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The Law of Burning Man

For those unfamiliar with Burning Man, it is a gathering in “Black Rock City” in the middle of the Nevada desert. The event focuses on fostering principals of love, creativity, self-reliance, community, and being in the moment. As such, it is hard to imagine that the long-arm of the law has anything to do with the event.

burning manHowever, as a 5-square-mile pop-up metropolis, law enforcement is absolutely, and understandably, present. Moreover, the land where Burning Man awakens every year is federally owned, meaning the event and event-goers (“Burners”) are subject to both federal and state law.

What Is the Law of Burning Man?

It’s important to mention that the law governing this five-day (up to ten-day, for some) desert soirée is incredibly vast. From a Burner’s perspective, the law of Burning Man is likely akin to “be nice, be safe, have fun.”

However, from the perspective of the Federal Bureau of Land Management, Nevada Highway Patrol, and a handful of Nevada Sheriff’s Officers and law enforcement bodies, the law is the black letter, on-the-books law of the Nevada, and, to top it off, any applicable federal law.

Here’s a simple breakdown of relevant criminal laws that may affect Burners:

  1. Speeding – While entering the event, the speed is a strict 10 m.p.h., and while in Black Rock City, the speed is 5 m.p.h. While Burner’s are generally strictly prohibited from driving once they arrive at their campsite, arriving at and leaving from could land speeders with a hefty moving violation.
  2. DUI – Similarly, driving under the influence is just as serious of an offense in Black Rock City as it is anywhere else in the country. Again, while Burner’s are typically not driving around during the festival, it’s possible to get a vehicle permitted to do so. Additionally, certain types of vehicles, such as electric bicycles or other devices that are not solely human powered may fall within the ambit of Nevada’s DUI laws.
  3. Contraband – This is potentially the biggest overlap with federal law the event faces, and consequently the one with the most potential for serious legal issues. Since the event is on federal land, and marijuana is illegal under federal law, any marijuana—even medicinal marijuana—is strictly forbidden.

It’s also worth noting that dog sniffs of vehicles do not constitute a search. There is an argument to be made that a camp has a higher expectation of privacy; however, that argument wouldn’t have an audience until after a search based on probable cause and potential arrest, thus ruining an otherwise fun party.

How Else Could the Law Affect the Party?

Wrongful death and personal injury lawsuits all have a quiet potential at Burning Man. Sadly, this year a young woman was killed by a bus transporting participants. This is the first tragedy of this sort in 7 years, but it is a universal truth that accidents happen. Additionally, the back of the Burning Man ticket may attempt to waive liability for such accidents.

However, courts frequently disregard such waivers. Meaning quite simply that if the surviving family is so inclined, they may be entitled to seek compensation for their untimely loss.

Is Burning Man Just Filled with Eager Police?

Each year, there is roughly 1 police officer per 1,000 participants. While that seems low, consider that New York City has roughly 4 police officers per 1,000 residents. And, remembering that New York City is a city of over 8,000,000 compared to Burning Man’s 50,000-70,000, that figure becomes pretty staggering.

Still, arrests are rare for an event of this size and duration. From 2010 to 2013, only 38 participants were arrested of the 227,248 who attended. However, drug citations are remarkably higher, creeping in at just under 1,000 issued during that same time frame.

These numbers provide a pretty clear message: come for the fun, but if you break the law or bring drugs, don’t be surprised if you get burned.

Can Police Lie?

We’ve all seen or heard the rumor: if you ask a police officer if they are a police officer, they have to tell you.

Nothing could be further from the truth.

The reality is, police can, and often do, lie. They can lie about being undercover. They can also lie about anything.

can police lieWhy Can Police Lie?

One word: efficiency. After all, a police officer wouldn’t be able to do their job very well if they had to just recite actual facts to suspects.

For example, let’s assume there are two suspects who are arrested on suspicion of drug trafficking. And, let’s also assume they were actually transporting illicit substances, but the police don’t have any concrete evidence. So, they tell one suspect that his cohort just sold him up the river, confessed to everything, maybe even some extra stuff too just to get them to deny some crimes but admit to other crimes, and that person in turn admits to everything. In an instant, an otherwise evidence-less case is looking significantly stronger.

