[conspire] OT: More about conversations with police (was: Here in the 100-mile border zone)

[Rick Moen]

I wroite:

> So, here I sit, in my residence lying within both 'border zones',
> pondering the substantive legal rights of my household, and of CABAL
> members here and elsewhere -- especially given asserted plans for huge
> nationwide ICE raids this weekend.

FWIW, as I suspected, these claims originating from the Toddler-in-Chief
on Twitter have turned out to be bushwah. 
https://www.npr.org/2019/07/14/741653581/trumps-nationwide-immigration-raids-fail-to-materialize
But the surrounding subject about substantive legal rights and the
protection thereof is IMO still relevant.


> Even before this immigration witchhunt, my household has held
> family discussions about what to do (and not to do) if police ever 
> arrive and start being pushy.

If you do nothing else related to this thread, see this entertaining and
enlightening (and now modestly famous) video:

https://www.youtube.com/watch?v=d-7o9xYp7eE

This is an eye-opening 26-minute talk by a law professor explaining why 
you should always, always, always exercise your 5th Amendment right and
politely say nothing whenever the police (or other law enforcement
figures) 'just want to talk to you' or 'just want to ask you a few
questions'.   Make NO STATEMENT TO THE POLICE, period, at least until
you have spoken to legal counsel and can rely on legal advice.

Prof. James Duane runs through all the scenarios where people tend to
think it's perfectly OK to 'just make a statement' or 'just answer a few
questions' and ended up serving time because _any thing_ you say, he
shows, can be used against you.

One of the points Prof. Duane makes in passing is that the police
literally make baldface lies to people they think are suspects, to get
them to make incriminating statmenets.  This is actually not deemed
improper or illegal on their part.  It is a standard part of police
procedure.  (Duane cites a case where a man in Detroit was falsely
convicted of murder, a conviction later vacated, largely because police
fed him a series of deliberately false statements to prompt damaging
statements from him.)

The clincher comes half-way through the clip, because Prof. Duane
reserved half of his 47 total minutes for Officer George Bruch of
Virginia Beach PD for rebuttal -- and Officer Bruch said, yes,
everything Prof. Duane said is true.

Officer Bruch added (for the local audience of Regent University law
students) that police officers actually do try really hard to go after
only actual bad guys, but that everyone is guilty of at least some
little things, and feel a need to be honest, and also people being
questioned by police do dumb and impulsive things -- whereas the police
questioning them have all the time in the world and are trying to
develop a prosecutable case.  (Officer Bruch goes on to describe how he
conducts interrogations.  It's worth your time.)


There are three cases where I've found myself on the pointy end of law
enforcement briefly, which has made me attentive to this subject and 
prompted the aforementioned 'family discussions' about what to do 
(and not do) in the event of a police encounter.  


1.  In the early 1980s, I was living in a studio apartment in the San
Francisco Sunset District.  My doorbell rang one evening -- which was
unusual in itself.  I walked out to the front door, opened it, and was
gobsmacked when three SFPD officers were not only right there but walked
_right past me_, into the middle of my kitchen and living space.

In retrospect, that's the first and most important lesson.  The moment I
opened the door and saw a group of strangers -- police officers or not
-- I should have blocked the entrance.  It's intimidating to see cops
unexpectedly at your door:  They are extremely well aware of this fact,
and are perfectly OK with taking advantage of that small moment of
confusion to walk past you.  Later, if the matter comes up in court, 
they'll say their entry was consensual.  After all, you didn't stand in
the way, and you didn't say 'Hey, until you show a valid warrant for
entry to this address today, signed by a judge, stay the hell out of my
apartment.'  I was far too taken by surprise to say that.  That was a
blunder.  (So, please learn from my mistake.)

The second thing that happened is that the police in my kitchen and
living space physically searched my apartment, looking all around the
immediate area where they and I were standing, while one of their number
asked me to account for what I'd been doing.  I rather angrily said I
didn't see any need to account for my doings.  The other officers ended
their rummaging through my things a few minutes later, and the officer
in charge sneered at me and said 'Call your mother.  She's worried about
you.'  And the trio of them left.

I stopped and did a little legal research before calling Mom.  Officers 
have the legal right to do a quick surface search of their immediate
surroundings because of the risk of concealed weapons.[1]  This is the
main reason why it was a blunder to permit the officers to barge past me
without objection.  If I'd said 'Hey, I don't permit your entry without
showing a valid search warrant', they would not have been able to
lawfully rummage through my things, because they would not have been
able to lawfully enter my residence.

