Monday, April 23, 2007

When heading out to the Wakarusa Music & Camping Festival this June, it might be a good idea to pack more than your sunscreen, shades and usual camping gear.

Legal experts are suggesting you also take along a healthy knowledge of your rights-even if you aren't planning to do anything illegal.

When nine local, state and federal law enforcement agencies converged on the four-day festival last year to sniff out illegal activity, local ACLU president Phil Minkin says he fielded a slew of complaints from all kinds of festivalgoers who claimed their civil liberties had been ignored.

"It was almost a perfect storm of circumstances that led to several things that were questionable as far as civil liberties go," he says.

With enforcement plans nearly the same this year, save for a couple of important exceptions-no plans for a drug checkpoint off I-70 or the high-tech hidden cameras used last year-the ACLU is making plans to have lawyers on hand at the festival to answer legal questions as they arise.

The group is also holding a panel discussion this week with local authorities and legal experts to examine privacy rights of festival attendees.




Wakarusa 2006: Live from Shakedown StreetFeaturing interviews with festival attendees fresh from interactions with police and security-including on girl who says her tent was opened by an officer while she was sleeping with her boyfriend.

But the issue of privacy rights can become somewhat murky in the field, and what police have a right to do is often a matter of legal interpretation sorted out after the fact.

For example, what privacy rights do you have if you're in a tent? Are they the same as if you were in your home? Or are they closer to if you were sitting out in the open?

"It gets confusing," District Attorney Charles Branson says. "Fourth Amendment search and seizure law is a huge area, and the differentiations between the different areas of the law are immense. You look at just the regular handbooks written on just the issues of search and seizure, you're talking hundreds of pages."

Still, Minkin says, there are basic rights everyone attending the festival ought to know.

No fun in Kansas

Douglas Bragg describes a militant attitude taken by authorities at last year's festival, where he claims he and his friend were unfairly searched before they were kicked off the grounds.

Bragg, 28, of Eugene, Ore., sells glass pipes and jewelry at festivals and concerts around the country, and was doing so without a license last year after having a good, hassle-free time doing the same thing in 2005. After one day of vending, he says, authorities told him and other venders to put their pipes away.

Past Event

ACLU Forum: "Wakarusa '07: Privacy Rights in Public Places"

  • Wednesday, April 25, 2007, 7 p.m.
  • Lawrence Public Library, 707 Vermont St., Lawrence
  • All ages / Free

More

He says he and his friend took the pipes off display, but posted a sign that said "ask us about glass pipes," which authorities didn't have a problem with during the day. But at night, he says, when there was a line shift, an officer asked to look in his case. He opened the case and the officer confiscated the pipes, then opened a second case in the back of his friend's truck and took those pipes as well, he says.

After returning to the campsite later that night from the concert grounds, he says an officer approached him with a flashlight while he and his friend were sitting in lawn chairs next to the truck.

He turned around, he says, and a group of about five officers were in his friend's truck. The pipes were kept in padded rifle and handgun cases, he says, and the authorities looked through those and searched the glove compartment and their camping gear. When his friend asked what was going on, he says, officers handcuffed him.

photo

Kansas Highway Patrol search the truck of Douglas Bragg in the campgrounds of the Wakarusa Festival, 2006.

Authorities found a small amount of marijuana and a pipe that had been smoked out of on his friend's body, Bragg says, and told them they had to leave the festival, but didn't arrest either of them.

"It was the first time I'd ever been kicked out of a show in my life," Bragg says, repeating that he's sold pipes at hundreds of shows nationwide. Will he be returning this year? "We'll drive up to Alaska to avoid Kansas," he says.

It would be unfair to pass judgment on whether authorities lawfully searched Bragg and his friend without hearing the other side of the story. But while more than 80 people were arrested and more than $10,000 in cash and property was seized in connection with the festival a year ago, there is no count of how many people were searched-perhaps lawfully, perhaps not-and turned loose, like Bragg.

The Fourth Amendment

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Your rights

Courts have ruled that the Fourth Amendment-which guards against unreasonable searches and seizures-generally comes into effect when someone's "expectation of privacy" has been breached.

Courts follow a simple, two-part test to determine whether the expectation of privacy is met:

1)the individual has exhibited a subjective expectation of privacy

2)society is prepared to recognize that this expectation is objectively reasonable

If this expectation is met, law enforcement must have "probable cause"-reasonable belief that a search will uncover contraband or illegal activity-to search, and must attain a warrant.

But there are exceptions to the warrant requirement. An officer doesn't need a warrant to search when:

- contraband is in "plain view"

- there are "exigent circumstances"-an emergency situation when an officer reasonably believes that without a search someone could destroy evidence or cause harm

- illegal activities are conducted in an "open field"-any open field except land directly surrounding a house

Also, an officer does not need a warrant during a "Terry stop" (named for the 1968 Supreme Court case Terry v. Ohio). An officer can stop someone briefly when the officer has "reasonable suspicion" that someone has committed or is about to commit a crime.The officer has a right to search someone for weapons if that person poses a threat. "Reasonable suspicion" requires less evidence than "probable cause," but probable cause is needed for arrest.

Room for interpretation

Ask two lawyers about when a police officer has a right to search you or your belongings at a festival, and you're likely to hear two different takes.

For instance: When does an officer have the right to enter your tent and search it?

That depends on what someone's "expectation of privacy" is in a tent at Wakarusa.

