How to Flex Your Rights During Police Encounters

Everyone's talking about this wild story from New York City, in which two men spent 5 days in jail for a bag of coconut candy. The driver consented to a search of his vehicle and both men were arrested after police discovered what they believed was crack cocaine. An officer told the passenger to "shut up" when he insisted it was candy, and the men had to wait in jail for almost a week before lab tests proved their innocence.

In addition to demonstrating the combined arrogance, incompetence, and contempt for innocent people that so often characterizes drug war policing, the story also provides another glaring example of how consenting to police searches can instantly make a bad situation much worse. Pete Guither explains:

Lesson #1: Never, ever, ever, ever, agree to a search. If you’re guilty, you’re helping them catch you. If you’re innocent, you’re wasting your time, you’re taking a chance since they aren’t required to fix anything they break, you’re leaving yourself open for being charged for something you didn’t know about that fell out of a friend’s pocket, and you’ve got the possibility that a couple of morons will think your coconut candy is crack and throw you in jail for a week.

Whether or not refusal prevents the search is beside the point here (although, yes, refusal often prevents the search). Such cases are less likely to be prosecuted, even after evidence is discovered, due to the fact that police and prosecutors do – believe it or not – sometimes recognize a constitutional violation and decline to proceed simply because they don’t want to bring a messy case into the courtroom. Finally, consider how much more impressive a civil suit would look in this case with an illegal search thrown into the mix along with the already-compelling story of spending days in jail over coconut candy.

We'll never know how things would have turned out if these guys had refused the search, but there's no question what happened when they agreed to it.

Frishling, tell him to get a warrant. Crap. Too late.

There's lots of web chatter about the two travel bloggers who got home visits from Transportation Security Administration agents. Following last week's attempted underwear bombing, the bloggers had posted a leaked TSA memo with instructions to airlines. The most familiar and ridiculed requirement blocks passengers' access to bathrooms, blankets, video entertainment, and carry-on bags during the last hour of flight.

So in an attempt to plug their own administrative leak, the new law enforcement agency did what law enforcement agencies do: they sent agents to investigate. While it's terrifying to imagine TSA agents harassing us at our homes beyond the confines of airport security, this should surprise no one.

Also not surprising is the fact that one of the two bloggers failed to flex his rights in the face of police intimidation and trickery.

According to the AP:

Steve Frischling, said he met with two TSA special agents Tuesday night at his Connecticut home for about three hours and again on Wednesday morning when he was forced to hand over his laptop computer.

Uh-oh, you might wanna think twice before posting those party pictures on Facebook:

University of Wisconsin-La Crosse student Adam Bauer has nearly 400 friends on Facebook. He got an offer for a new one about a month ago. “She was a good-looking girl. I usually don’t accept friends I don’t know, but I randomly accepted this one for some reason,” the 19-year-old said.

He thinks that led to his invitation to come down to the La Crosse police station, where an officer laid out photos from Facebook of Bauer holding a beer — and then ticketed him for underage drinking.
…
He was among at least eight people who said Wednesday they had been cited for underage drinking based on photos on social networking sites. [LaCrosse-Tribune]

First things first, there's certainly nothing good to be said about these sorts of law-enforcement tactics. Police always have better things to do than roam the Internet looking for pictures of naughty college kids and there's no excuse for invading people's privacy to make a couple petty arrests. The very notion of officers assuming fake identities on Facebook is just inherently repugnant and serves only to destroy their relationship with the very people they're supposed to be protecting.

That said, it's also worth keeping in mind that you have a 5th Amendment right not to post incriminating pictures of yourself on Facebook. It's just an unfortunate reality that police do creep around on the web an awful lot for no particularly good reason and you never know where their prying eyes might land. This means you should think about what you're posting, and keep an eye out for other people incriminating you as well. Simply untagging yourself from a couple questionable photos could be all it takes to save you a huge hassle down the road.

In my experience, this issue goes beyond what may or may not have taken place in one photo on one particular night. I've known people who got passed over for a job because their prospective employer found unflattering photos online. Worse, I know of instances in which online photos were used to attack someone's character in an otherwise unrelated criminal case. The bottom line is that posting pictures online has much broader implications than simply showing your friends what a kick-ass weekend you had.

Finally, remember that if you're ever confronted with a photo that shows you in a compromising situation, you don't have to incriminate yourself. Rarely will the photo itself be sufficient evidence to convict you of anything. What they're really looking for is the confession that they hope will come spilling out of your mouth after they show you what they've got. If you keep your mouth shut and ask for a lawyer, chances are they've got nothing.

Hours after I met Phil Mocek at the Drug Policy Alliance conference in Albuquerque, he was arrested at the local airport after he refused to show Transportation Security Authority officials his identification.

While we at Flex Your Rights start by educating folks on how to avoid arrest, we admire the Flex experts (Flexperts?) like Phil who know their rights and are prepared to take an arrest in order to test bad laws in court.

And this is where things get weird with the shadowy world of the TSA: Phil didn't break any written laws. Refusing to provide ID to TSA agents isn't a crime -- yet he was charged with disorderly conduct, concealing identify, resisting arrest and criminal trespass.

Presumably, most or all of these charges will be dropped. And Phil is likely to fight things out in court if they are not.

Regardless of the outcome, Flex gives major props to freedom fighters like Phil and John Gilmore who put their freedom on the line to expose new and strange limitations on everyone's personal freedoms.