Dec 092012
 
Seven police officers dressed in black SWAT gear with helmets and rifles at the front door of a house with a white picket fence

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In support of the police: I have friends and friend’s family members who are police and who are very good people. I want to give them ultimate respect and appreciation for putting their lives on the line and performing such a necessary civic duty. I recognize that there is a lot of pressure put on the police to get quantifiable results, and that they are always in the spotlight.

However, just as there are unethical and possibly even malicious doctors, teachers, coaches, accountants, and so on, I think that because the police hold such high authority in our society and are so accessible and close to a community, repercussions of manipulation and misdoings by people in authoritative roles are magnified.

The Constitution of the United States greatly interests me, and I have taken up study of our Amendments/Bill of Rights. I have been aquaintanced with many people who have unnecessarily gotten themselves into hot water (embarrassed, fined, arrested, kicked out of their living situation, etc.) simply by not knowing or exercising their rights.

The Fourth Amendment states:

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.

thereby giving citizens protection from unreasonable search and seizure. You have the right to refuse to consent to a search of yourself, your car, or your home.

Again, the Fourth Amendment protects you from an authority of the law searching your body, your possessions (rented, owned, borrowed, or otherwise) including your car or home, and confiscating any property related in any way to you.

This article focuses specifically on the unreasonable search of your premise, i.e. police attempting to search your house without a properly filled out, signed, and dated search warrant. Just because they have a piece of paper that has the word “warrant” at the top, does not make it valid, but more on that later.

While many of us don’t think the police will ever come to our home, a police officer knocking on a door is not an uncommon occurrence. Whether its due to questions about a crime that happened down the street, checking in on a loud party, or the dreaded notification that someone was in an accident, many people find themselves answering the door to a police officer at some point in their lives.

Unfortunately, innocent people get arrested all the time. Any time the police show up at your home, you are at risk for being arrested. When a cop enters your home, whether or not he or she is searching for contraband, if they see something questionable, they only need to prove they had a reasonable suspicion in order to do a search. You don’t know if your college-age son left his copy of High Times on the coffee table, or your wife dropped an empty tiny baggie that contained extra buttons, or you left a fish gutting knife out next to the sink that is reflecting something red or brown. Any of these items could lead to further questioning, which will undoubtedly make you nervous, and might make you say something jokingly, which could be interpreted as incriminating. It’s important to know and protect your rights and your family’s rights if the police come to your home. Whether you have kids, roommates, or guests, you just can’t know every single item that may have ended in your home. Deal with any issues internally; bringing the police into it is only going to cause heartache, lots of money, and could even incriminate you.

If police, detectives, FBI, etc. come to your door…

What you do depends on your comfort level of risk. whether or not they are positive you are home, you can either ignore them, or choose to attend to them.

If you choose to hang tight and pretend you aren’t home, have your cell phone video camera ready and hidden because if the door is unlocked and they think no one is looking, they will try to open it. If you have proof that they entered without a warrant, lucky you! Don’t let them know they are being recorded because they will destroy your device and not report it. They can also claim obstruction of justice if they catch you recording them. It might be best to make your presence known but not open the door.

Before you attend to them, grab a phone (even if it’s dead, even if it’s fake, even if it’s really a TV remote control), paper, and a pen as props. The game here is to be professional, prepared, and educated.

In many states, you do not have to identify yourself, provide ID, or say anything. Do your research on your state’s current law. However, in all states, giving a false name is a crime, so you are fully entitled to say nothing.

You should not need your ID or any paperwork, but it would be prudent to make copies of anything you think you might need and place it near each door leading to the outside. Under a chair by the front main door, tacked to a wall, hidden in a nearby Longaberger basket…whatever works with your decor. If a warrant is served, this may be especially useful and time saving for all parties involved.

Never open the door when police knock…never!

There is no law that says you have to open the door for a police officer.

Let me restate that: Never open the door when police knock…never! If you step outside the doorway, you can be put under arrest right then and there. If you keep the door open and they see something suspect inside, they may push you aside and lie that you let them in, since opening the door may be construed as an invitation to enter.

