Legal Solidarity Bay Area

Police at the Door – Legal Self & Community Defense

LSBA Archives
Workshop conducted 08/04/2020

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Goals

  • Inform people of the law on searches.
  • Prepare people to exercise their constitutional rights to the fullest extent possible.
  • Get folks to make a rapid plan.
  • Fight repression through taking care of ourselves and our communities.

Flip the Script on Power

  • Ordinary confrontations with the criminal legal system are designed to be repressive.
  • Through principled collective action and a commitment to take care of each other, we can flip the script on power.
  • We can transform ordinary confrontations with the law into ones where we build power for our movements.

Agents at the Door: Outline

  1. How to Invoke Your Rights
  2. The Warrant Requirement
  3. Warrantless Searches
  4. Searches with Warrants
  5. Other Legal Processes
    • Arrest Warrants
    • Subpoenas
  6. Raid Plan

1. How to Invoke Your Rights: What’s Covered and What’s Not

This presentation covers rights and options when police are at the door. It is not a substitute for a full know your rights/ legal community and self defense workshop, where you learn and practice rights at protests and demonstrations, with police in pubic or when pulled over, or in other situations.

It is also not a substitute for an immigrant rights workshop. Everyone has the same constitutional rights regardless of citizenship status. The 4th and 5th Amendment apply to ICE or other immigration officials at the door in a law enforcement capacity, but the specifics of how to handle an ICE raid are not covered. See the links for popular legal education resources on broader topics.

When police are at your door, 4th, 5th, and 6th Amendment protection are essential.

4th Amendment

Protects your right to be free from unreasonable searches. If police ask or try to search you, your home, or any other private thing or place you can invoke your 4th Amendment right by saying:

I do not consent to a search.

5th Amendment

Protects your right to remain silent. If police try to question you, you can invoke your 5th Amendment right by saying:

“ I am going to remain silent, I want to speak to a lawyer”.

6th Amendment

If you are detained, arrested, or accused of crime you have right to speak to a lawyer before answering any questions. Repeat the phrases above until you are released, or allowed to speak to a lawyer.

2. The Warrant Requirement

The Fourth Amendment is generally strongest in a private residence.* Its protections apply in all kinds of settings, but how it applies may depend on where you are. A search warrant may be required anywhere you have a “reasonable expectation of privacy”.**

In addition to private homes, warrants are required to search:

  • Private businesses and commercial property*
  • After hours at businesses open to the public, and in private areas during business hours.
  • Rented hotel rooms***
  • College dorm rooms****

*New York V. Payton 445 U.S. 573 (1980); Kyllo V. United States 533 U.S. 27 (2001)
** Katz V. United States 389 U.S. 347 (1967)
***See V. City Of Seattle 387 U.S. 541 (1967)
***Stoner V. California, 376 U.S. 483, 490 (1964)
****People V. Superior Court (Walker) 143 Cal.App.4th 1183 (2006)

The Warrant Requirement In Public

The warrant requirement even applies to things you carry in public if you have a reasonable expectation of privacy in those things:

  • Bags and luggage
  • Your wallet, papers, and books
  • Your cell phone
  • While you are in public, police can stop you for brief questioning if they suspect you of a crime. During this detention they can pat search the outside of your clothing or bags if they think your are armed. Legally, they would need a warrant (or your consent) to look inside your pockets, bags, cell phone or other things with you. *
  • In practice, police are often coerce consent. (E.g. – “You are not hiding anything, are you? You don’t mind if I take a look?”). As a legal matter, they cannot require you to consent. It can be difficult to exercise these rights, roll plays and practicing can help.

*Terry V. Ohio 392 U.S. 1 (1968)

Where Warrants Are Not Required

The warrant requirement may NOT apply in some other common places:

  • Automobiles
  • Mobile homes that are readily movable
  • Student lockers (K-12)

Although the warrant requirement may not apply, other Fourth Amendment protections do. For example, to search a car on a public street (including containers inside it) police do not need a warrant, but they do need probable cause to believe evidence of a crime is in the compartment searched.* Mobile homes that can be moved are subject to the same automobile exception.** To search a school locker (K-12) school officials need a reason to think it contains evidence of a school rule violation or a crime.***

*Cal. v. Acevedo 500 U.S. 565 (1991); but, to search a vehicle parked on your private property a warrant would be requires. See, Collins
v. Virginia 584 U.S. _ (2018)
** California v. Carney, 471 U.S. 386 (1985)
***New Jersey v. T.L.O. 469 U.S. 325 (1985)

The Warrant Requirement – Exceptions – Consent

Police do not need a warrant if you waive your Fourth Amendment rights by consenting to a search.

