Published on August 7th, 2013 | by Greggory Moore1
An Object Lesson in Exercising Your Right Not to Talk to Police
By Greggory Moore
I could tell by the way the police cruiser was crawling alongside the curb that the officers had taken an interest in me. Since I was simply walking down the street and had not been engaged in any remotely criminal or even suspicious behavior, I could not fathom why. But I was about to find out.
Some pertinent background info: I don’t dislike cops. I wish we didn’t live in a world where they are necessary. But if wishes were fishes, you know? We don’t need some of the laws they are charged with enforcing, and there are plenty of cops who ought to be in some other line of work. But we need police on the streets. Not only do I not object to cops, but I’m glad that where I live (namely, in the middle of downtown Long Beach) is proximate to a police station.
Nonetheless, as a dutiful civil libertarian, I do not consent to talk to police officers without reason. I’ve got no problem approaching them in my capacity as a journalist; and if I am a witness to an accident, crime, genuinely suspicious behavior, or potential peril, I won’t hesitate to call them up or flag them down. If they approach me and can provide a reasonable rationale for speaking with me, I don’t mind helping them out. And I encourage everyone to do the same.
But sometimes police go on what I call “fishing expeditions,” where they approach someone without any solid grounds to do so—manner of dress, skin color, etc. This is where it becomes paramount to both understand your rights and exercise them, even—and perhaps especially—when you have absolutely nothing to hide. I’ll get to why a bit later on, but right now let’s return to the action.
As an inveterate people-watcher, after walking home down Pine Ave. and noticing how many people were out and about, I decided to venture back to downtown’s main drag around 1:30 a.m. to behold the bars and clubs letting out for the evening. If you like crowds, cacophony, and human dynamics, you can do a lot worse than Pine Ave. on a Saturday night. Drunkenness was everywhere. Skirts barely long enough to cover undergarments seemed to be the unofficial uniform. In front of Sevilla a couple of macho guys went chest-to-chest, before cooler heads prevailed.
As usual, there was a noticeable police presence—understandable, considering that at the moment this was almost certainly the greatest concentration of activity in the entire city.
I strolled up Pine at a leisurely pace, crossed at 3rd Street and headed back south. I popped up to a second level, where a couple of clubs were closing, and watched the crowd, then made my way back to ground level. It was after I crossed Broadway that I noticed the cruiser. I ignored it until one of officers whistled to get my attention, then waved me over to the car. He said something I couldn’t make out.
“Excuse me?” I asked.
“Where’s your satchel?” he said.
“Did you lose something? Did you lose your satchel?”
The only thought that popped in my head was that they had a report of someone losing something—a satchel?—and that I fit the description of the owner. But this seemed highly unlikely. “No,” I said.
“You didn’t have a satchel before?”
Satchel. I probably hadn’t heard that word spoken more than a half-dozen times in my life. “No,” I said.
“Where are you going?”
This was, it seemed, a fishing expedition. “Why are you asking me that?” My annoyance was probably showing.
“Just curious,” the officer said.
I gave a little sigh, because you never know how things are going to turn when you show resistance to the police. I don’t mean that I was worried they were going to jump out of the car and start beating me, but a bit of hassle is not out of the question. I uttered a phrase I have at the ready for such situations: “Are you asking me for consensual contact, or are you detaining me?”
Say it with me: Are you asking me for consensual contact, or are you detaining me? This is a phrase every American citizen should commit to memory. And here’s why: Aside from situations that call for immediate use of deadly force, there are three levels of contact between police and the citizens they are sworn to protect and serve. arrest, detainment, and consensual contact. Arrest, I’m sure, needs no introduction. If you’re under arrest, you’ll be informed of your situation in no uncertain terms. But distinguishing between detainment and consensual contact is another matter.
For police to detain you—which means that, while you have not (yet) been taken into custody, you are not free to leave and are being ordered to provide information—they must have no less than “reasonable suspicion” that you have committed, are in the act of committing, or are about to commit illegal activity. Yes, “reasonable suspicion” is vague, but it is by no means meaningless. If a police officer detains you without being able to demonstrate reasonable suspicion, that is grounds for disciplinary action, lawsuits, and a whole mess of stuff the police would just as soon avoid.
Ascertaining whether you are being detained is simple: all you need do is ask. When you do, in many cases you’ll find that you are not being detained, and so are not compelled even to speak with the officers.
“It’s consensual,” the officer replied to my query.
“In that case, I’m going to go about my business. So,” I said, giving a little wave to emphasize my point, “have a nice night.”
Consensual contact is just what it sounds like: you are consenting to have contact with the police. See, like it or not, there is nothing that prohibits the police from talking to you, even when they have no real cause to do so. But in such instances there is nothing that compels you to comply. Often the query comes in the form of, “Hey, can I talk to you for a second?” The answer you don’t want to give is “Yes,” because then you have just consented. Instead, ask them what they want to talk about. If it sounds worthy of conversation, have at it; if not, remember the phrase we just learned: Are you asking me for consensual contact, or are you detaining me?
Cops recognize the phraseology, and they recognize it as the kind of thing uttered by someone who both knows her rights and is exercising them. Put yourself in that category, and you’re a lot less likely to get messed with.
Why should you decline consensual contact during such fishing expeditions, even when you’ve got nothing to hide? In a word: privacy. If the only people who ever decline consensual contact are those involved in criminal activity, that will encourage some in government and law enforcement to broaden the concept of reasonable suspicion, perhaps to the point that declining consensual contact rises to the level of reasonable suspicion.
Keep in mind that privacy is one of the most hotly debated concepts in constitutional law. There are plenty of folks in government and in law who believe there is no right to privacy in the Constitution, at least beyond the Fourth Amendment provisions explicitly spelled out (e.g., our “right […] against unreasonable searches and seizures”). And because the word “privacy” does not occur in the Bill of Rights, interpretation is everything.
Puzzling over the encounter as I walked home (which is exactly where I was going), I realized why the officers had approached me. At Beachwood BBQ I had been writing. On my laptop. Which I carried home down Pine in my computer bag. Which I’ve never thought of as a “satchel,” but okay. I had dropped off the bag at home before heading back to Pine. Apparently the officers must had noticed me earlier, then gotten curious—in a post-Boston Marathon-bombing kind of way—when they had seen me sans “satchel.”
You thought this was going to be an anti-police story, didn’t you? Surely there are many of those to be told, but this isn’t one of them. The officers in question didn’t approach me randomly, and they respected my right to decline to talk to them. That is exactly the way it’s supposed to work.
The police are required to respect our rights, but not to exercise them for us. Know your rights is not just a song by The Clash: it’s a phrase to live by.