Chicago is a beautiful city and is home to some of the greatest summer music festivals. If you plan on attending a festival this summer, please read the guide below carefully before attending:
In any encounter with the police, the judge will be looking after the fact at whether the police had a right to stop you in the first place. This is because the Fourth Amendment of the Constitution gives you the right as a citizen to freely go about your business unless the police can show they had a belief you were engaged in criminal activity.
What the police have to show to a Judge later depends completely on whether the Judge finds that you were being “arrested”, “detained” or were “free to leave”.
If the police arrest you, they have to show they had “Probable Cause” to believe you were committing a crime.
On the other hand, the police will probably argue that they weren’t arresting you but just “detaining” you. A “detention” is a situation where the police stop you briefly while they investigate a crime but haven’t arrested you yet. In a detention, the police have a much lower burden of proof. They only have to show a “reasonable suspicion” as to why they were detaining you. Or the police may argue that their entire contact with you was just a “consensual encounter” where you were free to go at anytime. In a consensual encounter, they don’t really need to justify why they stopped you because they were just talking to you and you were “free to leave.”
Taking what we know from above, what should you say to an officer if you are stopped?
The first question you should ask is, “Am I being detained?” follow by, “Why? What am being stopped for? Am I free to go, or am I under arrest?” Memorize this.
The officer may not appreciate your sharpness so your job in this situation is to keep calm and cool. Be respectful but clear and firm in what you are saying. It is completely reasonable (and legal) to ask why you are being stopped and whether you are free to go. By asking from the start if you are under arrest or free to leave you are forcing the officer to tell you exactly what is happening and whether you are a suspect.
One of the most common urban myths out there is that the police have to read you your Miranda rights or the arrest gets thrown out of court.
Not true. The police don’t have to read you these rights. In fact, the police have the right to completely lie to you in any interview. The only time they have to read Miranda rights is if:
The Right against Self Incrimination is in the Bill of Rights for a reason. USE IT. You should NEVER give a statement to the police without a lawyer. Period. No exceptions.
In the above scenario, questions like “whose backpack is this?” should be answered with a firm, “Officer, I am choosing to remain silent. I want a lawyer.”
One other major Constitutional right you have under the Fourth Amendment is the right to be free from an unlawful search of your person and property.
As an example, say you are already in a festival when the police approach you. They will not let you leave and ask for permission to search your backpack. (Obviously, security has a right to search you as you enter a festival and go through their initial security screening.)
Police officers always make it seem like you are a criminal if you express the slightest hesitation about having your property searched without a warrant. You can expect to hear an “If you have nothing to hide, why can’t we search your stuff?” type of response from the officers.
Know this…If the police are asking you permission to search you or your property, it usually means they know they are making an illegal search. Let that sink in for a second. When the police ask you “Can I search this bag?”, they KNOW they are asking you to let them make a search they are not legally entitled to make.
What are you supposed to do? Respectfully tell the police officer, “I’m not giving you consent to search my property.” If they ask what you have to hide, don’t argue with them. Simply say again, “Officer, I’m sorry I’m not giving you consent to search my person or my property. If I’m free to leave I’d like to leave. If not, I’d like a lawyer.”
At this point, they can still search you if they have probable cause, but what you have done with your statements is make them declare their reason for doing so and force them to show they are legally entitled to search you.
If you end up getting arrested at the festival, do not worry, but it may be time to get an attorney. An attorney can effectively navigate through the facts of your case in an attempt to get your case thrown out, or to get a favorable deal negotiated. Call our office at (773) 234-4974. Attorney Chris Brockman is always willing to give you an assessment of your case at no charge.