I am a criminal defense attorney with the firm Valencia, Ippolito and Bowman in San Jose, California, I am not only a former prosecutor but a former DJ and drummer and an avid festival goer. I combine my two passions (The Law and Music) in my column, “The Festival Lawyer”.
The, “Festival Lawyer” is an ongoing column giving festival goers practical advice about their rights in any encounter with the police. The column also discusses harm reduction and other safety issues relevant to the festival community. My idea for “The Festival Lawyer explains in less than two minutes” video series is to outline some simple steps you can take to safeguard your Constitutional Rights in a variety of situations. Although geared primarily for festival goers, these tips actually apply to anyone, anywhere.
The first video in my series outlines the five steps you need to take to keep your phone free from unwanted police searches.
STEP ONE – KNOW YOUR RIGHTS
“THIS IS A PUBLIC SERVICE ANNOUNCEMENT……WITH GUITAR…”
Know Your Rights – The Clash
A negative encounter with a police officer can become a tense and scary situation if not handled correctly. It’s important to stay calm and not escalate the situation. Learning and then politely using a few key legal phrases can make it much easier for you to stand up for your rights. But before you can enforce your rights, you have to know what they are. Or to put it another way:
“As a practical matter, not knowing your rights and not having any rights are the same thing.”
Festival Lawyer 2015
Last June, in a case called Riley v. California, the Supreme Court gave everyone an important new 4th Amendment right that they may not know about. The Riley court ruled that the police now are required to get a search warrant before they can search a suspect’s cell phone after arrest.
Now normally, the police don’t need a search warrant to go through your property after you have been arrested. Legally speaking, the idea is that you’ve given up your normal privacy rights since you are on your way to jail. Also, law enforcement needs to check you for weapons and make sure you don’t have evidence that can be destroyed. A warrantless search like this is called a, “Search incident to arrest.” Up until the Supreme Court’s ruling in Riley, a lot of courts took the position that cell phones were covered under this “Incident to arrest” exception. These courts ruled that there was no real difference between a person’s cell phone and a wallet or purse and officers were allowed to search them all without a search warrant.
On the other hand, some courts took the position that cellphones are more like mini computers. Police are generally required to get a search warrant before searching the contents of a home computer. This is due to the extremely private nature of the information housed on them.
In Riley, the Supreme Court sided with privacy advocates and civil libertarians on this issue. Because of the sensitive private matters that might be on a person’s phone, the Supreme court ruled that it is more appropriate to require the police to get a warrant before searching them. ( (PS, don’t act like you don’t know what I’m talking about when I say “sensitive private matters”…. Most of you wouldn’t let your spouse or friends go through your cellphone let alone a police officer!!)
As Chief Justice Roberts explained in the court’s decision:
“Modern cellphones are not just another technological convenience….With all they contain and all they may reveal they hold for many, ‘the privacies of life.” The fact that the the cell phones are mobile doesn’t change the fact that this is exactly the type of private information the 4th Amendment is meant to protect.”
For police looking to search a suspect’s cell phone, Roberts had one simple instruction:
“Our answer to the question of what police must do before they search a cell phone seized incident to an arrest is accordingly simple - get a warrant.”
Okay so now that you know that you have a new constitutional right, how do you go about protecting it? It’s important to realize that most of the time, cops don’t want to bother with getting a search warrant for a phone. Instead, they will normally just ask the owner to give them permission to search it.
Therefore the simplest tip I can give you is to NEVER give the police permission to search your phone.
I can hear you saying, Never?! Really? Never? …As in never ever?
Yes, never ever. Or to paraphrase Nigel Tufnel, “None more never”
The Supreme Court has ruled that it is your absolute and complete right to say “NO’ to a search of a phone. So, a police officer who asks you for permission to search your phone is basically saying, “Hi, mind if I violate your Constitutional Rights by rummaging through your personal property ?”
Remember, the Supreme Court’s ruling in Riley specifically addresses searches performed during an arrest. So if you are not under arrest – say you got pulled over for a traffic citation – then the police have even less right to search your phone.
The important point is that if you give the police permission to search your cell phone you can’t later go back and argue about their actions. You’ve waived your right to object. On the other hand, If you refuse, the police can still search the phone, but now they have to justify their search to a judge and show they have probable cause for the search.
That’s why, legally speaking, there is just no good reason for you to agree to ever let the police go on a “fishing expedition” of ANY of your personal property.