  • Consent can be express or implied.
  • Consent can be anyone with “apparent authority”. **

Additional Issues:

  • Consent can be limited in scope (e.g. you cannot go upstairs, garage, etc.).
  • Consent can be withdrawn! You are legally allowed to change your mind and ask them to leave even if you previously gave them permission to enter.
  • If two people with authority disagree, police still have to get a warrant.***
  • A landlord cannot consent to a search of a tenant’s unit. ****

*SCHNECKLOTH V. BUSTAMONTE 412 U.S. 218 (1973)
** ILLINOIS V. RODRIGUEZ 497 U.S. 177 (1990)
*** GEORGIA V. RANDOLPH
****CHAPMAN V. UNITED STATES 365 U.S. 310 (1961)

The Warrant Requirement – Exceptions – Search Incident to Arrests

If there is a lawful arrest, police can search the immediate area where the person was arrested; called the “wingspan” or “grabbable area”- any place a person can conceivably get to hide evidence or grab a weapon.

For arrests that occur inside the home, that typically means the police can do a warrantless search of the room where the arrested occurred. However, police would need a warrant (or consent) to search other rooms or areas of the house.

See, Sec. V. on arrest.

The Warrant Requirement – Exceptions – Exigent Circumstances

Police do not need a warrant to enter your home in certain exigent circumstances:

  • Hot pursuit from the scene of a crime.
  • Immediate destruction of evidence.
  • Actual emergencies.

Any police presence in the home has to be related to the emergency. If the emergency conditions are gone when police arrive, they cannot lawfully enter without a warrant (or some other exception).

The Warrant Requirement – Exceptions – Plain View

If police are lawfully present in a particular area, and they see obvious contraband or evidence of a crime they can seize it without a warrant.

Two requirements*:

  • “Lawful presence” of police.
  • Seized item must have an “immediately incriminating character”.

Why not consent to a search if you have nothing to hide?

Why NOT to Consent

People sometimes think, “I have nothing to hide, so why not let police in?” However, there are lots of reasons not to consent to a search even if you have nothing to hide:

  • Once inside, police can and often do expand their search beyond what you originally expected.
  • Police are legally allowed to lie to you. They may be conducting an investigation that has nothing to do with their stated reason for the visit.
  • Once inside police can seize things in plain view they reasonably think is evidence of crime. It does not have to be an item that is illegal to possess and it does not have to be related to the original reason for their visit.
  • How many of us have an inventory of all the things inside out homes? Depending on the circumstance of the investigation, sometimes ordinary objects may be incriminating. Also, somebody may have put something in your home without your knowledge.
  • You have a right to privacy and not to be bothered by police. We risk losing this right if we do not exercise it.
  • Solidarity! When we invoke our rights, we make it easier for other people to also exercise their rights. It is contagious, and reminds police that they do not have unfettered authority.

Homelessness and the Fourth Amendment

Our society discriminates against people in poverty and people without homes. However, the Fourth Amendment in theory “protects people not places”. Many of its protections apply in the context of homelessness, even if police often violate the rights of people who are homelessness.

Police can search and seize “abandoned” property, but just because you left something unattended does not automatically mean it was abandoned.* Items you intend to return to are not abandoned, neither are things that you have accidentally dropped or lost.

