During the presidential debates this week Donald Trump touted the tactics of “stop-and-frisk
” as a way of combating urban crime. The controversial policing tactic was actually deemed unconstitutional by a federal judge. Below we discuss the stop-and-frisk laws
that exist in California and what to do if you are stopped and arrested or held by police officers.
California Stop-and-Frisk Laws
California’s law of “stop-and-frisk”
(also known as “Terry stops
“) has two basic tenets:
1.) Police are able to temporarily detain a suspect in a public place-even without a valid arrest warrant-if they have a “reasonable suspicion” that the suspect has been involved in criminal activity; and
2.) Police are able to conduct a pat-down search (also known as a “frisk”) of a suspect’s outer clothing to look for weapons if they have a justifiable belief that the suspect may be armed and dangerous.
The laws of stop-and-frisk
are rooted in the Fourth Amendment to the U.S. Constitution. Under this Amendment, a person has the legal right to be free from unreasonable “searches and seizures” conducted by law enforcement.
A temporary detention conducted without an arrest warrant is called a “seizure,” and a pat-down search for weapons is called a “search.”
Know Your Rights with Stop-and-Frisk
It is a serious civil rights violation if you have been detained and been a victim of an illegal stop-and-frisk
. Often times this happens when a police officer stops and frisks a suspect without good cause. In this instance, evidence obtained via the illegal stop-and-frisk cannot be used to charge a suspect with a crime.
If you have been the victim of an illegal stop-and-frisk, you should immediately contact a criminal defense lawyer.
Your Rights if You Get Pulled Over
Whether it be criminal charges, or simply being pulled over for speeding, chances are if you haven’t had an interaction with a police officer, at some point you will. It can be scary, and often feel as if you are assumed guilty – even for minor infractions. Because of that, it’s important to know that you have legal rights that protect you. Below we outline some of those rights so that you feel prepared should you need to interact with police officers.
Being pulled over by a police officer can be incredibly stressful. From the moment those lights turn on you immediately start questioning what you did wrong and how you are going to prove you are innocent. It’s important to remain calm and follow these guidelines:
- Look for a convenient area to pull over – make sure it is safe for the officer to pull in behind you. Also, if it is dark, you might decide to pull over to an area that is well lit.
- All of these actions will show the police officer that you are taking their safety into account.
- Slow down, turn on your turn signal and pull over
- Take the keys out of the ignition and place them on the dash
- Relax and take a deep breath
- Roll down your driver’s side window
- Turn on interior lights if it is dark
- Make sure all your movements are slow so that the officer can watch you and ensure that you are not drawing a weapon or hiding something
- Do not reach for anything, but rather, place your hands on the steering wheel
- When the officer approaches, allow him or her to speak first. Typically he or she will ask for your license and registration.
- Reach for them slowly and deliberately, hand them to the officer, and then place your hands back on the wheel
- Be polite and answer any questions asked of you
- Follow any orders given to you by the officer
Getting pulled over can be stressful, but as long as you make the officer feel comfortable and safe and you act responsibly, you have a better chance of getting through the experience.
Police and Search Warrants
On TV, or in movies, you often hear that a police officer needs a “search warrant” to enter a home. That’s exactly correct. A search warrant allows an officer the legal right to enter a home or business to look for evidence. Typically a search warrant will include everything contained in the property’s perimeter, including outbuildings and automobiles that are on the property.
An officer is required to knock, announce himself, and use force to enter unless the warrant specifically states the officer can make an unannounced entry. Also, a police officer does not have to “wait” for admittance by the occupant.
The police officer also does not need to display the warrant to the occupant or owner before entering.
Under the search warrant, an officer cannot search the person of anyone found on the premises unless there is reasonable cause to believe that person is engaged in criminal activity or poses a threat to officer safety.
Grounds for Police Issuing Search Warrant
Under California law, these are the requirements for issuing a search warrant:
- The property was stolen or embezzled
- The property to be seized is evidence that a felony has occurred or that a particular person has committed a felony
- The property is child pornography
- There is a warrant to arrest a person
- The property to be seized is in possession of someone who intends to use it to commit a crime, or the property is in possession of another person to whom he/she may have delivered it for the purpose of concealing it or keeping it from being discovered
- A firearm or other deadly weapon was used at the scene of a crime
- A mentally disturbed person is in possession of a firearm
- A person subject to a protective order or restraining order is in possession of a firearm and refuses to relinquish it
- During an investigation of certain misdemeanor crimes where a felony is also suspected
- An investigator has shown probable cause to a judge.
A Note About Exemptions: Attorneys, doctors, psychologists, and clergy are exempt from searches of professional records that might be in their possession unless they are suspected of criminal activity themselves.
Miranda Rights and Police
In 1966, the U.S. Supreme Court ruled in Miranda v. Arizona, that individuals arrested because they are believed to have committed a crime are allowed certain rights that must be explained to them. This must happen before any interrogation. It’s important to note that these rights only need to be read when a person has been taken into custody. “Miranda Rights” are meant to protect a suspect from self-incrimination and is protected under the Fifth Amendment of the U.S. Constitution.
Those “Miranda Rights
” are as follows:
- You have the right to remain silent and refuse to answer questions.
- Anything you say may be used against you in a court of law.
- You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
- If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
Interrogations by Police
Regardless of if you are informally interrogated by a police officer (such as during a pullover for a traffic violation) or formally interrogated for a crime, remember that there are specific laws that protect you. An officer will use any number of tactics to get a confession from you, regardless of you are guilty or not. It has been shown in clinical research that these tactics are effective in getting confessions from people who are later exonerated by DNA, and thus have always been innocent.
There are two key things to remember if you are being interrogated:
- Interrogations are set up and conducted to produce confessions – even from the innocent
- The best way to protect yourself is to remain quiet about anything. Do not make a statement without first talking to a criminal defense attorney. The best way to not incriminate yourself is to not say anything at all.
Working with a Criminal Defense Attorney
Criminal charges can be complex, requiring much gathering of evidence and information. It’s highly advised that you work with an experience criminal defense attorney that will be able to advise you on the best defense.
Working with Sevens Legal, APC
If you or loved ones is accused or charged with any type of crime call us. Let us support and help you during this tough time. Our firm award winning attorneys provides hope and peace of mind. The Sevens Legal, APC office is located in both San Diego and Escondido. We have time and time again helped Southern California residents get their cases dismissed or penalties reduced.
Criminal Defense Attorneys
3555 4th Ave.
San Diego, CA 92103
Phone: (619) 297-2800