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Can Police Search Your Car or Your Body?
Two Texas women wish they would have known the answer to this question before they were stopped along the highway last summer. On July 13 of 2012, two young Texas women were out driving and got pulled over by the police for littering.
Trooper David Farrell told the two women, Angel Dobbs and her neice Ashley Dobbs, that they would be cited for throwing cigarette butts out the window. Nothing out of the ordinary here, just a police officer doing his part to keep litter off the streets. However, what happened next may disturb you. Trooper Farrell calls female Trooper Kelley Helleson to the scene to help with a cavity search of the two women because he said the women were acting weird and he smelled marijuana coming from the vehicle. The above video is from the police dashcam of Trooper David Farrell at the scene. Notice the line of questioning from the officer to Ms. Dobbs. What do you think you would do in this situation?
Know Your Constitutional Rights
According to the United States constitution, the two women in this situation could have expressed their rights and potentially avoided the unreasonable search of their bodies and their vehicle. There are two things the women should have known before getting stopped.
1. Plead the Fifth. The women answered every question the officer asked. This is a mistake. Since the questions officers ask are typically meant to lead you to incriminate yourself, you are not required to answer. The Fifth Amendment to the U.S. constitution says (in part):
No person shall be compelled in any criminal case to be a witness against himself…
Therefore, if an officer asks you, “Do you know why I pulled you over?” or “Do you know what the speed limit is?” or “How much marijuana do you have in the car?” it is best not to say anything. Instead, ask the officer how you can help him. Just be calm and courteous, but do not answer any questions that could potentially incriminate you.
2. Do NOT consent to searches. The women were willing participants in the cavity search (although they are now suing the state troopers over the incident). If they had been more aware of their rights, they may have avoided it altogether. The Fourth Amendment to the constitution says (in part):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
According to FlexYourRights.org, a nonprofit educational organization dedicated to improving constitutional literacy, you can exercise your fifth amendment rights at a traffic stop by not consenting to any searches. An officer is only allowed to search your vehicle and your person if he or she has consent or if they have probable cause. Even if the officer says he has probable cause, you can still express verbally to the officer that you do not consent to any searches, but never physically try to prevent an officer from performing a search, as this could turn out negatively for you.
Should You Record Police Encounters?
You can also consider recording any police behavior you believe is wayward, but be sure you know the law in your state, and be sure you know how to properly go about recording a police encounter. Here is a list of 7 rules you should know about recording the police (from reason.com):
1. Know the Law Wherever You Are. Conceived at a time when pocket-sized recording devices were available only to James Bond types, most eavesdropping laws were originally intended to protect people against snoops, spies, and peeping Toms. Now with this technology in the hands of average citizens, police and prosecutors are abusing these outdated laws to punish citizens merely attempting to document on-duty police.
The law in 38 states plainly allows citizens to record police, as long as you don’t physically interfere with their work. Police might still unfairly harass you, detain you, or confiscate your camera. They might even arrest you for some catchall misdemeanor such as obstruction of justice or disorderly conduct. But you will not be charged for illegally recording police.
Twelve states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—require the consent of all parties for you to record a conversation.
However, all but 2 of these states—Massachusetts and Illinois—have an “expectation of privacy provision” to their all-party laws that courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police.
2. Don’t Secretly Record the Police. In most states it’s almost always illegal to record a conversation in which you’re not a party and don’t have consent to record. Massachusetts is the only state to uphold a conviction for recording on-duty police, but that conviction was for a secret recording where the defendant failed to inform police he was recording.
3. Respond to Stuff Cops Say. When it comes to police encounters, you don’t get to choose whom you’re dealing with. You might get Officer Friendly, or you might get Officer Psycho. You’ll likely get officers between these extremes. But when you “watch the watchmen,” you must be ready to think on your feet.
In most circumstances, officers will not immediately bull rush you for filming them. But if they aren’t properly trained, they might feel like their authority is being challenged. And all too often police are simply ignorant of the law. Part of your task will be to convince them that you’re not a threat while also standing your ground.
Police aren’t celebrities, so they’re not always used to being photographed in public. So even if you’re recording at a safe distance, they might approach and ask what you are doing. Avoid saying things like “I’m recording you to make sure you’re doing your job right” or “I don’t trust you.”
Instead, say something like “Officer, I’m not interfering. I’m asserting my First Amendment rights. You’re being documented and recorded offsite.”