Put simply: the easiest and best way for police to get real, concrete evidence is to manufacture a story and sell it to a suspect.

What Can Police Lie About?

Anything. Well, almost anything. A better way to put it is more like they can lie about nearly anything related to the crime, and some things that are not closely related to the crime to a certain degree, depending on the facts and circumstances of the specific case.

However, that’s a lot to remember. The take away here is the police can lie about practically anything.

Here are some common scenarios where a lie from a police officer tends to dupe those who don’t know better.

1. False Confessions: As mentioned above, it’s pretty common for cops to mince words and put one person against another. They expect emotions to run high, and for the other person to automatically implicate the other, and in doing so, implicate themselves. It sounds ludicrous, but it works surprisingly well.

2. Better Sentence: Cops may also insist that by cooperating a suspect will get a better sentence or may not even wind up being charged at all. Let’s clear up some air about that – the police probably know better than to promise a better sentence, because they have been trained to know that would be illegal (more about that later on).

More importantly, the police have absolutely no power to charge anyone (that’s up the district attorney), and they certainly have no final say in what sentence someone receives (that’s up to the judge). The police simply enforce the law and make arrests when the law is broken, and believe me, they are good at that.

3. Other Suspects: It is not uncommon for law enforcement to insist that a person who is a suspect is not the only suspect, or not a suspect at all, and that this conversation is simply to help them figure out the whereabouts of the “real bad guys.” Again, police enforce the law and arrest people, and someone who is being interrogated or questioned by the police wouldn’t be unless they were at least suspected of one thing or another.

4. “Off the Record”: First of all, this may not technically be a lie because there is no “record.” A record isn’t exactly officially created until the questioning is done under oath. Which, even if a police officer turns off a tape recorder and video camera, is absolutely what they will do after they are arrested and they are called in to testify at the defendant’s preliminary hearing: give statements under oath.

Are There Any Limits?

Fortunately, yes. Unfortunately, they are vague and narrow. Without getting into the legal definitions of how far is too far, the main consideration is whether or not a lie or series of lies was coercive. In other words, if a police officer makes definitive assurances, or anything leaning towards beneficial treatment or situations unrelated to the crime itself, the lie may have gone too far and the confession will be no good.

For instance, a New York Court of Appeals has recently said that where a defendant’s free will is completely overwhelmed, lies stop being lies and become something worse. In one of those cases, a man was being interrogated in connection with the murder of 4-month-old son. He was told “67 times that what had been done to his son was an accident, 14 times that he would not be arrested, and 8 times that he would be going home.” However, most astonishingly, he was told that he needed to explain to the police how the accident happened so doctors could save his son’s life, despite that fact his son was already dead. Ultimately, while many of those assertions on their own did not taint the confession, the totality of all of those statements taken together was coercive that the defendant’s free will was deemed to be entirely destroyed.

Still, If I’m Innocent, I Have Nothing to Worry About. Right?

This perhaps the biggest lie of all. Innocent people wind up confessing to things they did not do all the time. Moreover, even if an innocent person doesn’t confess to a crime, it’s remarkably easy to implicate yourself, even if you are completely without fault. For example, a tall man fits a description of a bank robber, is arrested and questioned, and because he knows he is innocent, he tells the truth and admits to being in the bank, near the time of the robbery. He doesn’t need to admit to committing the crime to have already established more than enough probable cause – with perfectly innocent, legal behavior – to charge him. His situation starts to look worse if he starts answer questions about his financial troubles, all in the name of being innocent and wanting to cooperate.

And one more thing – memory is fickle. It isn’t uncommon for a blue shirt one day to become a yellow shirt another day; if someone if completely innocent buys into a law enforcement lie about “being innocent means nothing to hide” or “off the record, help us out with other suspects,” gives some information, and is later called in for more questioning or to testify and gives different statements, that innocent person is looking a lot like a guilty suspect.

