It is just about impossible to enter a music festival, concert, rave or any kind of a major sporting event these days without being searched as a condition of entry.
This isn’t likely to change. If anything, the trend is towards more security at big events. For example, Electric Zoo recently announced new security measures including drug-sniffing dogs stationed at all entrances and the use of undercover narcotics officers to patrol the festival grounds.
Obviously, festivals need to be able to search folks for weapons and keep people safe. But what about the festival goers? Do you have any rights if a search goes too far or you run into an abusive security guard? Or did you give them all up at the entrance?
Here is some legal knowledge (and practical tips) that can help you navigate that entrance search.
TIP #1: KNOW YOUR RIGHTS
In general, The 4th Amendment prohibits the police from randomly stopping you and searching you.
If you are stopped at a festival, I’ve advised people to ask the question “Am I Free to Leave?” to determine if they are being detained. If you are detained, you should never consent to a search of your person or property by the police. Instead, keep calm, show your ID and continue to ask if you are free to leave. You should always insist on your right to remain silent and ask for a lawyer. Whenever possible, have your festival buddy witness or document the encounter.
From a legal standpoint, you clearly have these rights once you have passed through the entrance search. But what rights apply when you first are searched entering a fest?
TIP #2: SEARCHES BASED ON TICKET LANGUAGE ALONE ARE GENERALLY ILLEGAL
Almost every festival has ticket language and signs at the entrances stating that you are agreeing to be searched as a condition of coming into the venue. For example, here is Electric Zoo’s ticket language:
“Your use of the ticket is contingent upon your unconditional and voluntary acceptance to be searched…prior to your admission to the venue and/or at any time thereafter.” (Electric Zoo)
This is what is called an “Implied Consent Waiver”. “Implied” meaning that you knew you were going to be searched and decided to come in anyway.
Here’s the thing. Courts really don’t like any kind of an “implied” waiver of Constitutional rights. In fact, courts often throw out these kind of implied waiver searches when they are challenged by festival goers.
Courts look at several factors to determine if an implied consent search is legal:
1) Did the sign and ticket language make it clear you were going to be searched?
2) Were you deprived of a benefit if you refused to be searched?
3) Did you know you had a right to refuse to be searched?
4) Did you demonstrate “affirmative conduct” agreeing to be searched?
5) Was the search necessary to a “vital interest” of the festival?
The point is, it is NOT legal to for festivals to just put up a “You agree to be searched” sign up at the entrance and then conduct a blanket search without any limitation. The courts instead look at what is being searched for, what you agreed to in your ticket and how the search is being conducted on a case by case basis.
TIP #3: “LIMITED” ENTRY SEARCHES FOR A “VITAL SAFETY INTEREST” OF THE FESTIVAL (LIKE PAT SEARCHES FOR WEAPONS) ARE GENERALLY OKAY
Normally, private security has a right to conduct a reasonable search on you as a condition of entry BEFORE entering private property if they are looking for weapons. This probably isn’t a constitutional violation as long as it’s made clear to you that you’re free to walk away.
Courts have long recognized that festivals have a “vital interest” in keeping their patrons safe from weapons and other dangerous items knuckleheads might bring in. Because of this, courts have allowed “limited” searches if they are for the purpose of looking for weapons and projectiles and dangerous items. (“Limited’ meaning a pat down search for large/hard objects or screening through a metal detector.)
That’s reasonable right? I mean, I love music festivals. But I REALLY love the festival and EDM community and want people to be safe. Any responsible festival goer should want a safe place for all of us to play. Even if this wasn’t the law, I’d agree to a “limited” search like this because nobody has any business bringing a weapon into our space.
(Fun fact: The song “Smoke on the Water” by Deep Purple refers to a fire started during the Montreaux Jazz festival by “Some stupid with a flare gun.”)