I called Mom, who was relieved.  She claimed she had repeatedly
attempted to telephone me from her house in Moraga, CA (about 30 miles
east and most of an hour's drive), and had repeatedly gotten
ring-no-answer for several days, so she had asked SFPD to do a 'welfare
check' -- to visit me and see if I were OK.  Near as I can tell, she
somehow had repeatedly dialed the wrong number, as mine was ringing
correctly.  But, the point is, SFPD ran roughshod over my rights to 
the security of my home -- because I stupidly let them in without
blocking their entry and saying 'Not without a warrant, Officer.'
Lesson learned.


2.  Around 2003, I got a very alarming call at work (VA Linux Systems in 
Fremont) from my mother, that my stepfather Bill Dalton had had a bad
fall at home, appeared to have a broken upper femur near his hip (he
did, and he never recovered), and that he'd been taken to hospital.  
I said I'd be leaving immediately.  Mom said she'd wait for me at home
(Moraga) to pick her up.  I started driving up I-880.  After the CA-238
junction, I had the presence of mind to get off the freeway and call 
Mom again.  She said she would be driving independently rather than
waiting for me, and told me Mr. Dalton was at Kaiser Permanente
Martinez.  (This was incorrect.  He'd been taken to Kaiser Permanente
Walnut Creek.)  Upon getting off the 'phone, I figured the best revised
route was to angle back towards I-880 on surface streets westward along
Lewelling Blvd. through unincorporated San Lorenzo to the I-880
on-ramp.  As I passed the 100 block, I noticed some police activity in a
strip-mall on my right, but didn't think much of it until I suddenly
noticed a police car close behind me.  On a hunch, I unobtrusively but
quickly got my driver's licence, proof of insurance, and vehicle
registration into my hands and my hand both on the steering wheel.  Sure
enough, within sight of the I-880 on-ramp, the police car turned on its
lights and an officer ordered me to pull into a driveway.  I did so, and
was amazed to find a semicircle of Alameda County Sheriff Dept.
deputies' cars around my in the large industrial parking lot I'd pulled
in, and officers with their service revolvers already on their hands.  I
of course made no movements except as directed.  The police asked me to
exit my car, which I did.  They asked me to stand and clasp my hands
behind, which I thought was prelude to handcuffing me, but they just did
a pat search for weapons.  They queried me closely about the ownership
title to my used car.  I made a guess about when I'd bought it (and was
off by about two months), but said, if they wanted to see the purchase
paperwork, the bill of sale was in the centre console.  They tried to
call me a liar for being wrong about the month of sale, but I said,
bullshit, that was my best recollection, and anyway, they could confirm
my ownership with DMV.  (Arguably, my engaging with them at all was
unwise, but this had no ill effects.)

They continued to hold me for about two hours. and, shortly after the pat
search, asked my permission to search my car.  This was where I made
another small blunder, albeit the effects were harmless:  I said 'Sure, go
ahead.'  I was thinking, hey, my car is a mess.  You want to further
ruin my day with an inapproriate police encounter, fine, I'll ruin yours
by giving you permission to rummage through my big mess.

They didn't find anything unlawful, as I lead a boringly law-abiding
existence.  Days after the fact, I had two troubling realisations:

(a) If for some reason, an officer had reason to dislike me, that would
have been the opportunity to plant evidence of a crime.  I was unaware
of any reason Alameda County would be after me, but it's a non-zero
risk, and giving permission for search enabled that risk for no benefit.

(b) Furthermore, it belatedly occurred to me that persons I'd given a
lift in my car might not have been boringly law-abiding and might have,
say, accidently dropped bag from their drug stashes in my messy back
seat.  Fortunately, they hadn't, but it was a risk.

The sheriffs seemed keenly interested in my car, e.g., they looked
forward to seizing the ratty old thing in civil forfeiture of they could
assert that I was using it for criminal activity of some sort -- but
eventually some radio call came in, everyone relaxed, and I was told 50%
of the truth.  They said, hey, the licence plates on your car aren't
yours, and we're going to have to confiscate them, but otherwise we
regret having given you a hard time, and you're perfectly free to go.

The 50% they weren't revealing was pretty obvious:  The strip mall I'd
driven past was the scene of some major police bust, perhaps part of the
War on Some Drugs.  As part of that, they'd set up an Automated Licence
Plate Reader (ALPR) gadget to monitor all cars passing the scene of the raid.
ALPRs have cameras hooked to a computer that OCRs the licence plate
numbers and sends that information over police radio, which looks up the
car record and flashes for the officer's attention a description of the
car and its owner.  

https://en.wikipedia.org/wiki/Automatic_number-plate_recognition
https://www.eff.org/pages/automated-license-plate-readers-alpr

This technology is widely used for mass-surveillance purposes by _both_
police departments and private interests.  PDs are (in general) highly
reluctant to admit that they employ such data dragnets, lest defendants
and civil libertarians find reasons to object and to limit their use.
In this case, perhaps Alameda Sheriff's Dept. was putting out a wide net
for anyone with a suspicious profile driving past the (let's say) big
drug bust -- someone like a drug or money runner.  That person might be
driving, say, a stolen vehicle.  And there I was, driving a car with a
licence plate whose DMV record said it belonged to a completely
different car with a different colour that was registered to someone
near Los Angeles.

