Know Your Rights: Do You Have to Talk to Cops?

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3:05Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. This episode is part of a summer bonus series that we are calling Know Your Rights. As I explained on the very first Know Your Rights bonus, we wanted people to be more informed about what their rights are to help them claim the Constitution, but also to help people be safe during upcoming protests and election season. And this time, the right or rights we're going to be discussing is the right not to answer questions asked by law enforcement. And to help us go through this important question is my NYU colleague, Daniel Harawa.

3:40Daniel is a professor of law and the director of the Federal Appellate Clinic at NYU, where his work focuses on race and the criminal legal system. So welcome to the show, Daniel. I am so happy to be here. Thank you for having me. Of course. So maybe we can just start with the basics. And that is, if a police officer approaches me on the street, do I have to stop? So the answer is no, right? If the police officer approaches you, you haven't done anything wrong, you are totally free to walk away, go about your business, and hopefully the police officer will leave you alone. Now, whether or not they will, that's a different question.

4:17But yes, you can walk away. I'm sorry. Wait, can I walk away? Can a melanated person walk away? So I guess there are your rights in theory and your rights in practice, right? And so I guess one thing that's important for this entire conversation to understand is that there are your rights on paper. And then that doesn't necessarily mean that's the wisest thing for you to do when encountering the police on the street. And so everything, this whole conversation should be understood in that light. And so, you know, if a police officer walks up to you and asks to talk to you, you can say no. You can politely ask, am I free to leave?

4:52Can I walk away? And the officer should give you an answer. But the safer course is probably acknowledging them and then walking away as opposed to just ignoring them outright. All right. Are there any instances where a law enforcement officer could tell me stop and I could just keep walking without getting arrested? Do I have to be pretty sure that I have not done anything wrong and like have witnesses around to make sure that that is exactly the case? If you are told to stop, you should probably stop because you don't have a good sense of why they're telling you to stop. Right. So you may have ash to cigarette, for example, even though you're not a smoker.

5:27and that could be littering in some states and an officer could stop you for that reason. So you just don't know the basis for the command to stop. But once you do stop, you are seized under the Fourth Amendment and there are a whole bunch of, there's a legal standard that applies there and so there are protections that apply. And you should ask why you're being stopped, but I think the safest course is always to stop if you're being told to stop. So you mentioned that there are certain legal protections that kick in if you have indeed been seized under the Fourth Amendment. And so I think that invites this question of how is one to know if they are just being detained and seized or if the officer is merely talking to them in a consensual encounter?

6:14That is, how do you know if you've been seized within the Fourth Amendment, meaning such that those additional protections apply? Yes. So I think the safest course and probably the course everybody should adopt is just asking whether you are seized when your police officer starts to talk to you. And that way, the officer will respond with either a reason for you being seized, I stopped you because of X, or say, no, I'm just here to chat. And if you're just there to chat, then you can stop the conversation and tell them you don't want to continue and walk away. And so I think the safest course is asking.

6:47But there are other signals or indicia of a seizure that can come up where, for example, if the officer has their hand on their gun or their handcuffs out or speaks in a threatening way. So there are all of these ways that officers can seize you without telling you, I am stopping you for X reason. And so the tenor of the encounter really matters. There's no mathematical formula you can assign to it to show this rose to a seizure because he did X, Y, and Z. But if you feel like the tenor of the encounter is such that you can't leave, then there are things beyond words that can lead to one being seized.

7:21So is that question of feeling like you are not free to leave, like do courts consider that in sort of a circumstantial or contextual situation? Like, is it different for Leah to feel that she cannot leave versus me feeling that I cannot leave? I would say yes. Some courts might say yes, too, but not all courts. So this is all about what's called the reasonable person standard under the Fourth Amendment. And so the courts ask whether a reasonable person in this position would have felt free to end the encounter and go about their business. Now, of course, Melissa, as a Black woman, you may feel differently when approached by police than Leah might when she is approached by police.

7:57And some courts might take that into account. Not all courts, a small minority of courts actually have said we can factor race into this analysis. But it is a reasonable person contextualized in that encounter, whether they would feel free to leave. And so if you have particular sensitivities for whatever reason, the law doesn't account for that. But hopefully the law begins to account for race more and more. And I know there are advocates pushing for that. And so because, I mean, that's the world we live in where race does matter to police encounters. And so why shouldn't it matter for the law, too?

8:27Would it matter if I were in a particular place? So if I were in a closed space, for example, where it didn't seem like there were obvious avenues for egress, or if I was at my workplace, for example, would that be a situation where I might not feel free to leave and a court would recognize it? Well, whether a court would recognize it is a complicated question. So I think taking a step back, the way the doctrine has evolved just doesn't actually take into account how most reasonable people would experience a police encounter, right? So let's say you're on the back of a bus, the doors are closed and police officers approach you.

9:03You literally cannot get up and walk past the police officers without shoving them. But a court said, well, that's not a seizure under the Fourth Amendment. And so the law has just evolved in a way that doesn't actually account for, I think, how most people would experience police. But if police are blocking you in, for example, if they have like cornered you in some way, if they're surrounding you, then that all should matter for a police encounter, whether or not a reasonable person would feel free to leave. It's just that what is reasonable has gotten so far from what I think the reasonable person experiences that it may not be what you or I would intuit when thinking about what is reasonable.

