[This blog entry is one of 5 dealing with legal issues facing men who cruise for sex. Attorney's John Duran and Mark Foster who have a history of defending cruisers responded to a series of questions from Cruising for Sex in preparation for this blog. Additionally, Foster is moderating a forum to field questions on this topic. Follow this link to the forum: http://web.cruisingforsex.com/bb/forumdisplay.php?s=&forumid=167.]

Cruising for Sex: What right does a person have to be walking in a public park? Can a police officer stop this person and make a demand of them, and if so, under what circumstances? How would you advise the person to respond in such a situation?

Mark Foster and John Duran: A person has every right to be any legal place he wishes. This is, after all, a nominally free country. A public park is for public use, including walking, jogging, sunning, lounging, or meeting people. Even inviting new friends home to get to know them better. The finding of sodomy laws as unconstitutional means sexual relations between men in private is legal throughout the U.S. Solicitation to perform a legal act is also legal.

Per the United States Constitution and, specifically, the Bill of Rights, a police officer cannot detain or search an individual but on probable cause to believe that the individual is involved in criminal conduct. However, a police officer may stop a person merely upon “reasonable suspicion.” The breadth of this can be truly amazing. In the course of such a stop, the officer can frisk the individual, ostensibly for the officer’s safety. It is remarkable how many times other contraband happens to be found during these “stop and frisk” encounters. We have personally heard a police officer testify, at a preliminary hearing, that he searched our client’s Altoids tin because maybe a .22 caliber pistol was in there! None was, but drugs were. Keep anything incriminating off your person, and out of your personal affects, including backpacks.

Resist the temptation to cooperate. Be a patriot. Uphold and assert your constitutional rights. Always remember the constitution is not to protect the rights of the majority or the innocent. It is to guarantee the presumption of innocence. The mob doesn’t need the constitution --- it already has the numbers, the votes, the pitchforks, and the torches. Reasonable inquiries deserve reasonable responses. You are under no obligation to incriminate yourself.

There is one probable reason a police officer has chosen to talk to you: He wants to arrest you. Perhaps he saw your rainbow flag decal, or thinks you “look gay.” Maybe he’s just bored and curious. Whatever the reason, he has made the decision to accost you. The best you can hope for is to escape unscathed. Think how you would respond to a belligerent drunk: Be polite, noncommittal, and disengage as quickly and smoothly as possible. If he presses, ask if you are being detained. This is a legal term of art; you are asking if you are free to leave. If you are not free to leave, you are being subjected to a custodial interrogation: say nothing further and request to speak with your lawyers. If you are free to leave, do so. Do not agree to stay or cooperate; make the officer detain you, if he is inclined to do so. One fairly recent case held that an individual, questioned for about 7 hours (!) by the police, had chosen to stay and cooperate and “volunteered”; he had not been detained, and therefore could not invoke his constitutional rights in his defense.

Legal Issues Series:
Part 1 The Right to Be In a Public Park
Part 2 Your Rights In a Rest Area, Public Toilet, or Mall
Part 3 Your Rights When Encountering a Police Officer, Security Guard
Part 4 What Is Entrapment? How Not to Become a Victim To It
Part 5 Your Rights to Have Sex in Video Arcades and Theatres

CONTACT INFO FOR DURAN AND FOSTER:

Duran & Thomas, LLP
9200 Sunset Blvd., Penthouse 2
Los Angeles, CA 90069
(310) 276-5297
JDuran@DuranandThomas.com

Duran & Thomas, LLP
777 East Tahquitz Canyon Way, Suite Suite 200-58
Palm Springs, CA 92262
(760) 864-1400
MFoster@DuranandThomas.com