Do not open the door. Not even if you are totally innocent and have absolutely nothing to hide. Not if you get nervous. Not if you think you know why they are there. Not if it’s your best friend’s cousin’s neighbor if he’s on duty and shows up unexpectedly. Not even if they claim to have a warrant, or make threats, and definitely, definitely not if they actually do have a legitimate warrant. Let them break the door down if they want in so bad. The price of a new door will pale in comparison to the legal fees you’ll face if you did give the police a reason to obtain a warrant, so don’t worry about it.

Here is how it goes:
The police stay outside the door, and you stay inside the house with the door shut between you. It is completely legal to not open the door. Do not open the door, or cross the doorway, or allow them inside, under any circumstances.

Talk to them through the door only. When you get to the door, do not lock it while they are there or they can arrest you for obstructing and delaying. If it is unlocked, the fact that it is shut is enough to keep them out. If it is locked before they get there, that is OK too.

Do not talk to them through a window. If you have a glass or screen storm door, keep the main solid door habitually shut. If you have happen to not have your hands in plain sight they can claim to think you have a gun can legally kick the door down. If they move to the window to talk, you stay by the door and stay there until they are by the door.

You have the right to remain silent. If you wish to exercise that right, say so out loud. Speak to the police as little as possible, give no personal information about who you are, what you are doing, if you are a resident or a guest, or what is inside. Just inform them that you know your Rights, and tell them which Right they might violate if it is appropriate to.

Good ways to be polite is to say:
“Hi there, I’m going to remain Silent.”
“Sorry, I’m not answering questions today.”
“Thanks, but I’m exercising my 5th Amendment Right.”
“I know my rights and I’m choosing not to speak with you.”
“No, I’m cool here thanks, I have nothing to say.”
“Sorry, I can’t/won’t talk to you.”

If you must speak, say ,“Hello”. If they ask you to open the door or to come in, always say no.
Clearly,  loudly, politely, firmly, say the exact word, “No”. Not “um, no, thanks”, not, “uhh I don’t think I can,” not anything that can be construed or warped or misinterpreted. Just “No.” It can and should be polite, but it must be strong.

Many people feel that silence is awkward and rude. Keeping your mouth shut may feel unnatural and disrespectful, but remember, the police know the law and you’re not going to offend anyone by keeping silent in a potentially legal situation.  Make sure you are not answering any unnecessary questions. The police are invested in keeping us all safe, but they also want to arrest people for crimes. Many police officers will ask people completely irrelevant questions for an extended period of time in the hopes of uncovering a crime. As long as you’re answering, they’re allowed to ask. Remember, refuse to answer any questions other than about your identity, If they are really pestering you, ask if you are under arrest, and if not, ask the officer to leave. Remain courteous to the officers at all times, even if they are not courteous to you.

When police ask you something, do not answer. On-duty police are not your friends; their jobs come first. They use drug arrests (the easy pickings) to gain fame and fortune (for some reason local press usually lauds these cops). Police are allowed to lie to you  to try and get you to talk. Even if you are thinking of saying something that you think is not incriminating, do not say it. Do not talk to them.

Again: There is no law that says you have to open the door for a police officer. Opening the door not only gives the police officer the opportunity to look around for clues to your lifestyle, friends, reading material, etc; but also tends to prolong the conversation. Don’t open your door with the chain-lock on either, the police can shove their way in. Police are known to kick in doors. Simply shout “I have nothing to say!”

Do not initiate conversation, and do not make any noise. Banging and rustling around gives police reason to suspect you are destroying some type of evidence, and they can search your house without a warrant for that.

A police officer cannot search your home without a search warrant or a belief that someone is in immediate danger. You cannot in any way benefit from a search of your home. It’s a violation of your privacy, and on principle alone, you should exercise this right!

If they say they have a warrant, ask them to slip it under the door and you read it thoroughly and completely and deem it to be real. They will come in on their own if it is real.

If they have no warrant, but claim they have probable cause to come in, absolutely do not let them in. If they truly do have probable cause, they will kick the door in. This will 99% probably never happen due to laws. If you are calm and there is no screaming or gunshots or blood spatters, they do not have probable cause.

They are legally allowed to bluff you and say there was an anonymous 911 call of someone screaming (or similar). As long as you talk through the door timely and present yourself calmly, they have no reason to believe any crime is committed and may not come in.

Just say, “Everything is great here, I have nothing to say, thank you”. If they persist, you ask the questions, but don’t give any information. Ask for the officers’ names and badge numbers.  Write all this information down, or pretend to. Not all departments have to give them by law, but ask anyways. Ask what department they are from, and confirm that they are in their jurisdiction, and write this down, too.