*Katz at 351. 24
**California V. Greenwood 486 U.S. 35 (1988)

Tents and Other Shelters

The Fourth Amendment law on tents and makeshift shelters is unsettled. Some states have held that the Fourth Amendment warrant requirement applies to makeshift shelters or to personal items stored inside.*

In California, federal and state precedents have split on the question. In Zimmerman v. Bishop Estates** the court held a squatter in a residential home did not have an objectively reasonable expectation of privacy. However in U.S. v. Sandoval* the 9th circuit found a legitimate expectation of privacy in a tent on public land. A California appellate court held the Fourth Amendment may protect a person’s objectively reasonable expectation of privacy in a temporary or impermanent residence, but that rule did not apply to a cardboard box illegally placed on a public sidewalk.*

Kelley V. State 146 GA. APP. 179 (1978) (Tent dwellers have a reasonable expectation including in the are immediately around the tent) ; State V. Dias 62 HAW 52 (1980) (Police need a warrant to search a squatters shack on public beach). State v. Mooney (Police could search a makeshift shelter under needed a warrant to search a duffel bag and sealed box inside the shelter); State v. Wyatt , 187 Wash. App. 1004, (invalidating a warrantless search of closed containers left outside a tent in a public park).

** Zimmerman, 25 F3D 784(1994); ***Sandoval, 200 F3D 659 (2000) **** People V. Thomas 38 Cal. App. 4th 1331 (1993).

Emergency Shelters

The Fourth Amendment law on shelters, halfway houses, transitional
housing is also unsettled. Facilities may vary widely in physical structure, clientele, staff, rules and regulations, privacy and search
policies. Whether a warrant is required for searches may depend on:

  • Shelter policy (Some may require you to consent to searches)
  • Architecture and layout (E.g. single room versus congregate
  • bunks)
  • Length of stay or tenancy

Even if a warrant doesn’t apply to sleeping areas, it may still apply to
your private bags, lockers, or other containers. When in doubt assume
a warrant is required.

When In Doubt, Assume the Fourth Amendment Protects You

If police ask to search, assume that the Fourth Amendment warrant requirement applies in any place serving as your home or other private place.

Do not consent to any warrantless searches or to any searches with warrants that may be invalid. It may not stop the search, but it may help you later if a court finds that you had a reasonable expectation of privacy in that area.

3. Warrantless Searches

The General Rule:

  • Warrantless searches of a home are unconstitutional. (4th Amendment)
  • This rule applies any place you have a reasonable expectation of privacy.

If police ask or try to search you, your home, or any other private thing or place you can exercise your 4th Amendment right by saying:

“I do not consent to a search”.

If police start questioning, you can exercise your Fifth Amendment right by saying:

“ I am going to remain silent, I want to speak to a lawyer”.

Tips for Dealing With Searches Without Warrants

  • Stay calm. It may be stressful, but panic is the worst response.
  • Be prepared. (See Sec. VI – “Raid Plan”).
  • If possible, contact a lawyer immediately.
  • Consider, not answering the door. You are under no legal obligation to speak with the police.
  • If you do answer, if possible, speak through the door or any other barrier like a locked screen.
  • Ask if they have a warrant.
  • Exercise your Fourth and Fifth Amendment rights. (See Sec. I)
    • I do not consent to a search
    • I am going to remain silent, I want to speak to a lawyer.
  • Ask for their identity or card.
  • If possible, document police presence and behavior.

After They Leave:

  • Document what happened, preserve any evidence or witness names, and make an inventory of everything taken.
  • Keep any paperwork that they left.
  • Write or record your notes in a letter or message to a lawyer and keep them somewhere safe.
  • Contact a lawyer:
    • NLG SF Bay Area Stop FBI Hotline (415)285-1041

Consent and Parole/Probation Searches

By law, people on parole have consented to searches of themselves, their houses, and their vehicles.

Typically, people on supervised probation sign search waivers as part of their release conditions. Sometimes, this also applies to unsupervised probation.

  • If you are on parole, police may not need a warrant to search your home.
  • If you are on probation and you do not know the conditions, contact the defense lawyer from the probation case and/ or the court and ask to see the conditions of your probation.
  • Be aware that a search waiver can affect other people in your household.
  • If eligible, ask the court to modify or terminate your probation. (Cal. Penal Code 1203.3)

Although parole or probation is obviously better than prison or jail, they are also a part of systemic racism. Communities that are over-policed have more contacts with law enforcement, which inevitably leads to more people on probation and parole. Search waivers often lead to violations or new cases.

People have significantly less rights in probation and parole violation hearings than they do in a normal trial. It is easier for the government commit someone to jail or prison in these hearings.

