officer identifies this as a factor, you may be best served to simply respectfully wait until the encounter ends, being cautious not to become emotional or nervous.

A note about DUI checkpoints.  Perhaps surprisingly, the Supreme Court has ruled in favor of DUI sobriety checkpoints, applying a balancing test.  Being stopped by the police is a "seizure" under the 4th Amendment, however, the Court found that under a balancing test, delaying a driver for a very brief period involves a very small intrusion, while advancing a significant state interest in preventing DUI's.   Some states have determined searches to not comply with applicable law, and in those states you won't find a DUI checkpoint (here's a state by state analysis).   Note, this decision in absolutely no way allows the police to stop you without justification in other contexts.  

A note about DUI checkpoints.  Perhaps surprisingly, the Supreme Court has ruled in favor of DUI sobriety checkpoints, applying a balancing test.  Being stopped by the police is a "seizure" under the 4th Amendment, however, the Court found that under a balancing test, delaying a driver for a very brief period involves a very small intrusion, while advancing a significant state interest in preventing DUI's.   Some states have determined searches to not comply with applicable law, and in those states you won't find a DUI checkpoint (here's a state by state analysis).    If you are stopped at a DUI checkpoint, we likely have no obligation to interact with the police in any manner whatsoever other than to provide your driver's license and registration.  However, our goal in the interaction is to do nothing to give the officer probable cause to extend the interaction.  Our approach is to always have our registration close at hand so any traffic stop will go smoothly.  When stopped at a DUI checkpoint, we roll down our windows half way, have our driver's license and registration ready to produce if requested, and engage in what should be a very brief exchange of words.  We absolutely never drive intoxicated.  We absolutely never have anything in plain view that would give rise to a search of our vehicles.  As a result, the most pragmatic approach for us is to engage in the minimal interaction and be on our way.  However, as always, we never consent to any search or waive any right in the encounter.  We would never use the approach of placing our identification and registration in a bag and hold in through the window, as we suspect this increases the odds of creating probable cause that could lead to unwanted interactions.  Keep it short.  Keep it polite.  And never waive a right.  

B.  A protective "frisk" 

If you are subject to a "justified stop", the officer may  have a right to frisk you.  Legally, there is a difference between a "frisk" and a "search".  If you have been subject to a justified stop you may be subject to a "protective frisk" (also known as a "protective pat down", which is a light pat down of your outer clothing designed solely for the protection of the officers. 

A frisk is only permitted if an officer has a reasonable suspicion that you may be armed and dangerous. While a frisk may only be of a nature to search for weapons, once something that appears to be contraband or appears to be a weapon is discovered, the police may remove it.[1]  One of the best ways to understand the protective frisk (also known as a "Terry Frisk") is to read articles written for the benefit of law enforcement agents.  An excellent overview can be found here with a good summary here.

An officer will almost always request permission to pat you down, typically by saying something like "I'm going to pat you down for your safety and mine, ok?".  The answer should be, "No officer, I do not consent to a protective frisk.  And I assure you that I present to no risk to you."  If you do not have any weapons on you, you are well advised to say "No officer, I do not consent to a protective frisk.  And I assure you that I am neither armed nor dangerous, and therefore there is no need nor legal justification for a frisk."  This language signals that you understand what a protective frisk is, and the legal threshold for one to be authorized under law.  

Note, if the officer then communicates that he is going to frisk you, absolutely comply, but remind the officer that you are complying but not consenting to the frisk.

C.  Searches of your Person

Unlike a "protective frisk", a search of your person, car, or home may only occur following "probable cause" to conduct the search.. 

When applied to searches, probable cause exists "where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed."

Once probable cause exists, the officer may do a detailed search of your person, including removing outer clothing emptying pockets, opening your mouth, reviewing the contents of your wallet, etc.

If you are observed doing any action  with would allow the officer to arrest you, or there is any evidence of a crime in plain view of the officer, there likely is probable cause to search you.  Short of that, an officer likely does not have probable cause.  

Again, if an officer asks to search you, politely decline.

D.  Searches of Your Home or Car

The police may do a search of your home or car without your consent only if any of the following are true:

1. They obtain a warrant to do so from a judge.  A search warrant requires: (1) the warrant be filed in good faith by a law enforcement officer; (2) the warrant be based on reliable information showing probable cause to search; and (3) the warrant must be issued by a neutral and detached magistrate; and (4) the warrant must state specifically the place to be searched and the items to be seized.  

