What to do when you interact with the police

Police Encounters: What to do when you interact with the police

"Every Action Counts" - How to interact with a police officer

Every move you make in front of police officers is calculated into reasonable suspicion for searches and seizures, and probable cause for arrest. From stopping you on the road in a vehicle or stopping you on foot in a public place, an on-duty police officer is there to look for signs of criminal activity. Given the frequency of civilians on the road and in public places, we should monitor and control our behavior in a way that will limit our interactions with police. There are multiple levels of police interactions we must be aware of before deciphering how to handle ourselves in the face of law enforcement.  We must balance our actions to avoid arrest with measures to avoid obstructing law enforcement.

What constitutes obstruction of law enforcement Georgia? OCGA § 16-10-24 defines Obstruction of Law Enforcement as: “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” Ordinarily, words alone are not enough to charge someone with obstruction. Words lead to interfering with an officer's official duties, only when they are coupled with the threat of physical violence or harm. Johnson v. State, 330 Ga. App. 75 (2014). The best thing you can do is use non-threatening words, ask the right questions, and remain calm. Every police interaction will be different; use your best judgment.  Your rights change as the situation progresses.

Police Encounters On the Street:

Suppose an officer approaches you on the street or in a public place; he asks for your ID and begins to ask you suspecting questions. An officer has every right to approach you and ask to see identification. Cox v. State, 250 Ga. App. 69 (2001). However, any interrogation past your identification requires consent or reasonable articulable suspicion. Watts v. State, No. A15A0796, 2015 WL 7305936, at *7 (Ga. Ct. App. Nov. 20, 2015). If you consent to questioning or consent to the officer searching your person or property, the encounter is seen as a ‘consensual encounter' and falls outside of the protection of the 4th Amendment. Anything that the officer finds with consent can be lawfully used against you in court. At any point during these consensual encounters, you are free to go without answering questions or allowing the officer to search you. The key to these encounters is to avoid allowing an officer to find anything that leads to probable cause to arrest you for a crime without obstructing law enforcement.

An encounter based on reasonable suspicion is a drastically different encounter. Reasonable suspicion is required for law enforcement to further detain you to investigate without your consent while probable cause is required to make an arrest for a crime. Terry v. Ohio 392 U.S. 1 (1968). Police officers do not need your consent to detain you when they have reasonable suspicion that you may have committed a crime and you are not free to leave at any point. Reasonable articulable suspicion is assessed by the totality of the circumstances of events that led to the police encounter, and whether a reasonable police officer will similar or like experience would suspect you of that same crime. Terry v. Ohio; and Lewis v. State, 323 Ga. App. 709 (2013). These encounters subject you to an investigation without the use of a Miranda warning. Anything you do and say at this time can be used against you for probable cause which will lead to your arrest.

Any efforts to hinder an ongoing investigation could avail you to an arrest for obstruction of law enforcement. O.C.G.A. § 16-10-24. Make sure to respectfully ask the officer if you are free to go, or if you are being detained. Without an officer's reasonable suspicion of a crime, you are free to leave. The officer is obligated to tell you if they have suspicion to detain you further.

Police Encounters While in a Vehicle:

An investigatory vehicle stop requires reasonable suspicion to pull over and arrest an individual. If you have been pulled over for a minor traffic violation, the officer will need separate reasonable suspicion to search and seize you and your vehicle beyond the scope of the traffic violation. Nervousness is considered a behavior of criminal activity for reasonable suspicion when paired with other signs and behaviors, so remaining calm is to your best advantage. Illinois v. Wardlow, 528 U.S. 119 (2000). The scope and duration of the traffic stop are limited to the initial purpose of the stop, which in most cases is purely the traffic violation. If an officer has issued a traffic citation (ticket), the scope and duration of the stop has concluded and you are free to go. You have no legal obligation to allow an officer to search or question you further for another crime where separate reasonable suspicion does not exist. Arizona v. Johnson, 555 U.S. 323 (2009). You should ask for permission to leave, and understand that if they do not know you are entitled to know why. In any effort to further detain you, rely on the legal system to right the wrong by remaining calm, not fleeing, and not resisting an arrest. Fleeing coupled with other signs of suspicion can lawfully rise to a level of reasonable suspicion the officer needs to further detain you. In my professional experience, I have seen the legal system undo the mistakes that officers have made. I have seen charges dropped based on a lack of probable cause, unlawfully extending detainment without reasonable suspicion, and unlawful arrest. The one charge that cannot be dropped based on those merits would be obstruction of law enforcement and individuals are subject to the mercy of the prosecutor and judge to drop those charges as well.

