Know Your Rights: Do You Have to Talk to Cops?
Strict Scrutiny
In this episode of 'Know Your Rights,' Leah and Melissa discuss the legal rights individuals have when interacting with law enforcement, fea
Key takeaways
- You are not legally obligated to stop or answer questions when approached by police unless you are formally seized.
- A 'seizure' occurs when a reasonable person feels they cannot leave, even without explicit commands.
Main topics
- Fourth Amendment rights
- Consensual encounters vs. seizures
Notable quotes
You can walk away, go about your business, and hopefully the police officer will leave you alone.
Conclusion
While legal rights exist on paper, real-world safety requires judgment and awareness of
Transcript preview
Speaker 4 (0:00) Strict scrutiny is brought to you by Americans United for separation of church and state. 250 years into the American experiment, it's time for all of us to decide. What kind of a country do we want to be? The founding fathers got a lot of things wrong, but one thing they got right was knowing that church and state need to be kept separate. Christian nationalists are trying to destroy that history and take this country down a scary path. They're misusing government power to impose their beliefs, rewrite our history, and decide who belongs in America. Americans United refuse to let that happen. Every single day, Americans United is fighting back and holding the line against Christian nationalism with everything they've got. AU has sued the Trump administration seven times in the last year alone. and 12 times since the second administration began. They've challenged government officials who use taxpayer resources to promote their religious beliefs. They're exposing abuses of power, defending public schools, and holding the government accountable when it violates the Constitution. But filing lawsuits, changing policy, and community advocacy don't happen on their own. They happen because people like you decide to be part of Americans United's fight. If you're looking for an empowered community to join, take a look at what's going on with AU. Visit au.org slash crooked to learn more and join the fight today. Speaker 3 (1:12) Mr. Chief Justice, no joke. If you're arguing men's arguments against two beautiful ladies like this, they're going to have the last word. Speaker 2 (1:23) She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 4 (1:55) Hello 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 Speaker 5 (2:25) go through this important question is my NYU colleague, Daniel Harawa. Daniel 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 Speaker 1 (2:41) am so happy to be here. Thank you for having me. Speaker 5 (2:43) Of course. Speaker 4 (2:44) 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? Speaker 1 (2:52) 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. But yes, you can walk away. Speaker 5 (3:10) I'm sorry. Wait, can I walk away? Can a melanated person walk away? Speaker 1 (3:16) 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? Can I walk away? And the officer should give you an answer. the safer course is probably acknowledging them and then walking away as opposed to just ignoring them outright. Speaker 5 (3:51) All right. Are there any instances where a law enforcement officer could tell me stop and I could just keep walking without getting arrested? I mean, do I have to be pretty sure that I have not done anything wrong and have witnesses around to make sure that that is exactly the case? Speaker 1 (4:06) 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. And 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. Speaker 4 (4:40) 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? That is, how do you know if you've been seized within the Fourth Amendment's meaning such that those additional protections apply? Speaker 1 (5:09) 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, we're just 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. But 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. Speaker 5 (6:10) So 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? Speaker 1 (6:24) 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. And 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? Speaker 5 (7:16) Would 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? Speaker 1 (7:33) 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. You 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. Speaker 4 (8:32) Yeah. 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. And so I think that kind of gives a sense about like how high the bar is. Speaker 1 (9:07) Yeah.