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