What’s the Right Thing to Do?

Always tell the truth, even if the cops don’t. Ultimately, the specific “right thing to do” depends on many, many more factors than lying cops. However, at the end of the day, being honest is never a quality that makes a person look bad.

But in addition to telling the truth, it’s important for people to know their rights. It’s not against the law or being uncooperative to politely tell a police officer that their questions feel accusatory, irrelevant, or are just uncomfortable. From there, it’s usually best practice for a person being questioned to ask if they are a suspect and under arrest. Depending on the answer to those questions, we shouldn’t be afraid to tell law enforcement that if they are going to ask anymore questions, or make anymore statements (truthful or not) they will have to do so to a lawyer.

Police Need a Warrant to Search Your Cell Phone

In 1973, the U.S Supreme Court held that police do not need a warrant to look inside a pack of cigarettes found in the pocket of a man who had been arrested. This decision was decided for the safety of an officer and to prevent concealment or destruction of evidence.

police need a warrant to search cell phonesJump forty years later to 2014. In the case Riley v. California, the U.S Supreme Court unanimously ruled that the police need search warrants to search the cell phones of people they arrest. This decision was made to help define the Fourth Amendment, which affirms “the right of people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures” in absence of a warrant.

This decision determined that a person’s cell phone contains more information than a person’s house. A person therefore has a “reasonable expectation of privacy” for the contents in their phone and police should not be able to search an arrestee’s cell phone without voluntary consent or a valid search warrant.

The U.S Supreme Court’s ruling makes total sense in regards to today’s high technology and the arrival of the smartphone. Nine out of ten adults in America own a cell phone and an average person has 33 apps installed. These apps contain email, pictures, bank records, intimate conversations, medical data, and GPS information.

Although officers can generally search any container within an arrestee’s car, a cell phone bears little resemblance to traditional containers. Allowing the police to freely search a person’s cell phone without a warrant would be a significant invasion of privacy, which is excessive and unreasonable under the Fourth Amendment.

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Police Dogs Evoke New Controversy in Marijuana-Friendly States

From detective show dramas to Jay-Z lyrics, drug-sniffing dogs have become a widely recognized aspect of police work. In the past, these highly trained dogs have been bestowed not only with accolades from law enforcement, but legal status from the Supreme Court as not being an invasion into one’s expectation of privacy, and thus not a “search” for Fourth Amendment purposes.

police dogBut all of that may be changing soon.

Last year, the Supreme Court limited the use of drug sniffing dogs at private residences. While this doesn’t change their ability to sniff freely away at luggage or around cars, the police will need to meet a higher standard of probable cause (or your consent) before letting their dogs get their nose in your business at home. This development was rather monumental, considering that since the 80s police have been able to use police dogs to aid in searching for drugs with limited inhibition.

While limiting the use of dogs will likely not put them out of jobs, states that have legalized marijuana are forced to examine what place, if any, these pooches have with a police force. In Colorado, for example, where persons 21 years and older can legally posses 1 ounce of pot, the K9 units are put in a difficult position. For example, if a police dog alerts an officer to drugs on a person who is lawfully in possession, and that trigger leads to an unconstitutional, seizure, search, or arrest of that person, the police department faces potentially costly liability from violating that individual’s civil liberties.

This may not seem like too big of an issue since it there are many illegal drugs other than marijuana that dogs can detect. This fact, however, only makes the problem more complicated. Police dogs cannot be trained to differentiate between types of drugs by using different triggers. All the dog can do is bark, scratch, and dig when it detects a narcotic. A dog cannot be trained to roll over for cocaine, jump for methamphetamine and sit down for marijuana. The trigger is the trigger, and if it could have been set off by a legal substance, the officer ostensibly lacks probable cause to search. In essence, if someone is possessing several pounds of cocaine, which is illegal, and an ounce of marijuana, which is legal, a competent defense lawyer could get all of the evidence suppressed and the charges dismissed.