2. Consent. Even if you do not to consent to a search, the police may lawfully search the premise if any other person who is in control of the property consents to the search.  For example, parents or roommates may consent to a search, and property found during that search will be admissible.  Note, however, if you are physically present and object to the search, even if your roommate has consented, the police may not search the premise without a warrant or without meeting another criteria for a warrantless search.   

3. Plain View. If a police officer sees contraband or evidence of a crime that is clearly visible, that object may be lawfully seized and used as evidence and may be the basis for a full search of your car or home.   

4. Search Incident to Arrest. If you are being arrested in your house or car, police officers may search for weapons or other accomplices to protect their safety (known as a "protective sweep"), or they may otherwise search to prevent the destruction of evidence.  

5. Exigent Circumstances. This exception refers to emergency situations where the process of getting a valid search warrant could compromise public safety or could lead to a loss of evidence. This encompasses instances of "hot pursuit" in which a suspect is about to escape.

F. Providing Identification

Do you need to provide your name or other identifying information to the police?  If you are driving, every state requires you to produce your driver's license upon request.  If you are not driving, some states require you to provide your name, address and birthdate.  You should do a quick Google search to understand your rights in this regard.  For example, in California you are not required to provide ID if you are not driving [2

If you are uncertain of your rights, you may pull out your identification, place it face down in the palm of your hands, and tell the officer, "I do not consent providing my identification.  However, if and only if I am legally required to provide this information, my identification is here. "

An important note:  from a practical consideration, we will always provide identification to the police upon request if there has been a justified stop.  Our cost benefit analysis suggests that police will likely view your refusal to provide identification as indicating you are likely subject to an arrest warrant.  As a result we believe they are far more likely to find a reason or pretext to search or arrest you.  Therefore, if (and only if) we are subject to a "justified stop" we will politely provide our identification. 

For those who want to dig deeper, this guidance gives more detailed legal analysis and citations for the topics discussed here. 

III. Practical Considerations

The best way to stay out of trouble with the law is to always obey it.  The second best way is to "do no harm".  Law enforcement is most likely to target those that are causing some type of social harm.  

When attending public events, common sense will typically keep a person out of legal trouble.

1.  Never drive intoxicated and avoid appearances of public intoxication.

2. Never violate any law while in the possession of a controlled substance.  Drive the speed limit, do not have a broken tail light.

3. Never agree to be frisked or searched.  Communicate clearly your refusal to be searched.  Note, the police may have the legal right to search you and you should comply with any frisk or search the police insist upon.  Forcibly resisting the police is virtually never legally permitted, and always a bad idea.

4. Be polite to law enforcement, but never waive any rights.  Be very clear that you do not consent to a search.  If asked any questions such as "would you mind if....", always respond clearly, "Yes, I do not want to do so."  If you are told to do something by law enforcement, comply after confirming the law enforcement officer is legally requiring your action.  "Please step out of the car."  "Officer, I would prefer not to do so, but will comply with the request if you tell me I have no choice but to do so". 

5. When declining a search, you may be well served to explain "Officer, I have nothing to hide.  However, I believe strongly in the individual right to privacy and therefore do not consent to a search".  Legally this serves a purpose:  at all costs you do not want to give the officer probable cause to search you.  Acting nervously is recognized as an indicia of illegal activity and may give rise to, at a minimum, the right for the officer to do a protective pat down.  By explaining calmly your rational to avoid a search, you are building a transcript of a calm individual.  As a side note, having interacted with many members of law enforcement, you are unlikely to provoke a negative reaction if you politely insist on honoring your rights.  Moreover, by knowing your rights you are sending a powerful signal to law enforcement about your ability to protect your own interests.

6.  Understand that when entering a private venue you may legally be required to consent to a search as a condition to entry.  Private security is not subject to the same restrictions as public law enforcement.  And any illegal materials found during such search may be turned over to public law enforcement and by fully admisable as evidence against you.

7.  Ensure that you and all members of your group are safe.  If you need medical intervention, you are likely to also encounter law enforcement.  Watch each other's backs.  You are less likely to be confronted by security or law enforcement if your group is cohesive and acting with courtesy.  

A final reminder. Never believe law enforcement is not entitled to lie to you.  It is entirely legal for a member of the law enforcement community to lie about their profession, their relationships, their drug use, etc.  This is done routinely, including law enforcement using bona fide credentials of legitimate businesses, such as business cards or employee badges.  

Don't think you can recognize undercover police.  You can't.  The attractive woman with pasties and a tutu may be a cop.  The guy walking on stilts may be a cop.  This is the way it works.