Women especially are encouraged to actually call the present officers’ department and confirm that they are supposed to be there, using their badge numbers. It could be a pervert or robber dressed up!

To end the conversation ask “Am I free to go?” Do not say anything more until you get a direct “Yes” or “No” from the police. Keep asking. Don’t answer any of their questions. Do not let them intimidate you. Keep asking until they say Yes and leave.

If they continue to say “no,” since you are still in your house, tell them to leave now, that you do not consent to their presence or search, and get on the phone you have with you and tell them that you are calling your lawyer. (The reason you say that you are calling a lawyer is two-fold: first, it puts the cops on notice that they should go harass someone else; and second, while they will tell you that you cannot use the phone, they know that one can always have counsel present while in custody, so you can surely have advice of counsel when you are not in custody). Of course, you do not have to call any real lawyer, just call your own voicemail and make a recording of the events in a loud voice saying stuff like: “The police are at my house/apartment without a warrant and no probable cause, they are not invited, I have asked them to leave, I do not consent to any search, etc.” If after all that, the police still do not leave, just sit there and be quiet.

Inform the police you are going to file a written complaint & call your local American Civil Liberties Union (ACLU) if you feel your rights have been violated.

Believe it or not, you may have to brief them on the rulings and codes above to shut them up because they do not know what they are talking about in many cases

Personally, I’ve had extremely limited encounters with police. I’m never been arrested, and never had much trouble outside of traffic tickets. However, I’ve had four separate incidents proving that the Santa Barbara Police and the Forest Service do not know laws. Officers I dealt with on four separate occasions did not know:

  • The extremely important difference between assault and battery;
  • What dirtbikes are forest legal, street legal, or neither. They don’t know their colors: green sticker vs. red sticker vs. no sticker, and can’t identify a spark arrestor when they see one with SPARK ARRESTOR stamped on the side. How silly, not to mention embarrassing for them!
  • Forest Service also tried pitifully to “enforce” the “Adventure Pass” which is a scammy, voluntary national forest useage fee not covered by any law, by unlawfully ticketing people and collecting the revenue.

They may harass you and pretend to know, but you may have to straighten them out! Be confident, firm, quiet, polite, and unwavering. Do not give them any personal information, but if they try to bully their way in or bully information out of you, feel free to state the rulings and codes you are protected by. If you are inclined to do research, maybe print out this information and keep it by your doors.

Never agree to go to the police station for questioning. Stay in your house.

Third-Party Consent

If a person gives permission to the police to search another individual’s property, this is considered third-party consent.

There are three general rules for legal third-party consent to searches:

  1. Husbands and wives may grant consent to search for each other.
  2. Parents can consent to search their minor child’s room.
  3. Minor children are not allowed to consent to a search of their parents’ property because they are underage.

In addition to family members having third-party consenting privileges, there are two types of authority for third-party consent to searching one’s personal property. The two types of authority are common authority and apparent authority.

Common authority is when there is shared use of a property and only one of the parties is present. For example, when a home is shared by two friends and one of the roommates is not present at the time of the search. This also applies to adult children or family members living with the homeowner. Additionally this applies to renters, couch-surfers, or guests living in the same building, with a landlord/sublettee, or homeowner who lives there full time and qualifies in all ways as a legal resident. This type of search is only allowed in the common areas of the property being searched. Personal, specific spaces such as designated bedrooms or closets or common rooms may not be searched.

Whether a landlord lives at a different address or on the same property, if you rent your premise fully from them, they cannot allow the police in your home. Most states give permissible reasons for landlords to enter tenants’ homes in an emergency in the absence of the tenants’ permission, like if the house is on fire or there is a confirmed gas leak. For example if the emergency of a fire occurs, and the firemen show up, and the paramedics, and the police, and they all do their thing and some kind of criminal evidence is discovered, note that all those people had probable cause to legally enter. Conversely, if there is no emergency and your landlord give you 24 hours notice that they want to come in to make repairs, note that only the landlord may enter. If they want a repair person to enter to keep the house legally habitable, like a plumber to fix a leak, a locksmith to replace compromised locks, or an exterminator to handle a confirmed pest problem, they must again notify you, and you can require that person to sign in and sign out. If they want an unnecessary person to enter your leased premise, such as a plumber to put fancier faucets on when the current ones work, a real estate agent to give them an estimation on something, etc, in most jurisdictions, you can actually refuse, and even claim harassment charges. A landlord may not let police enter for any reason, with or without notice. A request by a police officer to enter a rented home, without more, is no justification for the landlord to turn over the keys. The same is true for hotel operators. Of course, if the police return with a warrant, that’s another matter.
Again: be prepared and have a clear, written lease. Yes: oral contracts are just as binding as written contracts, but it’s your word against theirs, so have written documentation to be safe.