TIP #4: OVERLY “INVASIVE” PERSONAL SEARCHES ARE NOT OKAY
In State v. Iaccarino, 767 So. 2d 470 (Fla. Dist. Ct. app. 2000) the Court struck down “invasive” entry searches at the “ZenFest” festival. (“Invasive” is legalese for “Wait, you touched people where?”)
I mentioned above that festivals have to show that their entrance searches are being done for a “vital interest” of the festival to be found legal.
In this case the court rejected the idea that keeping drugs out was enough of a “vital interest” to allow this level of intimate and personal searching:
“If this court permitted the illegality of the substances themselves to rise to the level of “vital interests,” then a similar sign posting would justify any search of any person at any time and to any degree. For example, such a “vital interest” could seemingly justify a search at a high school football game, where each student, teacher, and parent could be directed to take off shoes and socks, pull out their bras, empty their pockets and the contents of wallets, and have their crotch and genitals frisked.”
In other words, courts draw a distinction between limited searches for weapons and “invasive” personal searches for drugs.
Part of the problem in Iaccarino case was how far they were going in these searches. They were basically treating the patrons as if they were being booked into a jail. Searches included things like “genital taps” and “crotch frisking”(!?) (Which probably is not nearly as much fun as the name suggests.)
As a practical matter, often it’s not clear whether the searcher thinks they have the right to search you in a more personal way or if they are asking for permission to do so.
Asking in a calm, polite way, “Are you asking for my permission to search further?” or “ Do I have a choice to be searched in this way?” can clarify if you are being “ASKED” for a further search or being “ORDERED” to submit to a more invasive search. You can then make an informed choice as to how to handle that situation.
TIP #5: SO FAR, FESTIVAL ENTRANCES HAVEN’T BEEN DECLARED A “4TH AMENDMENT FREE” ZONE LIKE AN AIRPORT
There are certain places where courts have said the danger of terrorism is so high you are essentially entering a “4th Amendment free” zone and can be searched at will. The most typical example is an airport.
In a 2006 Valparaiso Law Review article the author recaps all the cases I mention above and notes that currently there is no legal way to randomly and invasively search people entering a sporting event.
Rather than thinking, “Oh that must be because WE FREAKING LIVE IN AMERICA” he argues that these cases are old and that after 9/11 we should start treating festivals and sporting events like airports.
In fact, the TSA has already assumed that festivals are like airports and sent its VIPR units out to randomly search festival goers.
A conservative court in 2014 might agree with this logic and treat festivals and sporting events like airports. Or after all of the overdoses we see at events a court might change its mind and now consider searching for drugs a “vital interest” for festivals. But it’s important for festival goers and promoters to understand that is NOT the law currently.
TIP #6: ACT LIKE A FESTIVAL PRO
You can improve your experience navigating these searches by adjusting your attitude and demeanor. I call it “acting like a festival pro”.
Keep the line moving. Be attentive. Have your ID out and ready, purse open, pockets empty, etc. Maybe skip the “Hey buddy, this is the most someone has touched me all week” joke they’ve heard a million times.
First impressions are important – The security guard will subconsciously make a split second decision about you. Paint the picture you want them to see. Present yourself in a non-threatening manner. Make eye contact. Be friendly. SMILE. Heck you are about to go into an awesome life experience, why wouldn’t you be smiling?
I always show deference to the security staff and say things like, “How are you doing today, sir?” Remember, they are people too and they are just doing their jobs. Many times the staff will be attending the festival too, and they aren’t trying to make your life difficult. You can be calm when you know in the back of your head that if something goes wrong you know your rights and how to enforce them.
And of course, don’t bring in dangerous items to the festival (do I really need to list that?)
TIP #7: IN PRIVATE SECURITY SEARCHES ASK TO BE “EJECTED” RATHER THAN ARRESTED
The 4th Amendment prohibiting unreasonable searches and seizures normally only applies to private security guards when they are acting as “agents of the government.”
To decide this, courts look at whether there is such a coordinated effort between real cops and private security that they are the same. (Things like a unified command structure, same communication system, coordinated arrests etc.)