There are ways around this conundrum. In Washington, some police forces have stopped training new dogs to detect marijuana. The skill is simply not desired as marijuana is taking a lower priority to other more harmful narcotics. However, the question still remains: What will be done with the older dogs? They can’t unlearn smelling marijuana, and utilizing them for drug sniffing purposes may expose the police force to a myriad of lawsuits and complicated legal issues. Furthermore, even putting the dogs to work in other contexts, like bomb searches or searches for people near residences, may still lead to false triggers for drugs and therefore the potential for liability.

Moreover, these issues raise the question of whether we be using these dogs for drug searching purposes at all? Experts—and even advocates of drug sniffing dogs—admit that there is an alarming frequency of “false alerts,” where poorly trained officers and dogs essentially create probable cause by causing the dog to respond to their hand and not the presence of illegal substances.

These considerations, coupled with the developments in the legal landscape surrounding drugs and dogs, conjure an age-old question: can you teach an old dog new tricks?

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“Contempt of Cop” – The Law of Standing up to Police Officers

“Contempt of cop” is a popular phrase floating around the Internet lately. A play on words created by police officers and civil libertarians, the phrase describes a situation where a citizen disrespects the authority of law enforcement–from the perspective of law enforcement. Despite the connotation, contempt of cop is not actually a crime. In fact, it should probably be encouraged.

contempt of copA good demonstration of this law concept comes in the form of a YouTube video posted in July of 2013. A young man rolls through a DUI checkpoint on the 4th of July, where he encounters several ornery sheriffs. One sheriff wants him to roll his window down further—which, judging by the video, is not necessary—and when the young man refuses, he is ordered over to what is presumably a section where officers order detainees for further screening (which the officer arguably did not have suspicion to do so).

As the video progresses, the officers’ frustration over the young man’s entirely lawful reactions and responses to aggressive police behavior and questionable investigatory techniques ultimately lead them to bringing in a K-9 Unit, which produces a “false trigger,” which gives them cause to search his car. With the camera still rolling, the original sheriff, while conducting what is very arguably an unlawful search (particularly in context of what he will say next), is recorded saying, “He is perfectly innocent. He knows his rights. He knows what the Constitution says.” Then continues to search anyway. Once the officers notice they are being filmed, they turn the camera over. The search expectedly does not turn up anything illegal, and the ordeal ends.

While many of these contempt of cop videos demonstrate that citizens have a slightly misinformed or inaccurate understanding of the particulars of the law, the same lack of knowledge of the law is demonstrated by the officers. Both parties in these videos occasionally just seem to rattle off buzzwords in an attempt to intimidate the other party. Ultimately, however, they inspire an important thought: the more citizens challenge officers, the more citizens and officers should be compelled to educate themselves.

But how far can contempt of cop go? While in law school, I remember hearing of a young San Francisco man who was arrested after a police officer didn’t believe the name he was giving him, so he asked the cop “What if I tell you [my name is] f*** you?” During closing arguments, his lawyer astutely pointed out that “It is not a crime to have a smart mouth.” The young man was ultimately acquitted. While being rude to a cop is never recommended, this case illustrates an important concept—your rights are your rights, and no one, especially not the government, can take them away from you simply because you have insulted them.

It goes without saying that the safety of police officers and their ability to conduct their job without opposition are incredibly important. However, that does not mean that police officers are bestowed an unlimited amount of power and authority. When they are abusing their position in order to cut corners—or violate constitutional rights—citizens absolutely should not be afraid to be in contempt of cop and speak up.

However, I’d like to see this phrase go away, because in essence, this whole concept of contempt of cop is simply citizens exercising their constitutional rights. And unfortunately, as demonstrated by the case of the young San Francisco man, occasionally exercising those rights come with a price. It is not uncommon for those questioning an officer’s authority to be tagged with a citation or perhaps an arrest. While there is some solace that calmer, more legal heads will prevail, and these charges will likely go away, it is a cold comfort.

The simple fact of the matter, however, is that the First Amendment and the Fourth Amendment protect some very important rights, and an increased awareness of what those rights are is ultimately better for everyone—citizens and law enforcement alike.

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