Under the 5th Amendment of the United States Constitution a person never has to speak with a law enforcement officer and implicit in this right is the right to counsel BEFORE and during questioning if they do so choose to speak with them. That right starts as soon as one becomes aware there is a criminal investigation against them.
For instance, I’m often contacted to advise and accompany a person to a police questioning. The case is in the investigation stage and the person isn’t detained, yet they have a right to counsel. There is little to no difference in a traffic stop. Though an attorney has not right to interfere with an investigation, speaking with a detained client, who asks for me, can never be interfering. The driver’s only duty upon a traffic stop is to give license, registration, and proof of insurance, which doesn’t require speaking.
On July 20, 2017 a car with four young Black men was stopped in an alley that I happened to be driving through. After establishing the Attorney-Client relationship, and my client invoking his right to counsel, he tried to tell me what was going on. The officer’s prevented my client, who was sitting in the car not speaking with either cop, from exercising his right to counsel by preventing me from further speaking with him claiming I was interfering with the investigation.
Here, my client was subjected to a traffic stop for cellphone use, an infraction. Once my client pulled over and turned over his identifying information, the investigation, as far as my client’s required participation (turning over his information) is over and he doesn’t have to say anymore or provide any more information to the police. The client is now free to obtain the advice of counsel.
My client was not on probation or parole and had no warrants, yet his 4th Amendment rights were violated when he was put in handcuffs with no legal justification. Any claim of officer safety fails in the face of the 8 cops that were present before the cuffs were put on. The case Terry v Ohio allows for a brief detention for “the protection of the police officers… and it must, therefore, be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Terry v Ohio) As such, the Officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. Without those facts, even a Pat down was illegal. Though a pat down will almost always be justified once a legal police encounter is established, the police do not have a right to stop and frisk whomever they please.
If the Pat down was legal, it produced no weapons or any other probable cause for a search, furthering the unlawfulness of the handcuffing. With no facts present the cop could articulate to justify a pat down, the logical conclusion regarding the handcuffing is that it was simply a badge of slavery, letting those young men know they are only as free as the officer’s allow.
The search of the car is a point of contention as one of the occupants was on probation with search conditions. The case of People v Schmitz says an officer can search anywhere a parolee may have discarded contraband, which includes the entire passenger area of a car. But, it also states the search can’t be arbitrary or to harass. What the officer’s did to these young men was harassment because it takes less than 5 minutes to write a ticket for being on your phone and this encounter was at least 30 minutes. It takes one cop to write a ticket, yet they brought out 8 cops. No weapons or other contraband was discovered, yet all occupants in the car were taken out and handcuffed. That is harassment!
The unlawful prolongation of a traffic stop is also a wrong committed by the officers in this situation. People v McGaughran holds, “when a police officer prolonged a valid traffic detention beyond the point when such duties as were reasonably necessary to complete the issuance of a traffic citation had been performed, the detention then became illegal.” As such, the prolongation of the stop was illegal.
These violations compelled me to stay with my client, advocating for him, despite being threatened with arrest for Penal Code Section 148(a)(1) by the officers. Though the officers told me I couldn’t interfere with their investigation, (it was never made clear what they were investigating at that point), none could explain how an attorney speaking with their client who has invoked his right to counsel, was interfering with the investigation. Attorneys are part of the investigation if our clients choose to bring us in. The investigation of my client was complete when the car stopped and my client gave his information. After that, all that was left was for the officer to issue the citation. There was no justification to go any further.
This was excessive force, which is a norm in law enforcement relations with the Black community, but not acceptable. People are routinely made to get out of their vehicle at gun point, and subjected to unlawful searches and detentions. Even when warrants are executed in Black communities, officers often tear up the homes, which the taxpayer ultimately pays for if the homeowner files a claim against the city or county. It’s time for the norm to change. We must learn to verbalize our displeasure with officer’s actions and demand justification for their actions. We must also file reports of the action taken. It can change but everyone needs to be on board.
It’s deeper than just our civil rights. The way my client’s rights were violated stems from the mindset established about Black people at the inception of this Nation. We are still subject to “strict police regulations.” Anyone who accepts this treatment accepts Black people’s as 2nd Class Citizens. In honor of our Ancestors, both Black, White and other who fought for the liberation and freedom of Black people in this land, we must fight to rid our society of all Badges and Incidents of slavery, the most heinous crime against humanity ever. It’s a stain on our Nation’s history that must be wiped away, though never forgotten.
I’ve been told my place to fight is in the court, not on the street. But you walk around with your rights and take them with you wherever you go unless you agree to give them up for a limited purpose such as visiting a loved one in prison. Other than that, you have your rights everywhere and attorneys like myself will defend your rights anywhere they are violated.
