Guide to Limits on Police and Law Enforcement Actions in the U.S.

PoliceHere are the most important laws you need to know about interacting with the police, police conduct and police misconduct. These rules on “police work” generally apply to all levels of law enforcement, including FBI, NSA, your local police, etc. However, your state may have additional rules. For example, see our Guide to Police Action in California.

Laws regarding police conduct are very complex, involve many specific rules, and change frequently. If you feel that any your rights (whether listed below or not) have been violated, we strongly urge you to find a lawyer who specializes in criminal and constitutional law.

1. Recording police conduct

Do I have the right to take video of police?

Yes. You have the right to take video or photos of police officers in public spaces, and the police may NOT interfere with your recording (unless you are physically obstructing police work).1See DOJ Civil Rights Division memo of May 14, 2012

2. Offensive Language or Conduct toward police

Is it illegal to be rude to the police, or say or do offensive things to them?

In general, no it’s not illegal to do this (although you will likely get more unwanted attention from the officers by doing so). For example, one police officer gave a woman a more serious violation simply because she “flipped him off” (gave him the middle finger). The courts ruled that the officer had no right to do so, as her actions were protected by the 1st amendment.

See more about Free Speech.

3. Right to be on sidewalk

Are the police allowed to kick me off the sidewalk?

As long as you are not blocking the flow of traffic, you generally have the right to be on a public sidewalk or to peacefully gather with others on public sidewalks, and police may not unreasonably restrict this right.2U.S. Constitution, 1st AmendmentCox v. Louisiana, 379 U.S. 536, 554 (1965); Frisby v. Schultz, 487 U.S. 474, 480 (1988)

But some cities attempt to restrict this right. Is that constitutional? It’s unclear.

To march or assemble on the streets or roads, you will usually need to get a permit with the city.

4. Police searches of you

Can police search me any time they want?

No. You have the right to be free from “unreasonable” searches by the government/police of your body or anything you are wearing, your car, your home, and some other personal areas. This essentially means that before law enforcement is allowed to search you, they must believe it is more likely than not that you have committed some crime and that evidence of that crime will be found in the search (the legal term for this is “probable cause”). But keep in mind, a “pat down” is not considered a “search” (see below).

IF the police have “probable cause” to believe you committed a crime or they will find evidence of a crime, then they generally (exceptions below) must get a warrant in order to conduct a search.

How does a police officer obtain a warrant?

A police officer obtains a search warrant by convincing a judge that he will likely find evidence of a crime in searching you. 

When does a police officer need a warrant to search me?

In general, police must have a search warrant to search you, but there are many exceptions to this requirement.34th amendment, see Brinegar vs U.S. (1949)

Specifically, some of the situations police ARE allowed to search you without getting a warrant include:

  • any kind of surveillance that an average citizen could do, including use any technology that an average citizen could possess4Katz v U.S., Kyllo v U.S.
  • searching (and taking) your garbage, once you put it on the sidewalk or street5California v Greenwood
  • a police dog sniffing you6Place v U.S.
  • a radio transmitter or “beeper” that monitors someone’s movement along public roads7U.S. v Knotts (but not in private areas, and not a GPS tracker – see below)
  • where you do NOT have a “reasonable expectation of privacy.” This means the police can generally view and take photos or video of you or anything you do in public, or anything which is visible from a place where law enforcement is legally allowed to be, such as the street or sidewalk8see Katz v U.S., Hester v U.S., Oliver v U.S., California v Ciraolo; Horton v CA
  • “emergency” circumstances, such as when the police believe it is imminent that you are committing or will commit a crime or destroy evidence, or to protect the health and safety of others9Warden v Hayden; Minnesota v Olsen; Brigham City v Stuart
  • “stop and frisk” (see below)

Some of the situations police MUST get a warrant before searching you include the following (but these generally don’t apply in emergencies):