The bad news is that if private security officers aren’t found to be “government agents,” you can’t get a judge to throw out the evidence against you in a criminal case.
Technically, a private security guard only has the right to arrest you the same way a private citizen does. (A so called “citizen’s arrest”). What I’ve seen as a practical matter is that private security will typically do the initial search and then call the real police in if they find something interesting.
But there are cases that say that private security is only allowed to search you for the purpose of deciding if you should be ejected or allowed in. And if you have something you aren’t supposed to, you can withdraw your consent and ask to be ejected instead.
The Nebraska Supreme court talks about this in a case called, State v. Smith, 782 N.W.2d 913 (Neb.2010)
“The State argues that Smith impliedly consented to the search because he was aware that Club patrons were subject to a pat down and search. That may have been the case when Smith got in line, but Smith withdrew his consent before his pocket was searched. The Club may have been free to turn him away but it was not free to turn out his pockets.”
If private security feels something in your pocket and asks to see it…you don’t have to show them. Respectfully and politely say,
“I am withdrawing my consent to any search. I am asking that I be ejected and my ticket price refunded.”
TIP #8: DRUG DOGS SUCK – AVOID THEM
Here’s the thing, you don’t have a lot of rights when it comes to drug dogs. In Illinois v. Caballes, the Supreme Court ruled that police do not need reasonable suspicion to use drug dogs to sniff a vehicle during a legitimate traffic stop.
The Supreme Court followed that up with the outrageous Florida v. Harris case. Here, the Court rejected the idea that police should have to show that drug dogs are reliable evidence finders but just need to show they had the proper training.
Which is unfortunate because these dogs are not reliable. In their dissenting opinion of Caballes, Justices Souter and Ginsburg pointed to studies showing that drug dogs frequently return false positives (12.5-60% of the time, according to one study). In fact, a Chicago Tribune field study revealed that drug dogs are more often wrong than they are right when alerting for drugs in vehicles.
This poor track record can be due to poor handlers, poorly trained dogs or even there can be officers who train their dogs to falsely “alert” on suspects.
There aren’t many tips to handling drug dogs but my friends at “Flex Your Rights” list a few here.
TIP #9: HANDLE INAPPROPRIATE SEARCHES POLITELY BUT FIRMLY, GET A SUPERVISOR INVOLVED
If you run into a private security guard who is conducting an overly invasive or inappropriate search, alert a supervisor. Have a friend with you document the encounter and let the supervisor (as well as the festival promoters) know that you have been handled in an inappropriate fashion. Most festivals take these allegations seriously and will act to fire unprofessional security guards.
Politely but firmly object to any violation of your body. Simple statements of fact are probably best
Example, “What you are doing is making me uncomfortable and I you want you to stop. I want to see a supervisor.”
If you are not getting any satisfaction from the festival or the promoters, consider warning others about the bad behavior of this particular fest. (I had a follower suggest tweeting the hashtag #myboobsmybody to call out festivals if they become “Gropefest 2014”)
TIP #10: COMBINATION ANNOYING LEGAL DISCLAIMER AND HELPFUL LEGAL BRIEF
I am a lawyer, I am just not YOUR lawyer. My Facebook page lists me as a “Fictional Character.” That’s because it’s best to see me as sort of a combination legal resource/legal spirit guide/festival consigliere rather than someone giving you specific legal advice.
So, I can’t give you specific legal advice. But what I can do is provide a resource for you.
The awesome members of the #festlaw crew researched a lengthy brief that might be a good resource for your attorney if you are ever have the misfortune of being arrested for any sort of low level, non-weapon situation. I’ve included it here as a resource. You may reproduce fully and in any manner you or your attorney sees fit.
So, as your Legal Spirit Guide, I advise you, as always, to make good decisions, party smart, and help each other out. YOU are what makes this community so great, and I expect to see you all smiling and hi-fiving me at your next festival.