BLOG: Know Your Rights!

I had the most astonishing conversation with a client yesterday. I am a criminal defense attorney and resident of San Juan Capistrano. I had a client meet me at the Starbucks across from the Mission last week rather than meeting at my office because he was on his way from San Diego to L.A. We finished our meeting at 5:00 so rather than sit in rush hour traffic he decided to enjoy our lovely town.

He told me that while relaxing on the grass in our Historic Town Center Park, my 72-year-old client who has several advanced degrees was approached by local police. They asked him what he was doing. He said he was just relaxing a while. They proceeded to ask him if he was on probation or parole. My client has been charged with a crime but is not on probation or parole. However, he stopped for second to decide how to answer this question. The officer then said, "You hesitated. Why?" My client told him that he had been charged with a crime.  The officer then proceeded to have my client stand, put his arms behind his back and he searched my client.  When asked what was in his pocket my client went to reach for his cell phone. The officer stopped him abruptly and reached into his pocket to take the phone. The officers had no reason to believe that my client was committing any crime.  

My highly educated client asked me, "What are my rights? Do they still need probable cause to search?" The answer is YES! They need "a reasonable suspicion that criminal activity is afoot" to detain you and question you. They need probable cause to believe you have committed a crime to search you. My client then said, "I thought maybe that had changed because of the Patriot Act."  I replied, "You are not an enemy combatant!"  

I felt sick to my stomach at the thought of this happening. My client had done absolutely nothing. It wasn't dark. He wasn't drinking or smoking or yelling. He was just relaxing in a park. Isn't that what parks are meant for? My client should have told the officers that they could not search him but of course, he didn't want to make waves, as most people don't.

The United States Constitution gives us the right to be free from unlawful search and seizures. The police can't come up to you and search you for no reason.  They have to have probable cause and in most cases they have to have a warrant.  

If approached by police, be polite, be courteous and just say NO!