Know Your Rights 101

Terry stops

Terry v. Ohio 392 US 1 (1968)

Police can briefly detain if reasonable suspicion that suspect is involved in criminal activity

Pat downs

A limited search of outer garments (pat down) is permissible if police have a reasonable and articulable suspicion that suspect is armed and dangerous.

Standard of proof: totality of the circumstances

Suspect information requests

Under Terry and also under Hibel v Sixth Judicial Dist. of Nevada 544 US 174 (2004), requiring a suspect’s name, address, explanation of conduct is allowable,  if the officer has a reasonable suspicion that the suspect has committed or is about to commit a felony or misdemeanor.

If the suspect is then released, with no charges filed, any info collected cannot be electronically databased.

Invoking the right to silence

You still have the right to remain silent, but now, you must SAY you are invoking your right to silence. In 2013, in “Salina vs Texas” the Court held that: “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question.” In other words, you must now specifically invoke your 5th amendment right to “remain silent” or your silence can and will be used against you in court.

Photos and video

Taking photos and video in public spaces is allowable, if you are lawfully present.  You have the right to photograph anything in plain view.

If you are on private property, you must obey the property owner’s wishes (castle doctrine) about photography, or be subject to trespass.

Police may not confiscate video or photos unless they can show exigent circumstances (possible destruction of criminal evidence while they try and obtain a warrant: for example, such as taking a cellphone so video can’t be deleted).

Destruction of video or photos is never allowable and may constitute evidence tampering and interfering with a police investigation.

If while taking photos and/or video, you interfere w/police operations, police may lawfully ask you to cease activities.

The right to contest an unlawful search, commonly called “standing”

If you are in a vehicle or in a home of someone else, and a weapon or drugs are recovered, all persons there may be arrested for the illegal evidence.  If you believe the search was improper (no probable cause and no exception) you must have “standing” to complain about the search and invoke “fruit of the poisonous tree” to get the evidence declared inadmissible.  Some attorneys will say only the owner of the car/house has such standing.  Your attorney may be able to get you standing based on an improper “seizure” rather than an improper search.  If you are handcuffed or are under the impression you may not leave and you are being detained, then you may have standing based on the illegal seizure.


One thought on “Know Your Rights 101

  1. From a layman’s perspective: These rights seem a little thin. Is there a larger discussion going on that critiques the situation -?


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