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Civil Rights

Posted By Emily Ghant (Johnson), Wednesday, February 11, 2015
Updated: Wednesday, February 11, 2015


I frequently get calls from individuals who want to know what the police can and cannot do.  Can they search my car? Can they search me? Can they force me to show identification?  Do they have to read me my rights? When can I be arrested? These are just a few of the many questions people have about their interaction with law enforcement.  Prior to addressing these issues, it is prudent to mention of a couple of ways to help avoid problems with the police.

Don’t ever force a confrontation with the police

Even if you believe you are 100% correct, do not antagonize police officers. Much like any profession there are some good officers and some bad officers, but they all have a job to do.  The quickest way to find yourself injured “resisting arrest” is to challenge the police and tell them what they can and cannot do.  You might be armed with your constitutional rights, but they are armed with guns, mace, tasers and batons.  If you feel your rights are being violated, do not physically resist the police but do state calmly and clearly that you do not give permission or consent to a search of your body, car, house, etc. The best place to vigorously fight violations of your constitutional rights is the courthouse, not on the roadside.


Do not leave your vehicle (unless ordered by the police


Traffics stops are dangerous for the police and can be for you as well. Never leave

your vehicle voluntarily even if you have a good reason.  The police do not know you and do not know your intentions and will likely fear the worst.  I had a client rushing to the hospital after he was advised his dad had a stroke.  He sped through a speed trap and an officer pursued him.  He pulled over and immediately got out of his car to explain himself to the officer.  The officer calls for back up and screams at my client to get back in his vehicle.  My client yells back about his father, but the officer continues to order him back into his vehicle.  The other officers from the speed trap arrive and they take my client down on the concrete and he hits his head.  My client’s brother gets out to see what is going on and he is thrown up against the vehicle.  This situation could have easily been avoided by both sides.  The key thing to remember is the police can’t read your mind and will assume you are a threat if you leave your vehicle.


1) Can the police force me to show identification?

Georgia is not a strict “stop and identify” state and ties the identification request in with the loitering statute.  Georgia Code § 16-11-36 states the following:

(a) A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

(b) Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

            Although this seems somewhat clear, the language of the statute allows for many ambiguous situations to qualify as a time when identification is required.  It is likely in your best interest to produce identification if requested by law enforcement to avoid further more invasive inquiries and confrontation.

2) When can I be stopped and searched?

Generally, the Fourth Amendment requires that the police have a reasonable suspicion that a crime has been, is being, or is about to be committed before stopping a suspect.  If the police reasonably suspect the person is armed and dangerous, they may conduct a quick pat-down of the person’s outer clothing.   

3) Do the police have to read me my rights?

            Yes, they do.  However, the remedy for this type of violation is the suppression of any information that incriminates you or others in your criminal trial.

As a final thought, racial profiling exists. People in general judge you based on how you look and act.  Law enforcement is no different.  Young black males are disproportionately represented as both victims and offenders of homicides.  If you're a young, black male, chances are that you will be stopped by law enforcement officers even when you haven't done anything wrong. If stopped by law enforcement for no reason, keep in mind the following to ensure your safety. When stopped, assume a non-threatening position with your hands visible. If ordered out of your vehicle, be calm, speak clearly and stay in front of the police car if you can as this is usually where the video is pointed. Do not antagonize or confront the officer.  If your rights are being violated, that can be addressed in court where the playing field is more level.  You can also file a complaint with the police department.


Matt Gebhardt is an attorney in the Atlanta area who pursues cases for those whose civil rights have been violated.  The above information is in the form of general guidelines intended to inform the reader and is not intended as legal advice.

***If you think that your civil rights may have been violated, please call Atlanta Bar Association's Lawyer Referral & Information Service at 404-521-0777 for a referral to the proper attorney!*** 

Tags:  black male  civil rights  constitution  law enforcement  legal  LRIS  miranda rights  officer  police  search  violated  violation 

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5 Things to Remember during a Police Encounter

Posted By Emily Ghant (Johnson), Monday, October 20, 2014

See what local Criminal Defense Attorney, Noah H. Pines, thinks we all should know regarding interactions with law enforcement.


Every encounter with the police involves hundreds of variables. This guide cannot cover all of those variables but instead is designed to teach you how to stay safe and protect yourself during a police encounter and to educate you about some of your Constitutional Rights.


1. Stay Calm/Stay Safe

The key to any citizen/police encounter is to stay calm and stay safe. Getting stopped or approached by a police officer can be a nerve-racking experience. In fact, you often hear police officers ask people "why they are so nervous?" If you are stopped by the police officer, do not panic and do not do anything stupid (like try to flee, start hiding stuff in your car or throwing it out the window, or fight with the police). Instead, if you are the driver of a car, pull over immediately. Once you are pulled over, place your hands on the top of the steering wheel and leave them there until the officer has approached the side of your car and can see them. If a police officer sees you moving in your car or reaching for things, the officer will automatically think that you are either hiding contraband or reaching for a gun. This happened recently in South Carolina when a police officer instructed a man who had just stepped out of his car to "show his license." When the man reached back into his car to get his license, the officer shot him several times; the officer's excuse was that he thought the man was reaching for a gun. If you need to get something or reach for something, ask the officer for permission before you act. Be polite and respectful to the officer even if you do not think you did anything wrong. It is true that police officers often stop people for no reason or without legal justification. Even in this circumstance, it is not going to be helpful to argue with the officer. Arguing with a police officer is like arguing with a referee or umpire; you are not going to win the argument, the officer is not going to change his decision and unlike a referee or umpire, who can throw you out of a game, the officer can simply arrest you. Your lawyer will ultimately be the person who argues for you in court. If the officer made a mistake or treated you unfairly, let your lawyer deal with it as your lawyer can actually "win that argument" in court.