Defense attorneys used to routinely advise clients to sign search waiver clauses to get them on probation. Fortunately, Black Lives Matter and current social movements have educated lawyers about the need to object to overbroad or unnecessary search conditions.

If you are on probation ask the court to modify or terminate as soon as you are eligible. (Cal. Penal Code 1203.3)

4. Searches With Warrants

If police come to the door with a warrant:

  • Speak through the door if possible
  • Ask to see the warrant.
  • Inspect warrant
  • If it’s a defective warrant, or you have any reason to think that it is… Do not consent to the search.

If police have a warrant they will most likely enter and search regardless of whether you consent. However, for the record you want to state that you do not consent in case the warrant was defective.

To be valid, a warrant must have these elements:

  • Must state particular place to be searched
  • Must state particular things to be seized
  • Must be signed by a neutral magistrate
  • Can’t be stale- (typically ten days)
  • Must be supported by probable cause that evidence of a crime is in the place to be searched*
  • Police must knock and announce their presence when executing the warrant

When applying for a warrant, an officer must include a sworn statement of probable cause. However, that statement is usually sealed by the court and is not served with the warrant.

Other Issues

  • Time of service: the typical warrant must be served during “Daylight Hours” (6 a.m. to 10 p.m.) unless authorized for night service.
  • Sneak and Peak/ No Knock Warrants: Usually, police must announce their presence and provide notice when executing a search. In special cases, they can get a warrant to enter without notice. If police can show it will be dangerous or lead to destruction of evidence, then court may approve delayed notification of the search. (Cell phone and social media search warrants are typically “sneak and peak”).
  • Sequestering: During the search, if you are not being detained, you should be allowed to leave, but you will not be able to return until the search is done. People who stay are typically isolated by police in one part of the home during the search (e.g. ordered to stay on the couch). If police feel there is a low threat level, they may loosen the sequester as the search goes on.
  • Limiting the Scope: Sometimes a lawyer can help you advocate to the limit the search. If possible contact a lawyer as soon as you can.

Tips for Dealing with Search Warrants

  • Stay calm. It may be stressful, but panic is the worst response.
  • Be prepared. (See Section VI – “Raid Plan”).
  • If possible, contact a lawyer immediately.
  • If possible, remove everything private from plain view.
  • Close all doors and separate units.
  • Ask to see and inspect the warrant.
  • Exercise your Fourth and Fifth Amendment rights to the fullest. (See, Sec. I).
    • I do not consent to a search.
    • I am going to remain silent, I want to speak to a lawyer.
  • Decide if anyone will stay during the search. People who stay may be subject to search and will be sequestered while the search is conducted. People who leave will usually not be allowed to return until the search is over.
  • If possible, document police presence and behavior during the search. But be aware police may seize the recording device as part of their search.
  • Ask for their identity or card.

After They Leave:

  • Document what happened, preserve any evidence, witness names, and make an independent inventory in addition to the police return/inventory.
  • Keep any paperwork that they left.
  • Write or record your notes in a letter or message to a lawyer and keep it somewhere safe.
  • Contact a lawyer
    • Legal Solidarity Bay Area (510) 250-1700
    • NLG SF Bay Area Stop FBI Hotline (415)285-1041

5. Other Legal Process

Arrest Warrants (Do not authorize general search)

  • Ask to see the warrant.
  • If the person plans to surrender, if possible, do that outside.
  • A valid arrest warrant authorizes the police to enter for limited purpose of apprehending the named person if they have “reasonable suspicion” the person is there.
  • It does not authorize police to conduct a general search of the home. If the person does not come to the door, they may enter and look in conceivable hiding places.
  • While searching, police may seize anything “immediately incriminating” they find in plain view. (See, Sec. II).
  • If the arrest occurs inside, the police may, and likely will, search the room where the arrest occurred without a warrant. (See, Sec. II).
  • During the incident, as with any arrest, it is absolutely essential to exercise your Fourth and Fifth Amendment rights to the fullest.
  • The arrestee, witnesses, and anyone else present, have a constitutional right not to answer police questions. (See, Sec. I).

Subpoenas

Police occasionally serve subpoenas. These subpoenas do not authorize any entry into the home, and police cannot come in unless you consent or another exception applies:

  • Subpoenas are not search warrants.
  • You do not have to let them in.
  • See, Sec. III Warrantless Searches.