4. Don’t Share Your Video With Police. If you capture video of police misconduct or brutality, but otherwise avoid being identified yourself, you can anonymously upload it to YouTube. This seems to be the safest legal option. For example, a Massachusetts woman who videotaped a cop beating a motorist with a flashlight posted the video to the Internet. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her. (As usual, the charges against her were later dropped.)
On the other hand, an anonymous videographer uploaded footage of an NYPD officer body-slamming a man on a bicycleto YouTube. Although the videographer was never revealed, the video went viral. Consequently, the manufactured assault charges against the bicyclist were dropped, the officer was fired, and the bicyclist eventually sued the city and won a $65,000 settlement.
5. Prepare to Be Arrested. Keene, New Hampshire resident Dave Ridley is the avatar of the new breed of journalist/activist/filmmaker testing the limits of the First Amendment right to record police. Over the past few years he’s uploaded the most impressive collection of first-person police encounter videos I’ve ever seen.
Ridley’s calm demeanor and knowledge of the law paid off last August after he was arrested for trespassing at an event featuring Vice President Joe Biden. The arresting officers at his trial claimed he refused to leave when ordered to do so. But the judge acquitted him when his confiscated video proved otherwise.
With respect to the law Ridley declares, “If you’re rolling the camera, be very open and upfront about it. And look at it as a potential act of civil disobedience for which you could go to jail.” It’s indeed disturbing that citizens who are not breaking the law should prepare to be arrested, but in the current legal fog this is sage advice.
6. Master Your Technology Smartphone owners now outnumber users of more basic phones. At any moment there are more than 100 million Americans in reach of a device that can capture police misconduct and share it with the world in seconds.
If you’re one of them, you should consider installing a streaming video recording and sharing app such as Qik orBambuser. Both apps are free and easy to use.
The magic of both apps is that they can instantly store your video offsite. This is essential for preserving video in case police illegally destroy or confiscate your camera. But even with these apps installed, you’ll want to make sure that your device is always passcode protected. If a cop snatches your camera, this will make it extremely difficult for her to simply delete your videos. (If a cop tries to trick you into revealing your passcode, never, never, never give it up!)
Keep in mind that Qik and Bambuser’s offsite upload feature might be slow or nonexistent in places without Wi-Fi or a strong 3G/4G signal. Regardless, your captured video will be saved locally on your device until you’ve got a good enough signal to upload offsite.
Both apps allow you to set your account to automatically upload videos as “private” (only you can see them) or “public” (everyone can see them). But until police are no longer free to raid the homes of citizens who capture and upload YouTube videos of them going berserk, it’s probably wise to keep your default setting to “private.”
7. Don’t Point Your Camera Like a Gun. “When filming police you always want to avoid an aggressive posture,” insists Holmes. To do this he keeps his strap-supported camera close to his body at waist level. This way he can hold a conversation while maintaining eye contact with police, quickly glancing at the viewfinder to make sure he’s getting a good shot.
Obviously, those recording with a smartphone lack this angled viewfinder. But you can get a satisfactory shot while holding your device at waist level, tilting it upward a few degrees. This posture might feel awkward at first, but it’s noticeably less confrontational than holding the camera between you and the officer’s face.
Also try to be in control of your camera before an officer approaches. You want to avoid suddenly grasping for it. If a cop thinks you’re reaching for a gun, you could get shot.
So, back to our original story. Can police search your car or your body? Well, maybe not in this case. According to watchdogwire-texas, the two Texas women have filed a lawsuit against the officers involved in the incident. Trooper Kelley Helleson, who performed the cavity search on the women, has been fired by the Texas Department of Pubic Safety, and she is being charged with two counts of sexual assault and two counts of official oppression. Trooper David Farrell, the trooper who originally stopped the vehicle, is being charged with theft after one of the women in the car reported a bottle of prescription medication missing. Farrell is currently suspended from his post with DPS.
The takeaway lesson is that you must know your rights in these types of situations. It is difficult to feel like you have any rights when you are being bullied by an authority figure, but the constitution gives all citizens certain rights that may not legally be violated. But you can unknowingly forfeit these rights by not understanding them properly. That’s why we urge you to learn more about protecting your privacy, and make sure this doesn’t happen to you.
10 Rules For Dealing With The Police – Video (Flex Your Rights)
7 Rules For Recording The Police (Reason.com)