2. Are you being detained or are you free to leave?

There are three different levels of citizen/police encounters. The two that are important for this topic are the Tier 1 & Tier 2 encounters. A Tier 1 encounter is called a voluntary encounter in which a police officer can approach you and ask you questions without any belief that you committed a criminal act; you can walk away from a Tier 1 encounter at any time. The problem is that a police officer will never tell you that he is conducting a voluntary encounter and that you have the right to walk away unless you ask. So, if you are approached by a police officer, even before start answering questions (which we discuss in the "You have the Right to remain silent" section of this guide), you should ask the officer whether you are being detained or whether you are free to leave. If the officer says you are free to leave, then you know you can go. A Tier 2 encounter is often referred to as an investigatory stop and typically occurs when you are driving and pulled over. In a Tier 2 encounter, the officer may stop or detain you based on a reasonable articulable suspicion, which means that there is some objective evidence that you may have committed a crime. However, just because the officer has the right to stop or detain you does not mean that you are required to answer questions and incriminate yourself. Again, since an officer is not going to volunteer whether he is conducting a Tier 1 or a Tier 2 encounter, ask the officer if you are free to leave. As we know from the Tier 1 situation, if he says yes, then you can leave. If he says no, then if and when the case goes to court he will have to prove that he had enough evidence to detain you.

3. Do I have the Right to remain silent?

Yes, except for identifying yourself, you have the right to remain silent. You have that Right even if the officer does not inform you of that Right (which typically is not required unless your are under arrest and being interrogated). What that means is that you do not have to answer the police officer's questions, which are designed to get you to incriminate yourself. For example, if you are stopped and the officer asks "have you been drinking?" instead of answering "no" or "yes, but I only had two beers" you can simply answer, "officer I would rather not answer that question or any other question you intend to ask me." Many people are afraid to give that answer because they believe it will make the officer mad; however, all you are doing is exercising your Constitutional Rights and protecting yourself from making an incriminating statement, which is all that the officer is trying to get you to do. Let the officer be mad at you for exercising your Constitutional Rights; that is better than you getting mad at yourself after you made an incriminatory statement and end up arrested. Many people ask, "but then won't the officer think I am guilty?" Again, who cares what the officer thinks. It is better for the officer to think you are guilty for not making a statement, than to know you are guilty after you have either lied to him or made an incriminatory statement. Finally, it is a misconception that the officer's failure to inform you that you have the Right to remain silent will result in your case being dismissed. That rarely, if ever, happens.

4. Should I sign a statement?

If you failed to listen to my advice about exercising your Right to remain silent and are asked to sign a statement, please remember these simple rules. 1. If you are being accused of a crime, do not give or sign a statement without first consulting an experienced criminal defense lawyer. 2. Even if you cannot afford to hire a lawyer, ask to have a lawyer present to help you understand your Constitutional Rights. 3. Do not sign a statement you did not write. 4. Do not sign a statement you did not read. 5. Do not sign a statement you do not understand.

5. Should I consent to a search?

The 4th Amendment to the Constitution of the United States of American protects you from unlawful and unreasonable searches and seizures. Unless a police officer has a warrant, or there is a legal exception to the warrant requirement, he cannot conduct a search; this includes but is not limited to a search of your person, car, house, etc. One of those legal exceptions is if the officer has your consent to search. In my experience, over the past 20 years police officers have been trained to ask everyone that they come into contact with for consent to search, even if there is no evidence that a crime has been committed. If you are in your car, the officer may ask "you don't have any hand grenades, explosives, land mines or bombs in the car, do you?" When you answer "no" the officer will usually follow-up with "do you mind if I look?' You should mind and you should be offended. Do you really think the officer thinks you have a grenade in your car? No, he asks that question to knock you off your guard and to get you consent to a search. In my opinion, even asking for consent to search degrades your Constitutional Rights. Most importantly, the officer does not have to inform you that you have the right to refuse consent to search and the police officer can even lie to you to trick you into consenting. Recently there was a case in which a police officer went to the house of a suspected drug dealer and informed the person who answered the door that he was looking for a suspected rapist who might be hiding in the house; of course there was no rapist and the officer just wanted to search the house for drugs. You have the Constitutional Right to say "no" or "officer I do not consent to you conducting a search." These answers will typically cause the officer to ask you "what you have to hide?" If you feel it is necessary to reply, simply ask the officer if you have the Constitutional Right to refuse consent. When he says "yes" then just reply that you are exercising your Constitutional Rights.



Tags:  Atlanta Bar Association  criminal defense  felonies  interrogation  law enforcement  LRIS  police  traffic citation 

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