If you are asked if you consent to a search, say clearly and firmly
“I DO NOT CONSENT TO A SEARCH OF THIS PHONE”
People sometimes worry that saying no to a police officer is going to make them “Look guilty.” But If the police are detaining or arresting you,how it looks is really the least of your problems. As the great Saul Goodman put it,
“It’s getting arrested that makes you look guilty”
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As I mentioned in the article, it is super nerve racking remembering what to do and say in an encounter with the police. Therefore we’ve created a lock screen with some of the key legal phrases you may need in a police encounter available as a download lock screen here
STEP THREE – ADD A PASSWORD TO YOUR PHONE FOR EXTRA SAFETY
As an additional protection, I recommend adding a password to your phone. Under the 5th Amendment of the Constitution you have a right not to incriminate yourself. If the police ask you for your password or try to force you to reveal your PIN, that may end up violating your right against self-incrimination.
The law in this area is a little tricky. You see, the right against self-incrimination says that you can’t be forced totestify against yourself. But courts have ruled that you can be forced to give physical evidence against yourself, like giving a DNA sample or a voice examplar.
That’s why the police are allowed to force a suspect to stand in a physical lineup and say “Hand me the keys you f*cking c*cksuckers” with a bunch of other “Usual Suspects” without running into a 5th Amendment issue. (Unedited, super unsafe for work language scene here..)
I suggest adding a password to your phone rather than just going with a fingerprint ID because of this potential issue. It’s not that there is anything wrong with a fingerprint ID. In fact, they are wonderfully convenient. However, at least one court out there has ruled that forcing a suspect to use their fingerprint to open a phone doesn’t constitute “testimony” and therefore doesn’t implicate the 5th Amendment.
As the court wrote:
“In this case, the defendant cannot be compelled to produce his passcode to access his smartphone, but he can be compelled to produce his fingerprint to do the same.”
A copy of the opinion as well as a good summary of the law in this area can be found here:https://mashable.com/2014/10/30/cops-can-force-you-to-unlock-phone-with-fingerprint-ruling/
STEP FOUR – LEARN TO RECORD THE POLICE SAFELY
As always, YOU are always in the best position to know what to do in a particular situation legally and practically speaking given all the facts and the law of your jurisdiction. This is particularly true when it comes to the issue of recording the police.
On the one hand, recording the police is easily the most effective way to document a bad encounter with them. Recording a bad interaction preserves the truth of what happened and can provide evidence for your lawyer if you have to go to court later. I have personally seen clients exonerated through the use of cellphone footage on numerous prior occasions.
On the other hand, the decision to start recording a police officer can seriously inflame an already tense situation. Officers who see a recording device may feel their authority is being challenged in some way.
Police officers have a great deal of discretion as to who they arrest and why. In the court system, attorneys sometimes use the term, “contempt of cop” to describe a situation where an officer arrests someone for a charge like “interfering with an arrest” or “drunk in public” for essentially failing the attitude test with the officer. Your personal assessment of when to start recording the police is going to depend on a lot of factors including your own comfort level and the nature of your encounter. But it’s important to get the legal knowledge ahead of that decision. That way when you do record, you know how to do so legally and safely.
The always great Steve Silverman of flexyourrights.org has an excellent video on what you need to know legally and practically before video taping a police encounter.
Step 5 – DOWNLOAD A STREAMING APP FOR YOUR PHONE
Okay, so you have done your research in Step 4. If you do you choose to video record the police, you will also want to download a streaming application.That way, you don’t have to worry about the police confiscating your phone or your evidence being lost or destroyed in some manner. Flex Your Rights as well as copblock.org recommendBambuser for this purpose. Bambuser is an mobile video streaming platform that allows users to stream and share live video using your smart phone.
I found Bambuser very easy to download and use. It allows you to either stream “live” or save for later uploading, allows you to broadcast in public or private,and share to most social networks easily.
I’ve also heard good things about this streaming app
FINAL POINTS – LEGAL DISCLAIMER
Reminder. I am an attorney but I am not YOUR attorney. Nothing here should make you think that I am giving you legal advice or that I am establishing an attorney-client relationship. The point of these articles and videos is to get you started on learning the law for yourself. Now go take action. Lock down your phone and make it “Fest Law Approved.” Be sure to tell your festival buddies .
As always, If you have ideas on how to share this information or how to improve the next video please contact me at @ [email protected]