  • any kind of surveillance that an average citizen could NOT do, including use any technology that an average citizen could NOT possess, such as thermal imaging10Katz v U.S., Kyllo v U.S.
  • a radio transmitter or “beeper” that tracks your movements in private areas, such as your home11Karo v U.S.
  • installing a GPS tracking device on a car to monitor the vehicle’s movements.12Jones v U.S. (2012)
  • Searching the contents of your cellphone or computer, even if you are arrested, and even at a U.S. border crossing.13Riley v CA (2014); U.S. Const., 4th amendment; Federal district court ruling May 12, 2015 Note that a court may require you to give your fingerprint to unlock a device, but courts may NOT require you to give up a password or passcode.
  • Obtaining your cell phone location data from your mobile phone carrier.14Carpenter v U.S. (2018)
  • Searching your car (but if you are lawfully arrested, police may search the car, but MUST get a warrant to search the trunk)15NY v Belton; AZ v Gant; Knowles v Iowa
  • Hotel guest records16City of Los Angeles v. Patel, U.S. Supreme Court, No. 13-1175

5. Police taking your property

When can the police take my property?

You have the right to be free from “unreasonable” taking of your property by the government/police. This means that before law enforcement can take your property (in legal terms this would be a “seizure” of your property), they must believe it is more likely than not that you are committing or have committed a crime involving the property. In general, police must have a warrant to seize property,17A police officer obtains a warrant to seize your property by convincing a judge that the property is evidence of a crime or will lead to evidence of a crime but there are many exceptions, including if evidence of a crime is clearly visible (for example, drugs) or for public safety reasons.18U.S. Const, 4th am. See U.S. v Karo (1984)

There is also the controversial practice of “civil asset forfeiture,” in which the police may seize a person’s assets, without needing to charge the person with any crimes, if they believe that the assets themselves have been involved in a crime. But this practice of confiscating property is limited by the Constitutional protection against “excessive fines.”198th amendment; applicable to the states via Timbs v Indiana (2019)

6. Police arresting you

When can the police arrest me?

You have the right to be free from “unreasonable” arrests by the police. This means that before law enforcement can arrest you (in legal terms this would be a “seizure” of you), they must have a reasonable belief that it is more likely than not that you are committing or have committed a crime. If the police violate this standard, it is often considered “false arrest” or “false imprisonment.”

In general, police must have an arrest warrant20a police officer obtains an arrest warrant by convincing a judge that you have likely committed a crime to arrest you within your home, with some exceptions. Police do NOT need an arrest warrant to arrest you in public.21U.S. Const, 4th am.; See Payton v NY (1980)

7. “Stop and frisk”

What is Stop and Frisk and is it legal?

“Stop and frisk” occurs when the police stop you briefly and pat you down (sometimes called a “Terry” pat22based on the court case Terry v Ohio) for weapons or evidence of a crime. This is not legally considered either a “search” or arrest, but it does fall within the 4th amendment. Because it is considered less intrusive than a full search or arrest, police only need “reasonable suspicion” that crime is afoot to be able to stop you and pat you down.23U.S. Const, 4th am. See Terry v Ohio (1968)

8. Rights upon being arrested

What are my rights if I am arrested?

Upon being arrested, you have the following rights, usually24for exceptions see for example, Chavez v. Martinez, 538 U.S. 760 (2003) referred to as “Miranda rights” 25based on the case Miranda v Arizona:

  • Right to remain silent when the police ask you questions (because you do not have to incriminate yourself).26U.S. Const. 5th am.
  • Right to an attorney. If you cannot afford an attorney, the government will provide one free of charge.27U.S. Const. 6th am.
  • After an arrest, if police don’t formally charge you with a crime within a short period of time, they must release you.28U.S. Constitution, 6th Amendment

Miranda warning. Upon arresting you, police (usually) must explain these rights to you29This is based on the case of Miranda v Arizona

Do the police have to announce the reason for arrest at the time of the arrest?

