Ford O'Brien, LLP

What is the Right to Know Act and does it apply to white collar investigations?

The New York City council passed the Right to Know Act back in 2017 and it went into effect on October 19, 2018. However, as of this year, many citizens are still unclear of their rights under the new law. If a police officer has ever stopped you and asked to search your person or your property without probable cause, or if you want to protect your rights in the event that an officer tries to perform an illegal search or seizure, this new law applies to you. As such, it is important you understand the protections the law affords you.

According to The New York Times, the Right to Know Act is a response to the increased use of aggressive stop-and-frisk tactics by officers of the New York Police Department. Per the act, a police officer may not search you without your consent and without legal justification. For instance, if a person has a concealed weapon on their person and walks down a dark alleyway but otherwise causes no harm, an officer cannot stop and question the individual unless he or she has probable cause to do so. That said, the officer may ask you their name and where they are going, answers which they do not have to provide.

What is required of officers?

If the officer wishes to question you, he or she must give his or her reasons for doing so and gain your consent. The same goes for a pat-down — unless an officer has a legal justification for doing so, he or she may not frisk you without your consent. The only instance in which an officer can search and question a person without consent is when the officer has an objective reason for doing so.

The Right to Know Act also addresses the issue of consent. The act seeks to make certain officers obtain explicit consent for searches that require it. It also requires officers to inform persons of their right to refuse a search and that a search cannot happen without their permission. To make certain officers do what the law requires of them, the act mandates officers record a person refusing or giving consent via their body cams (which the law now requires all NYPD officers to wear). Consent laws do not apply to searches performed with a warrant or those the law deems reasonable.

Does it apply to white collar cases?

When discussing the Right to Know Act, its applications to white-collar crime investigations is often overlooked. The protections afforded by the Act apply to situations where investigators are seeking information such as data, which may be stored on personal devices such as smartphones, tablets, and laptops. Without probable cause – most often in the form of a search warrant granted by a judge – an investigator cannot search or seize such technological devices or old-fashioned “evidence” such as notebooks or files.

If you find yourself on the business end of a search request, it is important that you understand your rights, including the right to an attorney.

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