9:42Yeah. I mean, you mentioned, you know, the facts of United States versus Drayton. You know, that's the case where the armed police boarded a bus, you know, stood in the aisle, questioned passengers, and the Supreme Court said, oh, reasonable people, they would feel free to leave. You know, there's also, Melissa mentioned, the workplace, you know, INS versus Delgado, where armed immigration agents surround a factory and station guards at the exits while other agents are walking the floor. And the Supreme Court is like, oh, that was a consensual encounter. Right. That wasn't a seizure. You reasonably would have felt free to leave.

10:13And so I think that kind of gives a sense about, like, how high the bar is. Yeah. And I think part of the problem, Leah, is that the reasonable person standard comes from a court that just will never be approached by police in this way. Right. And so they just have they have no reason to craft a standard that would capture the average experience of the person who is most likely to be stopped or questioned by police. And so the doctrine, like you said, it's such a high standard because the court doesn't care or can't identify with the average person who has to worry about police presence in their day to day life.

10:47Yeah, I mean, this sounds like the comment that Justice Sotomayor made, you know, in talking about the court's decision in Noam versus Vasquez Perdomo saying, look, I have some colleagues who just don't know what it's like to be a day laborer and potentially to be stopped and questioned, you know, on the basis of your job or color of your skin, etc. So I don't know if we should take this opportunity now to apologize to Brett Kavanaugh again for observing this. But, you know, it wasn't very collegial. Did want to draw that connection. Oh, okay. Yeah. Since we've been alluding to this or not alluding to, like, talking about the distinction between a seizure and a consensual encounter, you know, and you said additional legal protections kick in when you've been seized, I guess, can we kind of make it explicit or, like, why does it matter whether there has been a seizure or, like, what are the additional protections that kick in?

11:38Sure. So if police question you or you have a conversation with police during a consensual encounter, you have your Fourth Amendment rights having kicked in in any kind of way because you're volunteering, you're acquiescing to the police encounter. Once you have been seized, then a police officer has to have a certain level of suspicion to stop you. Right. So they have to have reasonable suspicion that you committed some type of crime to engage in that encounter. And if they don't have that reasonable suspicion, and let's say they have some kind of evidence that they get from you and try to use it in court, then it's suppressed and they can't use it in a criminal case.

12:11Or if you find an enterprising lawyer who is willing to bring a civil case against that police officer, which there are all kinds of hurdles and expenses, which makes it really hard to sue for the run of the mill police encounter that may violate the Fourth Amendment. But it does and it can lead to legal consequences. And so it's really important to understand and to ask the question, am I seized? Can I leave? That way, at least you have a sense of whether your rights have been violated such that there is legal recourse on the back end. Can I ask a question? Again, this is I'm just thinking like in the moment, you're not really thinking clearly.

12:46What if you decide to run from the police like you haven't done anything wrong? You flee from the police. How does fleeing complicate things and make it harder for you? Please don't run. Walk and walk quickly. But running isn't great because, yeah, like a brisk walk, power walk. Because the Supreme Court said in a case called Illinois v. Wardlow that unprovoked flight in a high crime neighborhood can give rise to reasonable suspicion. Now, what is unprovoked flight? I mean, I think it's reasonable for a lot of people to see police and not want to encounter them. So it seems pretty provoked to me by their presence, but that's not what the court said.

13:24What is a high crime neighborhood? A black or a brown one, probably. But if you run from police and it's seen as unprovoked and in certain neighborhoods, that can give rise to reasonable suspicion. So if you want to avoid the police by getting away, I just suggest walking at a quick clip as opposed to outright running. So in law school, I remember a case called California versus Hodari D. And I think it kind of exemplifies the complexity of this whole question of what is a seizure, what is a consensual search, and then this overlay of, you know, what does it mean to leave the scene because you don't believe you are in a situation where you have to stay?

14:03Yeah, so right. So if an officer tells you to stop and you don't stop, then you haven't acquiesced to the seizure. So you haven't been seized. And so it creates this really perverse world that if police approach you, like the safest course is just to stop and kind of hope they don't have the requisite cause and then try to fight it out on the back end, which isn't a way to live in a society where you have affirmative rights. Like, right, like you don't wait till your rights are violated to then figure out how to get recourse for the violation. But the court has created this world where for the average person who encounters a police, that is the safest way to engage in the encounter.

14:39Can we talk about some magic words that people can use in these circumstances? So setting aside the cases where someone tries to flee and transforms what might be an ordinary situation into a situation where they are now in the world where the Fourth Amendment doesn't apply. If you say, am I free to leave? What does that unlock? How does that change the nature of the interaction between you and the officer and clarify the nature of it for purposes of the Fourth Amendment? Well, hopefully you get a straight answer. Which you might not, right? Like a police officer does not have to answer your questions.