It depends on the state. Unless your state has a specific law, police officers do NOT necessarily need to announce the reason for arrest.30Devenpeck v. Alford, 543 U.S. 146 (2004): “While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required.”

BUT a person arrested must be given a probable cause hearing, ordinarily within 48 hours of their arrest.31 County of Riverside v. McLaughlin, 500 U.S. 44 (1991); See, e.g., Fed. R. Crim. Pro. 5. The government will have to inform the suspect of the reason for arrest then, as the government has to establish probable cause based on a specific offense.

Can the government detain someone indefinitely?

If you are legally present in the U.S., it is illegal and unconstitutional for the government to hold you against your will for a lengthy or undetermined period of time without going through the proper criminal justice process. This is called “indefinite detention” and is a violation of the rights of “due process of law” (sometimes just called “due process”).32this would be a violation of the “habeas corpus” principle or “suspension clause” in the U.S. Constitution and the Judiciary Act of 1789, according to Immigration and Naturalization Service v. St. Cyr (2001), and Boumediene v. Bush (2008)

But the law is different for people in the country without authorization. See our Guide to the Laws about Immigration & Travel to the U.S.

What happens after I am accused of a crime?

See our Rights for People Accused of Crimes in the U.S.

9. Harassment by police & excessive use of force

Is it illegal for the police to harass me or “rough me up”?

In general, law enforcement may not use physical force against another unless necessary. The use of force is justified only in limited circumstances, such as to compel someone to submit to a lawful arrest, or for self-defense or to defend others. If police violate this standard, it may be considered a federal crime, and you could also potentially sue the officer AND the police agency where the officer works.3318 US Code 242; 42 US Code 1983 This is sometimes called “abuse of power” or “abuse of discretion.” See our post of an example where a man sued the NYPD under this law.

See more about police use of force here.

What’s the deal with police shootings?

When a police officer shoots someone, it may or may not be considered “excessive force.” It’s usually up to the jury to decide whether the officer acted “reasonably” under the circumstances. But in general, officers are entitled to “qualified immunity” when they do not act in such a way that has been clearly stated as illegal in prior court cases.34Kisela v Hughes

10. Sex with police officers

Is it illegal for police officers to have sex with someone in their custody?

As of February 2018 in 35 states it is NOT illegal for law enforcement to have sex with a person they have arrested or detained, as long as it is consensual. Only 16 states prohibit officers from having consensual sex with someone in their custody. Those 16 states are: California, Florida, New Jersey, Washington, Oregon, Alaska, Hawaii, Arizona, Utah, Oklahoma, North Dakota, Indiana, Ohio, Georgia, North Carolina, and Connecticut.

See the Feb 2018 Buzzfeed story on this.

11. Other

Do I have to carry ID at all times or show it to police?

It depends on the state. (For California, see our Guide to Police Conduct Laws in California)

What can I do if someone unjustifiably calls the police on me but I didn’t do anything wrong?

If a private citizen calls the police on you, knowing that you did not commit any crimes, you may be able to successfully sue that person for “malicious prosecution.” This is also sometimes called “abuse of process” or “abuse of civil process” or “wrongful use of civil proceedings.”

Is it illegal to lie to police?

Yes, this is usually considered the crime of “obstruction of justice.” Or if the lie is made while “under oath” or “under penalty of perjury,” then it can be considered the crime of perjury.

Is it illegal to file a false police report?

Yes, it is a felony to lie to police and say something happened when it did not. Law enforcement can charge this as “filing a false report” or more generally, “disorderly conduct,” or both.

In a recent example, Jussie Smollett was charged for his part in paying some people to pretend to commit a hate crime against him, and later filing a police report about it.

Further Information

Your state may have additional laws. For example, see our Guide to Police Action in California.

Exercise Your Rights

  • File a complaint with local police (possibly with a different police agency than the one in which the offending officer works) or the U.S. Department of Justice
  • Get legal help from a criminal defense attorney or civil rights attorney, or other options

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