Next, Apparent Authority refers to a situation where a reasonable person would understand that an agent had authority to act. In other words, apparent authority is when police enter property without a warrant by someone who does not own the property, but who the police believe has some form of authority over the property. This is best illustrated by a man who has a key to his ex-girlfriend’s apartment, thus displaying apparent authority over the property and allowing the police to search the premises. A warrantless search does not violate the Fourth Amendment if a person possessing, or reasonably believed to possess, authority over the premises voluntarily consents to the search. So be careful to whom you give keys, codes, garage door openers, or other information. If you choose to give a dating partner, friend, neighbor, house sitter, etc the ability to enter your house without you, inform them of your preferences on not letting police in, and how to lock up your pets in case a warrant is served.

Legal Searches Without a Warrant
The Plain View Doctrine allows an officer to search and seize evidence found in plain view during a lawful observation without a warrant.

For the plain view doctrine to apply for discoveries, the three-prong Horton test requires:

  1. the officer to be lawfully present at the place where the evidence can be plainly viewed,
  2. the officer to have a lawful right of access to the object, and
  3. the incriminating character of the object to be “immediately apparent.”

Police can get a good, legal look at you through your windows from the street, from public property, from a property they have permission to be at, and from an airplane or helicopter in the sky. Additionally, they may have a case if your neighbor’s land is a field, abandoned, or commonly used for hiking. Police can use binoculars.
However, in all states, police cannot scan a home with infrared technology (FLIR, heat detectors, etc) without a search warrant. Kyllo v. US 2010 deemed this violates unreasonable search 4th Amendment rights.

So, be prepared. Don’t leave anything questionable in view of a window.

In fact, it is a good idea to keep all vehicles (cars, RVs, trailers, dirt bikes) and anything else with a registration number or identifying information garaged or covered with a tarp or similar. Don’t let a parking ticket or expired registration give them a reason to bother you or think you’re a criminal. They cannot tow a vehicle from private property unless the owner requested it. If it is inconvenient or not possible to habitually cover your vehicles every time you come home, it would be prudent to strategically block VIN/registration stickers/plate areas so they cannot be seen with binoculars from another property or the air. Use a bush, a fence section, or park your car facing a certain way. Don’t let them bluff you and scare you about your vehicles.

Police can walk around your yard if you don’t have a fence up. Consider installing a perimeter fence with an electric gate requiring a code.

The plain sight doctrine is also regularly used by TSA Federal Government Officers while screening persons and property at U.S. airports. Remember, you have the legal right not to go through those creepy scanners, but you will be required to submit to a pat down. It is interesting to note, on May 17, 2012, a TSA executive admitted not one single terrorist-related arrest resulted from those whole-body scanners.

Depending on your state laws, Plain Earshot and Plain Smell may also be applicable. (Plain feel also exists but pertains more to a bodily search).

One of the most common reasons police are called to a home is a loud party. If the police knock on your door, turn off the music, quiet down the party, and regain control over your guests before attending to the door. Showing the officers you have control of the situation is an excellent way to improve your situation as quickly as possible.

Next, when you attend to the door (remember, through the closed door, without opening it) ask why they are there. Try “What are you here for?” or “What brings you here?”.

You may think you know the police are at your house because of your loud party or your delinquent sibling. However, you know what happens to people who assume! Don’t assume! They might instead be there because they think someone else lives at your house, because they have questions about a nearby crime, or something else altogether. When you assume you know why the police are there, you end up giving them incriminating information about yourself that can be used against you. Instead, always politely ask them why they’ve showed up at your house.

A big part of exercising your rights is actually knowing them. Do a little Googling on federal law, and do a little Googling on your state’s law.