When I checked the purchase paperwork in the centre console, it indeed
specified a licence plate number that was one digit away from the one
my car had bolted to it.  We never did figure out how that screw-up
happened.  I'd never noticed, when I bought the car, that its licence
plate was incorrect.  (DMV replaced my confiscated plate later that day, 
and didn't even charge me for the new plates.)


3.  One evening in the middle/late 2000s, I was making one of my
approximately monthly visits to my elderly mother's house in Moraga, 
which was of course partly social but also involved her trusting me to
go through all of the month's bank paperwork, bills, and correspondence,
file the bank statements, prepare payment cheques for the bills, and
assess any other correspondence for Mom's review.  At the time, my
sister Michele Strickland, her husband Michael (a used car salesman),
and their younger (pre-teen) son Chase had moved into Mom's house for
the second time because they were financially imprudent and could not
support themselves, and had for a couple of years already refused to
leave when Mom demanded that they do so.  There had been occasional
friction with my brother-in-law Michael, where he suddenly and for no
apparent reason threatened me with violence, after he proposed to me
that he and I seize control of my elderly mother's personal affairs and 
finances, and I had politely declined on the basis that neither of us
even remotely had any right to do that.  But basically the Strickland
were squatters -- with my taking no action about this on my own because
Mom didn't want me to.

On this evening's visit, I happened to be looking for one particular
bank statement, and said 'Michael, is the Bank of the West statement
anywhere around here?'  He again came straight up to my nose (he towers
over me), and started yelling rather crazy stuff including threatening
to 'beat [me] up'.  I made as usual no comment, just started perplexedly
at him for a moment, and then backed away and returned to Mom's office
to finish the paperwork for Mom to review.

About 15 minutes later, suddenly I was further surprised to see a Moraga
PD officer walk into Mom's office, and, with characteristic effrontery,
presumed to question me.  There were about about four officers, most of
whom were talking elsewhere in the house's bottom  to the Stricklands,
including the officer in charge.  Meanwhile, Mom was upstairs in the
master bedroom, probably napping.

I spared a moment to be disgusted by the implications:  My sister or her
worthless husband, the squatters, had attempted to wield law
enforcement as a cudgel within the family.  We are not that kind of
Jerry Springer Show underclass family.  This would therefore count as
something that would be Not Done in my family -- but first I had to
dispose of the immediate problem:

The officer demanded that I account for my presence.  I said I was the
homeowner's son, present doing financial/clerical work at her direct
request.  She asked to see my photo ID. 

I considered the matter briefly, as I was already well briefed on the
law about this:  The police in California, if they have 'stopped' you
and are asking you questions, have NO legal right to demand even your
name, let alone show photo ID -- unlike in some other states such as
Nevada that have 'stop and identify' statutes, where you must if asked
by a peace office give your correct name.  (As I mentioned upthread, if
you were stopped while driving a car, things are different.)

Although aware that the officer was demanding what police have no right
to demand (in this state), I was damned if I was going to hide from
anyone, and was on lawful business and certain of my legal ground, so I
stated my full name and address, and handed her my US passport -- while
thinking 'Yeah, but I've just about reached my limit on this'.

The officer looked pained, and asked for my driver's licence instead of
my passport.  This was of course compounding effrontery with much worse
effrontery.  They weren't interested in my proving my identity:  They
wanted to check state DMV records to see if I had a warrant out for my
arrest or something like that.  Having absolutely zero criminal record
of any kind, I figured 'OK, I'll let this asshat look at my driver's
licence, and call it in, but this charade has now gone too far, and I'm
not going to endure anything else from these clowns.'

I was entirely polite in giving her my driver's licence, and she
probably had no idea I'd just reached and passed my limit on police
misconduct.

After calling in my licence, finding that, no, I'm not someone with a
criminal record who could be just taken in or threatened onto the
street, she consulted with the officer in charge, and then a few minutes
later came back.