15:14And so while good practice might be, am I free to leave? And the officer would tell you yes or no. The officer can avoid answering the question clearly such that you still might not have a good sense of whether or not you are free to leave. Now, if an officer says, no, you cannot, then at that point, you know you have been seized, right? And at that point, the legal protections kick in, the officer needs a certain level of suspicion, and so your Fourth Amendment rights have been triggered. If the officer says you're free to go, then hopefully, and again, I understand this is complicated for, especially for people of color in country police, that empowers you to then say, okay, then I'm exercising my right to walk away.

15:51understanding that in the real world, that could be a really dangerous decision, depending on the encounter that you face. Yeah. So you mentioned that when you are seized, like one additional right that kind of kicks in is the officers have to show that they have a sufficient basis to stop or seize you, right? That they have the requisite reasonable suspicion. Can we talk about maybe some other rights that also kick in once you've been stopped or seized or how other rights kind of interact with that. So you mentioned, for example, when it's just a consensual encounter, you don't have to answer questions that the police ask you.

16:31Now, let's say you have actually been seized, right? The officer has stopped you. They make it clear that you're not actually free to leave. Do you have to answer questions at that point? And do you have to consent to a search, you know, of your person or anything that you have on you? Yeah. So taking a step back, I think it's really important to note that even if you're in a consensual encounter, you can end that or you're supposed to be able to end that encounter at any time, right? And so if you start talking to police and you no longer wish to engage, you can stop that encounter when you wish and walk away.

17:08Now, let's say you have been seized, you generally speaking don't have to answer any questions. And the best course, assuming you don't want to answer questions, just say, I am not going to answer any questions. I'm invoking my right to stay silent. And a police officer can only frisk you if they have reason to believe that you are armed and dangerous. And so just because you've been stopped doesn't necessarily mean you can be frisked. A frisk is a very intrusive pat down, but it's not the same as a full-blown search. And so I think it's important to kind of disentangle what happens during a stop, right?

17:44A stop and questioning, you don't have to engage. A frisk requires something else entirely. And so police officers shouldn't be searching you unless they have the requisite suspicion for that. And that's another point in the encounter that you can challenge on the back end as violating your Fourth Amendment rights. Okay. So does someone who's been stopped have to share personal details like their name, where they live? How do states with stop and identify laws change the equation for how you interact with the police during one of these detentions or stops? Yeah. So some states, not all states, have stop and identify laws, which means if an officer lawfully stops you and asks for your name, you have to give them your name.

18:30You're identifying information or else that is a crime under that state's law. It's important to note that not all states have those laws. And so if you're in a state that doesn't have those laws, you don't even have to give the officer your name. It's also important to note that not all laws are the same. So to the extent you have one of those laws in your state, you want to have a sense of what is required of you under the law. It's an open question about how much information you have to give an officer. The only kind of clearance right now is your name, assuming that's what the law says. But whether you have to give more than that is unclear under the law.

19:04But you shouldn't do more than what the law requires of you, right? And so that requires you, unfortunately, it's a state-by-state basis, so that requires you having an understanding of what your individual state law is in that particular scenario. So suppose you were in one of those consensual encounters, you know, a circumstance where you haven't been stopped or seized, where you would say, I recently felt free to leave. And you, as you noted, you know, you can do, decide to end the consensual encounter and walk away. You know, you said, am I free to leave? The officer says yes. you say, okay, I'm going to be on my way and you start walking.

19:41Can an officer just follow you? And if they do, like at what point would that become perhaps a formal stop or seizure? Yes. So if you're in a public street, an officer can follow you and might follow you, right? And so I guess at some point they can follow you for such a long time that you may functionally feel like you aren't free to leave and it may give rise to a seizure, but they'd probably have to follow you for a pretty long time in order for it to give rise to a seizure. And so if an officer starts to follow you, you probably want to obviously stay in a public place. Maybe you go into a public store or church or what have you just to try and get off of the street.

20:21But so long as you're in a public space, an officer isn't required to walk away or can kind of follow you in that public space, at least for a certain amount of time before it will give rise to a seizure. So you've already alluded to this a little bit, Daniel, but I want to invite you to say a bit more about what you've identified as a gap between how the law would determine what a reasonable person would do in certain circumstances and how people perceive their situations on the ground. Can you talk more about this gap and how it plays out in either escalating situations unnecessarily or maybe chilling the exercise of certain rights that people may have?

21:02Yeah, yeah. I always struggle with know your rights conversations because exercising your rights isn't always or maybe even usually the safest course of action for some people, especially black and brown people in the country. And so the fact that you have these rights, I mean, I want you to be alive tomorrow to exercise them again or to try to vindicate them once they've been violated. And so it's a really complicated conversation about when to exercise your rights or when you feel safe to exercise your rights. and the rights as they exist now don't fully capture most people's experiences with police to begin with, right?

21:41So we're in this world where the rights don't match what you or I might think of as a seizure when we're interacting with police. And then even if they did, we still might not feel comfortable exercising our rights based on the consequences that might flow from that. And so it's unfortunate that kind of compliance is often the best and safest course, despite the rights we all have under the Constitution. But that's a reality that I think is important to acknowledge, even as I think it's equally important that we all have an understanding of the rights that we do possess, such that if they are violated, we can hopefully do something about it.

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