Passengers in Vehicles Have a Large Role in Police Encounters:

Passengers are subject to the same searches and seizures that their drivers are subject to based on the officer's reasonable suspicion. U.S. v. Brignoni-Ponce, 422 US 873 (1975).  Your actions can amount to the necessary reasonable suspicion that an officer needs to lawfully search and seize the automobile, the driver, and any passenger[s]. You should remain calm and treat the encounter as if you are the driver subject to search or arrest. The presence of a passenger increases the risk to the officer's safety during the detention. Due to this safety concern, the officer is allowed to require both the driver and passengers to exit the vehicle, without reasonable suspicion, while he performs the traffic stop. Maryland v. Wilson, 519 U.S. 408 (1997). An officer is also allowed to check a passenger's ID and run his license to check for possible arrest warrants. State v. Williams, 264 Ga. App. 199 (2003). Refusing to do any of these standard police-stop-practices could render you in violation of Obstruction of Law Enforcement laws of Georgia.

How Should I Act When a Relative or Friend s Being Arrested?

The best thing you can do for a relative or friend that is being arrested is to stay out of trouble and let the legal system resolve the discrepancy of lawful and unlawful arrest. In my 20-year career as a defense attorney in Georgia, I have seen the system overcome these discrepancies through good law practice alone. Avoiding obstruction of law enforcement to remain a valuable resource to your relative being arrested is the best assistance you can provide them. It is difficult to bond them out when you are arrested for obstruction.

Anyone within the investigation location is subject to the authority of police officers. Their main priority is to maintain control of a safe investigation. That authority controls innocent bystanders and individuals related to the suspect of a crime. Any disruptive or interfering behavior can lead you to an arrest for obstruction of law enforcement. Harris v. State, 276 Ga.App. 234 (2005). Make sure to follow the instructions of officers while staying close by to witness the investigation. Being polite and listening to direction could help you and your relative during future court proceedings. Allow the legal system to do the heavy lifting if you find the encounter to be unlawful.

Can I Take a Video of the Police?

Police encounter recordings have been a focal point in recent news. As recent civilian-police encounters surface, there has been a huge shift from officers relying on dashboard cameras to the use of body cameras, to record every police interaction. Dashboard cameras have notoriously failed our legal system due to glitches in both audio and video from the outdated equipment. There is little-known assurance that we won't face the same problems with body cameras. The recent influx of private citizens recording police interactions is bringing light to unlawful arrests and police brutality, although the latter is less common.

With the unreliability of police recordings, this leaves many people asking: if they can record us, can we lawfully record them? In the state of Georgia and the 11th Circuit, recording police officers is legal. The First Amendment right to record police officers on public property and matters of public interest have been dignified lawful by Smith v. The City of Cumming, 212 F.3d 1332 (11th Cir. 2000). You also have the right to publicly display your recordings. Smith v. Cumming ruled that recordings are lawful, however in that particular case, a showing that they were deprived of such right was difficult to prove.

As a result, the short answer is, yes you can video the police.  When the police tell you to turn off your camera they are acting unlawfully.  

Common Sense Discussion on How to interact with a Police Officer

When you interact with the police, use your common sense.  They are ultimately human beings walking around with firearms.  You cannot disobey a lawful order of a police officer.  If you do, you will be charged with obstruction.  The grey area is when you are given an unlawful order, such as to turn off your video camera.  In that situation, remember first that the police officer is still a person who can cause you great physical and legal harm.  When a police officer acts unlawfully, it may be best to still obey.  Once in court, that same officer has no more authority than any private citizen.  The legal system is designed to deal with officers who overstep their authority. Take care and be smart.