For example, people in California have a lot of protection. If someone is inside, smoking something other than what seems to be tobacco, and this is visible through a window, the police do not have the right to enter due to People v. John Hua 2008.

Additionally in California, police cannot say they smell something (smoke, sweet smells, etc.) coming from your property and claim that entitles them to enter via probable cause. Stink up the world, because in some states, a smell does not give them the right to enter without a warrant.

However, in some states, if police smell drugs, alcohol, rotting dead bodies, etc. they typically may enter without a warrant. You can see how this relates to a legal, unwarranted search of a vehicle especially, if alcohol is smelled, since that driver is putting others in danger. Some jurisdictions offer more protection from this, so if this has been your situation, it may be worth fighting. It is helpful to research similar cases and see how they were ruled, as this will give you ideas for your defense and also may dictate how your trial will go.

The police may enter if there is obvious danger occurring. Blood splattering on the windows, screams, violent sounds, can all legally draw police into your home.

If the police witness someone who is wanted by the law running into your house, they can come in after them.

If the police have a reason to believe a crime is taking place and/or someone is in danger, they may legally enter immediately without a warrant.

Warrants
If the police come to your home, they may not enter unless they have a warrant. If they claim to have a warrant, ask the officer to slip the warrant under the door or hold it up to the window so you can inspect it.

There are two types of warrants: Search Warrants and Arrest Warrants.

A search warrant is used to collect evidence or physical property which may be associated with a crime. The items listed better be relevant! Note which areas and items they are looking for.

An arrest warrant allows police to enter the home of the person listed on the warrant if they believe the person is inside.

Again, a search warrant allows police to enter the exact address listed on the warrant, but officers can only search the specified areas and for the items listed. Make sure it is actually signed, has the correct date, the correct address, the correct apartment number, and the aforementioned details of what areas they can search and what they are looking for.

Sometimes, the warrant is not signed or is not correctly filled out! Especially in the case of apartments, or condos, often the address is not complete. If this is your case, say “Sorry, Wrong address.” Let them know why their warrant is invalid.

If officers have a legitimate warrant, remember, you still have the right to remain silent. If there ever was a time, this is the best time to use it! Not opening the door will probably not hurt your case, either. Let them crash the door down if they really, truly have a legitimate warrant.

Important!!! If you have pets, inform them of this. Tell them that there is a dog/iguana/bunny in the house and you are putting him in his crate. Again: protection is about preparation. Have a crate or cage ready to secure your animals at any time, for any reason. Lock your pet up in its crate ASAP. You wouldn’t want your dog/iguana/bunny to get shot and killed right in front of you because the police officer “felt endangered” or is just sadistic and wants to rattle you up and cause you to freak out or otherwise get violent.

A note on seizure. In order for an officer to seize an item, the officer must have probable cause to believe the item is evidence of a crime or is contraband. The police may not move objects to get a better view. For example, in 1987’s Arizona v. Hicks, an officer was investigating a shooting, and moved stereo equipment to record the serial numbers without probable cause, and was found to have acted unlawfully.

Even if the search warrant is legit, monitor the officer’s behavior to make sure they don’t violate the terms.

Final Thoughts
Be respectful. Remember your rights.

The most common type of search is a search with a person’s legal consent. Many times, these end in some kind of problem. Most of the time, there is no warrant issued. Don’t get caught up by being a pushover and not exercising your legal rights!

Searches based on consent obtained as an undercover officer or as an informer are usually legally admissible. Pay attention to who you let in your home, and what they ask of you.

If you mess up and somehow find yourself having accidentally given permission to be searched, know that consent can be revoked at almost any time during a consent-based search. If consent is revoked, the officers performing the search are required to immediately stop searching. The prosecution is required to prove that the consent was voluntary and not a result of coercion.

Note that there are a lot of tips included in this article on how to be prepared and protected before you are ever faced with that knock on your door. Take implementing these tips into consideration.

Remember, the police are here to do their jobs. That is OK, and is very desirable. But just like your best friend with whom you play chess, it can turn into a game of cat and mouse. For that moment when police are under pressure to prove that there is crime to fight, especially when so many public servants are being laid off, they must do their job to survive just like the rest of us. We should aim to play fairly, honestly, and competitively, without letting our friends win on purpose.

Good luck!

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