Rick Frydman, a local criminal defense attorney who has worked on-and is still working on-several cases from last year's festival, argues that someone may have the same expectation of privacy in a tent as in a house.

Branson, the district attorney, agrees that officers cannot simply barge into someone's tent without permission, but says the standard isn't quite the same.

"That would really depend on the circumstance," he says, "but if an officer was able to walk by and determine that illegal activity was taking place, I think it's a little bit different of a standard, because an officer can make an arrest of somebody that's in his presence committing a crime."

While not all arrests made last year held up in court-Branson says his office doesn't have numbers-Lt. Doug Woods of the Douglas County Sheriff's Office, who's coordinating law enforcement plans, says officers follow the same search procedures during the festival as under normal circumstances.

"What our guys do out there-whether it's Highway Patrol, Sheriff's Department or whatever-it's no different than what we do every day," he says. "It's just in a confined area. It's a small city out there."

The biggest mistake Frydman says people make is to give officers permission to search. As soon as you give permission, he says, you're waving your Fourth Amendment rights.

"I find that a lot of my clients, in situations where the police don't have the right to search their person, or don't have the right to search their car, or don't have the right to search their tent, they acquiesce and say, 'Yeah, that's fine,' " he says.

"When a cop's asking you, a lot of the time they don't really ask you, 'Can we, pretty please?' They use words that make it sound like they have a right to. What a person needs to know is not to waive your rights to privacy."

Skip Griffy, president of the Douglas County Criminal Defense Bar Association, who defended people charged at last year's festival, adds that if an officer stops you on a Terry stop, you are legally obligated only to tell the officer your name. Beyond that, you don't need to answer questions, and if an officer doesn't have a reasonable, articulable reason for keeping you in custody, you should be free to go.

"The bottom line is at some point you need to ask them, 'Am I free to go or am I being detained?' " he says. "And if they tell you you're being detained then they need to give a reason for that detention."

A friendlier festival

Woods, of the Sheriff's Office, says there are no plans for a drug checkpoint as people exit the interstate, like last year. And the $250,000 of hidden-camera, night-vision and thermal-imaging equipment used as part of a free demonstration from a California company will not be back-although he says authorities may use routine surveillance to bust drug deals.

Still, the police presence of last year is here to stay, he says, after the festival was greatly understaffed in its initial years, including when a festivalgoer died of a drug overdose in 2005.

"We made a determination that we cannot be overwhelmed to the degree we had been for the prior two years," he says. "We need to be able to keep somewhat of a control. Even with the number of officers we have out there, if it gets really bad, we're taxed. We can be overwhelmed."

Past Event

Wakarusa Music & Camping Festival 2007

  • Thursday, June 7, 2007, time TBA
  • Clinton State Park, Clinton Lake, Lawrence
  • All ages / $119 - $435

More

Festival promoter Brett Mosiman says that while he has no authority over how law enforcement acts, he's working with them and preaching a friendlier, more hospitable atmosphere this year.

"These people have come a long way," he says. "They've chosen to spend their vacation and spend their money in Kansas, and it's incumbent upon all of us to treat them well."

This includes the behavior of the more than 100 security guards contracted from Oklahoma, Philadelphia, Boston and Kansas City, who search people at the gates and enforce the rules of the festival.

"You just don't get physical or verbally abusive with anybody unless your immediate safety is endangered, which we don't anticipate it will be," Mosiman says. "Generally, we're looking for a much more relaxed and harmonious environment."

If you're stopped for questioning:

¢ Refusing to answer can make the police suspicious about you, but it's not a crime to do so, with one important exception:
¢ The police may ask for your name, and you can be arrested for refusing to give it. You must show your driver's license and registration when stopped in a car.
¢ What you say to the police is important-and it can give the police an excuse to arrest you, especially if you bad-mouth an officer.
¢ Police may "pat-down" your clothing if they suspect a concealed weapon. Don't physically resist, but make it clear that you don't consent to any further search.
¢ It is not lawful for police to arrest you simply for refusing to consent to a search.
¢ If you DO consent to a search-of your person, car, house, tent, etc-it can affect your rights later in court. If the police say they have a search warrant, ask to see it.
¢ Do not interfere with, or obstruct the police-you can be arrested for doing so.
¢ If you're given a ticket, you should sign it; otherwise you can be arrested. You can always fight the case in court later.
¢ Ask if you are under arrest. If you are, you have a right to know why.

If you're arrested or taken to a police station...

¢ You have the right to remain silent and to talk to a lawyer before you talk to the police. Tell the police nothing except your name and address. Don't give any explanations, excuses or stories. You can make your defense later, in court, based on what you and your lawyer decide is best.
¢ Ask to see a lawyer immediately. If you can't pay for a lawyer, you have a right to a free one, and should ask the police how the lawyer can be contacted. Don't say anything without a lawyer.
¢ Within a reasonable time after your arrest, or booking, you have the right to make a local phone call: to a lawyer, bail bondsman, a relative or any other person. The police may not listen to the call to the lawyer.
¢ Sometimes you can be released without bail, or have bail lowered. Have your lawyer ask the judge about this possibility. You must be taken before the judge on the next court day after arrest.
¢ Do not make any decisions in your case until you have talked with a lawyer.
-Highlights from "Know your rights" produced by the American Civil Liberties Union. Download the full text. (PDF)