6. Raid Plan

A raid is not a legal term of art. In this presentation, it means a sudden or unexpected presence of police demanding entry to search or make an arrest.

Any raid is a fact specific situation and the best responses depend on particular circumstances such as:

  • The nature of the investigation
  • The layout of the space
  • The police presence (a search by one or two officers will be different than a search by a large well equipped team of officers).
  • It may also depend on a variety of other factors like who is present and any legal issues they may have.

Other than exercising your rights to the fullest, there is no one-size-fits-all plan for every household, but the information above and the steps below may help craft a plan for your particular home or other private places.

Make a plan, the same way you might plan for a fire or other emergency. Do a walk through and imagine how things might look to police conducting a search.

When the Police Knock On Your Door – Door Hanger

Before Police Arrive

  • Know your rights and be prepared to invoke them.
  • Talk with your household members about concerns and issues people may have about any potential raid.
  • Have a list of essential people to notify in the event of a raid: lawyers, housemates, observers, press, or other people who need to know or may be helpful in the situation.
  • Be aware it is common for police to secretly surveil a home before, during, and after a raid. If your household is raided, assume that police may have been watching the premises in the hours and days before and may continue in the hours and days afterward.
  • Contact a lawyer as soon as possible.

Exercise good privacy practices and keep your space clean in the legal sense:

  • Dispose of things you don’t need- but remember you may be under surveillance. Police may find what you throw out, and they do not need a warrant to go through trash put out for collection or other items you abandon.
  • Don’t leave private items in plain view.
  • Encrypt electronic devices
  • Put a handy poster inside the door as a reminder of your rights.

If You Have Notice of an Impending Raid

  • Contact a lawyer.
  • Secure the premises.
    • Close all doors.
    • Clearly mark any sub-divisions or separate units and lock them.
    • Be prepared to assert your rights at every possible sub-division or place that may not be covered by the warrant.
  • Decide if anyone will stay during the raid. People who stay may be subject to search and will be sequestered while the search is conducted. People who leave will not be allowed to return until the search is over.
  • If necessary, contact essential people- but remember you may be under surveillance. Police may discover who you are contacting.

Observers and Media

Observers, witnesses, and/or media can be helpful in some situations. For example if police are conducting a baseless, politically motivated raid, witnesses and publicity may be useful for your household and good for the community to be aware of.

However think before publicizing an incident and consider privacy concerns. If the police are investigating potentially serious crimes, to which a member of your household may have some exposure, publicity may be harmful.

Publicity may also be embarrassing and /or have unintended consequences like family, landlords, employers, or others finding out about the raid.

When Police Are At the Door

If you need to talk with them, if possible, speak through the door without opening it. Ask to see a warrant:

  • If they do not have a warrant- See, tips in Sec. III
  • If they have a search warrant- See, tips in Sec. IV
  • If they have an arrest warrant- See, tips Sec. V
  • If they have a subpoena- it is the same as having no warrant- See, tips in Sec. III

After the Raid

  • Keep any paperwork left by police: warrant, return/inventory, etc.
  • Thoroughly document the incident and make an independent inventory of everything taken. Write or record your notes in a letter or message to a lawyer and keep them somewhere safe.
  • Contact a lawyer.
  • Contact other essential people- but remember you may be under surveillance. Police may discover who you are contacting.
  • Consider press or other publicity if appropriate.

Solidarity and Community

Finally, consider solidarity and community.

Repression and political policing seek to divide us. They may use shame and alienation to silence us or get us to turn on one another. Through principled collective action and a commitment to take care of each other, we can flip the script on power.

If police have visited your home in a politically motivated attack on the community, letting people know about these operations can help keep us all safe. However, there are legal risks to consider in speaking about the incident. Talk to a lawyer to help you understand possible legal consequences. Sharing your story through a safe third party and/or anonymously may reduce some of the risks. Defend yourself by exercising your rights with law enforcement. Defend the community by staying in solidarity!

Police have state power on their side, we have our hearts and our commitment to each other.

Disclaimer: This document provides legal information not legal advice. It focuses on federal and California constitutional law on these issues. For answers to specific legal problems, issues or questions, obtain the advice of a qualified attorney in your area.