Now, more than ever, it’s important to know your rights when you encounter police, sheriff’s officer, immigration and customs enforcement officers, or other law enforcement entities. Here we review your rights as they pertain to someone who encounters these agents in Arizona, away from the border area. The government’s authority at our nation’s ports of entry are at their highest level, correspondingly people’s rights are the lowest at ports of entry. What rights you have often depend on the circumstances you find yourself encountering a law enforcement officer. We will begin by reviewing general principles that apply regardless of the space in which you encounter law enforcement and then specifically look at different situations.
First, let me reinforce the fact that absolute obedience to law enforcement is not a duty. Often times people are given the impression that officers are all powerful and every word they state must be obeyed, every question they ask must be answered. That is incorrect. Law enforcement officers are public servants. They work for us, the people. Their paychecks get into their bank accounts only because we the people pay our taxes. Law enforcement officers must do their jobs within the bounds of the law and should never violate your rights.
Key Question to Memorize: “AM I FREE TO LEAVE?”
It is important to begin by clearly stating that law enforcement do not have to read you your Miranda rights prior to asking you any questions. Your Miranda rights must be read to you only if you are in custody and the officers wish to interrogate you. If a reasonable person would have felt they were not free to leave then Miranda warnings need to be given. Put simply, an officer can approach you and ask you any questions they want, in the legal world they refer to this as a “consensual encounter.” We all know in reality there is a large power imbalance between an armed officer and a private citizen, that is why it is important to know how to end what law enforcement believes is a consensual encounter. Ask this simple question: “Am I free to leave?” If they answer yes, then you should calmly end the encounter and go on with your day. If they answer no, you are not free to leave, then you should remain where you are at and refuse to answer any more questions. In a court case there are many factors a judge will consider in determining if someone is actually in custody. Our office has been fortunate enough to win such arguments after having the officer and our clients testify in front of the court. If an officer stated to you that you were not free to leave that would certainly be a factor the judge would take into consideration about whether or not a reasonable person would have felt free to leave.
Right to Remain Silent
Your right to remain silent and not answer any questions without the presence of legal counsel is entirely dependent on your ability to remain calm during a very tense, stressful situation. The right to remain silent comes from the 5th Amendment to the United States Constitution and was made famous by a case that started right here in Arizona, Miranda v. Arizona. You can simply not answer questions and remain silent, or you can inform law enforcement you are exercising your right to remain silent under the 5th Amendment of the United States Constitution.
Right to an Attorney
Your right to an attorney comes from the Sixth Amendment of the United States Constitution. To invoke this right you do have to explicitly state that you are demanding legal counsel. It is not sufficient to ask law enforcement whether or not you should get a lawyer. It is not enough to say, maybe I should have a lawyer before answering. The Supreme Court has spoken clearly on this issue, you must unequivocally demand an attorney. Leave no doubts about it and inform law enforcement you demand an attorney and will not answer any questions without the presence of legal counsel. Also remember, that if you cannot afford an attorney, the government must provide one for you.
Must I give law enforcement my name?
If you are driving a vehicle yes, you must also give proof of your identity. If you are not driving then law enforcement must have reasonable suspicion that you committed a crime. Let’s look a the two main statutes:
- A.R.S. 28-1595 states that a person operating a motor vehicle must provide their driver’s license or other proof of identification if they do not have a license. Failure to do so is a class 2 misdemeanor. This same statute requires anyone who is a passenger in the vehicle and who law enforcement has a reasonable cause to believe committed a crime also must provide evidence of the person’s identity.
- A.R.S. 13-2412 states that any person lawfully detained based on reasonable suspicion that the person committed a crime must state their true full name. To violate this statute the officer must also first inform you that refusal to answer is unlawful.
Whether or not an officer has reasonable suspicion will ultimately be up to the judge. Whether it’s through a motion to suppress or motion for egregious government conduct the judge will determine after your attorney has had an opportunity to cross examine. If you are not ultimately charged with a crime you could also bring a civil lawsuit against the officer where the judge will decide if the officer did in fact have reasonable suspicion.
When Law Enforcement Comes to Your Door
You have absolutely no obligation to open the door to speak with law enforcement. Your first option is to simply not answer the door. However, if they do have a warrant to enter the house they can use force to do so, especially if young children are in the house you might want to instead do the following. Through a closed door you can ask the officers if they have a warrant. If they do not, then kindly ask them to leave and do not answer any further questions from them. If they do have a warrant ask them to slide the warrant under the door or show it to you through a window. Confirm that there is a signature from a judge on the warrant. Often times ICE officers will appear at someone’s door and claim to have a warrant, when in fact it is one of their own documents and not a warrant signed by a Judge. You do not have to open the door if ICE only has an arrest warrant signed by ICE officers themselves. If this asks them you should ask them to come back with a warrant signed by a judge.
To be clear, you do not have to open the door and allow officers entry to your house or apartment without a warrant. Your house is your kingdom, protect it accordingly!
When You are at a Protest
The First Amendment of the Constitution protects your right to protest. However, the government can limit when and where protests take place. Your right to protest will be strongest in what is referred to as “traditional public forums.” A sidewalk, a park, an area in front of a government building so long as you are not impeding the movement of people on the sidewalk or into any of the buildings. You are also free to protest on your own property or on private property with the owner’s consent. When you are in these spaces you have the right to photograph or film anything in public view, including law enforcement.
When recording the law enforcement officer may ask you to not interfere with an arrest they are making but cannot order you to stop recording. You should calmly take a few steps back but remain recording. You can state, “is this far enough back officer?” and take a few steps back. You can keep doing that until the officer can no longer say you are interfering with their duties.
Officers may not confiscate your recordings/phone without a judicial warrant. When an over zealous officer nonetheless demands your phone politely remind them that you will not turn it over without a warrant and that you are within your First Amendment right to record. Please be aware that this could lead an officer to forcibly take the device from you. While this would be a violation of your rights, use your best judgment to avoid violence or false charges against you. This may even lead to your arrest for failure to obey law enforcement. The reality is officers often don’t respect your rights and instead falsely arrest or physically harm people.
If you keep your protest to the streets or a sidewalk, you should not need a permit. Officers can ask you to stay in a certain area to avoid obstructing car or pedestrian traffic.
Should I consent to a search?
Absolutely not. If law enforcement asks for permission to search you or your vehicle you have the legal right to decline. Demand a warrant, make law enforcement present their case to a neutral judge before giving up your constitutional right. There are circumstances under which law enforcement can search even without your consent. Do not resist or this could lead to additional charges, not to mention violence from the officer. If officers fear for their safety they can pat down your clothing. This is a search for weapons. In order for officers to search your vehicle without consent they must have probable cause to believe there is evidence of a crime in your vehicle, they are searching for weapons in the vicinity you are sitting, or after you have been arrested.
What to do if your rights are violated
Imagine it is months down the road and you are being asked to prove your rights were violated. What is the best evidence you can gather during the encounter or just after? Usually, the best evidence is a video recording. If you cannot record then immediately write down the officer’s name and badge number, the number of any patrol vehicles and ask for contact information from any witnesses who saw or heard what happened. Maybe one of the witnesses recorded what happened, you want to be sure you can get in touch with them in the future. It’s also important to document any injuries through photos or videos. Feel free to contact our office to see if we could be of assistance in the case or refer you to a government agency where you can file a complaint.