A Note on Police Encounters

This document is not a substitute for legal advice and the information contained herein does not create an attorney-client relationship. Anyone detained or arrested by the police should consider retaining counsel.

Summary of Federal Constitutional Rights During Police Encounters at Protests and Marches

The Fourth Amendment protects against unreasonable searches and seizures. This means that:

  • The police must have probable cause that a crime has been committed in order to conduct a nonconsensual search of a person or his or her belongings.
    • But the police need a warrant to search a person’s cell phone. Once a warrant is obtained, police can compel the cell phone owner to provide a fingerprint to unlock the phone, but cannot compel the cell phone owner to disclose the passcode to unlock it.
       
  • The police must have reasonable suspicion (which is a lower threshold than probable cause) that a person has committed a crime or poses a threat to officer safety in order to conduct a pat-down search of an individual outside his or her clothing. A pat-down search does not include a search of closed bags or containers in the person’s possession.
     
  • If the police ask to conduct a search and the person consents, the police can search without probable cause.

The Fifth Amendment protects against self-incrimination. This means that:

  • Any person who is detained by the police has the right to remain silent. But the person must clearly and unequivocally invoke the right to remain silent by saying “I wish to remain silent.”
     
  • The Fifth Amendment provides no protection to people who choose to speak. Anything a person says to the police can be used against him or her, and it is a crime to lie to law enforcement.

The Sixth Amendment provides the right to an attorney to any suspect who is detained or arrested. This means that:

  • A person has the right to a lawyer as soon as he or she is detained and the police begin asking questions. But the person must clearly and unequivocally invoke the right to a lawyer by saying “I want to speak to a lawyer.” Once a person invokes this right, the police are required to cease all questioning. But if the person starts talking again after invoking the right, the police can begin questioning again.  

What this means during protests and marches

If you are stopped by the police, be polite, remain calm, and ask if you are free to go. If the answer is yes, consider walking away. If the answer is no, you are being detained.

The police can conduct a pat-down search of you outside your clothing if they have reasonable suspicion that a crime has been committed or that you are armed and dangerous. They can conduct a more extensive search of you and your belongings if they have probable cause to believe a crime has been committed or they receive your consent to perform the search. If the police begin to conduct a search without your consent, say clearly “I do not consent to this search.” If they search anyway, do not resist in any way.

If you are detained and/or arrested by the police, anything you say can be used against you. The safest course of action is to invoke your right to remain silent and request a lawyer. It is critical to remain silent after you invoke this right; if you begin speaking, your 5th and 6th amendment rights may be waived and the police can begin questioning you again.

Lock your cell phone with a passcode, not a thumbprint.

Additional (non-legal) considerations

Media: In the event of a law enforcement incident, all media questions should be directed through the group's designated press contact. Group members should avoid interacting too much with reporters on the scene, keeping in mind that passing comments can quickly become record. Once immediate safety and legal concerns have passed, members who were in attendance may wish to share their contact information with their group's press point of contact in the event of follow-up questions from the media.

Privilege: Special circumstances like medical needs/disability, limited English language ability, non-citizenship, criminal history or pending cases, transgender/gender-nonconforming, economic and family obligations, and other situations, can heighten the consequences of arrest. People with concerns should strongly consider these factors before and/or while engaging in protests and, when possible, consult a lawyer before participating in civil disobedience. Those in more privileged positions need to be cognizant that some members of your group will be more comfortable taking certain risks than others.

Caroline KavitLegal