'The residents are unconfortable with you being here, and want you to
leave.'
'By this term "the residents", I assume you mean the Strickland squatters, my
sister and her husband.  I'm sorry they feel that way, but find that
I really don't particularly care.  As I've mentioned, I'm here by 
the explicit invitation of the homeowner, Faye Dalton, who is upstairs
and can confirm that fact.  If the Stricklands don't like the homeowner
having her son over, that sounds like a personal problem, to me.'
'We don't want to disturb an elderly woman's sleep.'
'Again, I find myself not caring about what you're willing or not
willing to do.'
'We need to know when you're going to be leaving.'
'When I'm done filing paperwork, preparing bills for her to consider
whether to pay, and visiting with her upstairs.  Not before.'
'When is that going to be?'
'I have no idea at the moment.  If Ms. Dalton is willing to let you 
stick around, you can wait and see when I'm done, but I'll advise you
that you're making a very questionable judgement remaining in her house
without her knowledge or consent.'
'We need to know that you're gone from this house before we leave.'
'Again, I find myself not much impressed by what you want.  I'm here 
on lawful business, whereas I have considerable doubts about whether you
are.'

This was of course the outcome that the officer in charge ('OIC')had already 
decided:  They'd looked at the Stricklands' photo IDs and seen that
(since the squatting had been ongoing for a few years) at least one of
them had my mom's street address, whereas my photo ID said I lived in
Menlo Park.  So, with typical police logic, they'd decided that the easy
way to close this case was to demand that I leave.  But there I sat,
being unimpressed.  She decided to deploy the never-fail big weapon:

'Well, if you're not willing to leave, we're just going to have to take
everyone down to the station.'

Police expect to push people around in basically extralegal ways.  They
would much rather just have people get intimidated and surrender their
rights because they assume the cops have the powers they suggest they
have.  Very rarely does someone make the smart choice of _not_
physically opposing them but also standing on their legal rights and
making clear they're going to sue and take the squad's lunch.  And, oh
my, that's what this 43-year ACLU member did, and I wish I had video,
because it was a thing of beauty:

I visibly relaxed, and smiled broadly.  ('Oh-oh', she thought, sensing
that the _wrong_ script was now playing out.  Relaxation and a smile was
absolutely not what she expected, and a very bad sign.)  I said, 'Oh,
you can certainly do that.  But then, there's going to be one hell of a
lawsuit.'

Long pause.

She flinched.  I smiled peacefully, then turned back to ongoing paperwork.
She said 'Please stay here.  I'll be back in a minute.'  I kept working.

About a minute later, she appeared with the OIC, and said 'Would you
remind repeating what you just told me a minute ago?'  I said, 'Glad to.
The officer here advised that if I didn't leave pretty soon, your squad
would need to bring everyone down to the station.  I allowed as how you
certainly could do that, but that, then, one hell of a lawsuit would
immediately follow.  Is it time for me to call counsel?' I tilted my
head for a moment and cocked an eyebrow, waiting for a reply.  Hearing
none, I turned back again to the paperwork.

Someone on that squad was reasonably bright, and figured out that I was
absolutely not bluffing, and would be keeping my powder dry by being
entirely non-violent and quiet, but would be engaging good attorneys to
take them apart in court.  A couple of minutes later, I heard the front 
door shut:  It turned out they'd all rushed out the door and driven off,
without risking saying another word to me.  Hmm, interesting.  'Oh,
you can certainly do that, but then, there's going to be one hell of a
lawsuit' turned out to be Words of Power when said in a suitably relaxed
manner with a predatory smile.

I honestly thought they might order everyone down to Moraga PD, so I was
a bit surprised at the quiet capitulation.  I actually expected to have
to sue and take Moraga PD's annual budget in court -- but of course they
knew they were _way_ out of line, and the OIC was apparently smart
enough to flinch.  Possibly, it showed on my face that they'd picked the
wrong battlefield and the wrong enemy.


In all three of these encounters, I noted running themes:
(a) Police aggressively act as if they have rights they actually lack.
    If you concede, you lose.
(b) Talking very little, being polite, and making clear you'll not fight 
    them here, but will savage them in court, is your best plan.
(c) If they ask your consent for a search -- any search -- say no.  
    You have zero obligation to explain.  Just say no.
(d) When they say you 'must' answer question X, or 'must' give
    information Y, say you'll consider their request 
    whevever a judge confirms that you must answer it.  Then, say 
    nothing more.
(e) Be peaceful, physically cooperative, and silent.  Hold your
    powder until you've spoken with legal counsel.  Then, take their
    lunch in court -- the right battleground.

Smart cops, like the Moraga PD officer in charge, will be much less
inclined to mess with you.



[1] It's been a long time since I researched that matter, but I _think_
the rationale for this is from the US Supreme Court case Terry v. Ohio
(1968):  https://en.wikipedia.org/wiki/Terry_v._Ohio 

People should also understand that, in limited circumstances, police may
lawfully enter private premises without warrant on account of 'exigent
circumstances':  https://en.wikipedia.org/wiki/Exigent_circumstance
Typically, this is something like police being in hot pursuit of a
suspect who's believed to have taken refuge in your home, or police
having good-faith belief they need to enter to save someone from
imminent harm or to prevent serious damage to property.