Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.
Posted on 11/29/2007 6:38:28 AM PST by Sopater
How many times have we seen it? Someone is pulled over for a traffic violation, or maybe just a routine traffic stop, and the next thing you know his or her car is being searched. Nevertheless, most of the time, it is with the consent of the of the person being stopped. Why are you consenting to a search when there is no probable cause for one? The answer is simple, people are not aware of their rights.
The Constitution and the protections that it guarantees can be a bit daunting to "just regular ole' folks," but the gist of it goes something like this:
·Police may initiate a conversation with any citizen for any reason, however they may not detain you without "reasonable suspicion" that you are engaged in criminal activity. When you are stopped, you should ask the officer, "Why am I being stopped?" If the officer does not indicate that you are suspected of a specific crime, then this is a casual stop and you should be allowed to terminate the encounter at any time, but if the officer indicates that you are suspected of criminal activity, you are being detained.
·If a police officer asks your permission to search, you are under no obligation to consent. The only reason he is asking you is may be he does not have enough evidence to search without your consent. If you consent to a search request, you give up your Fourth Amendment protection against unreasonable searches and seizures, Scheneckloth v. Bustamonte, 412 U.S., 93 S. Ct. 2041, 36 L.Ed.2d 854 (1973).
Generally, if a person consents to a warrantless search, the search automatically becomes reasonable and therefore legal. Consequently, whatever an officer finds during such a search generally can be used to convict the person.
Do not expect a police officer to tell you about your right not to consent. Generally, police officers are not required by law to inform you of your rights before asking you to consent to a search. If, for any reason you don't want the officer digging through your belongings, after you have consented to the search, you should tell himthat you don't want him searching through your private things and If the officer still proceeds to searchand finds illegal contraband, generally your attorney can argue that the contraband was discovered through an illegal search and that evidence could be thrown out of court, this is not always the case though.
You have the right to terminate an encounter with a police officer unless you are being detained under police custody or have been arrested. The general rule is that you don't have to answer any questions that the police ask you. This rule comes from the Fifth Amendment to the U.S. Constitution, which protects you against self-incrimination. If you cannot tell if you are allowed to leave, ask the officer, "Am I free to go?"
I hope that this article informs people of their basic rights as far being stopped and the protections that are afforded to us by the Constitution. The goal of this article was to generally inform about the laws of consent and search, this article in not way is meant to be specific, for a more specific break down, I would advise to look at your state statutes, becaue they sometimes provide for more protection than the constitution does.
Police do whatever they want regardless of the law, they just use the “the judge will sort it out” excuse.
I remember one cop saying it is not my job to know the law, that is the judges job. (!)
“well if you have nothing to hide”
Then they have no reason to search.
You are only one prescription pill accidentally dropped inside your car or one cocaine saturated paper money bill in your wallet away from being considered a “druggie”.
I'm not sure there are millions being paid out, but it's certainly true that if you refuse these casual search requests, you might join the ranks of those citizens who have been detained and searched simply because of that refusal.
What's nonsense about the truth, smoketree?
There are conservatives who have problems with specific actions by specific cops, and then you have Libertarians who always, immediately whip out the torches, pitchforks, and ropes, and form a lynch mob. This lynch mob mentality is set off by any media report of any police misconduct regardless of who the complainant is or how poorly the article is written or how few, if any, facts are present in the story.
It’s a bit hidden but essentially the Feds annually offer up matching funds and bonuses to Policing Departments for extra efforts in certain areas; in order for a Department to qualify for the extra funds they have to make a showing of having made so many busts or so many arrests or so many pounds of this substance or that or so many DWI arrests, etc. Thus we see the emergence of “Task Forces”, the DWI Task Force and the County Drug Task Force, and the Domestic Violence Task Force, the Animal Cruelty Task Force, etc. and if the Task Force makes it’s quota, the Department gets big bucks with which to buy new equipment, and cars and boats and helicopters, bullet proof vests, stun guns, and raises and bonuses and bullet proof vests and high hopes for next year! And after a few years of this? Voila, Welcome to Texas the “Incarceration State” We’ve built one, (a jail cell) For YOU! As my criminal law professor said, “Everybody is guilty of something, everyone should serve a little time.”
No.
Actually they are even more "unreasonable" when they are conducted on the "innocent". Secondly if the LEO's did thier job properly they would not have to worry about a case/arrest being thrown out due to "unreasonable search and seizure".
Refusing a search affords instantaneous probable cause for the warrant, provided the stop is legal.
False, refusing consent is not in and of it self probable cause. This has been determined by the courts.
An innocent civilian has nothing to fear and his/her personal safety is enhanced by the process
An "innocent" civilian has every right to fear this as it is an abuse of power under colour of authority ... our Founding Fathers clearly "feared" this enough to include it in the Bill of Rights... also "personal safety" is NOT "enhanced by the process", I would argue that it is actually undermined by police wasting time/resources for the search when they could be better used...
By the by, how is iPods for votes an apt comparison?
In your original post you stated...
"Problem is, they can keep you hanging around infinitum until they get a warrant. So, if you’ve got nothing to hide. why not?"
.... so what you advocated was the voluntary relinquishment of your Constitional Right for the sake of convienience... in the same way that those students were willing give up their right to vote for the "convienience" of getting a free Ipod... heck what you advocate may even be worse, at least they would get "somthing", all you do is "save time" ....
Ok. I thought that a bonus check was cut for each cop based on his arrest record.
Too much federal money and involvement in state and local issues in every field. It corrupts everything, and centralizes power. More of our tax money needs to be left with us, and kept in our respective states. Locals know what they want their police to do, and not do. They would fund accordingly.
Exercising one’s right to free speech does not meant that one cannot incriminate himself by so doing. In a similar vein, refusal of a search incident to a lawful stop is an element a judge may take into account when issuing the warrant. Refusal of a search at the airport is a Constitutional right, but what happens? You don’t get on the plane! The exercise of a right does not immunize one from the consequences. By the way, how can you you deem Constitutional rights so sacrosant when Abortion on Demand has been given such status?
Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.
Ever since I have been asking myself, if I were in a big hurry to get somewhere, would it be worth it to refuse a search?
Does anyone know if there are any time limitations on detaining people or their vehicles if there is no probable cause?
I don't know what the data are for the most recent period, but during the ten year period between 1988-1997, 688 policemen were killed during traffic stops. I don't have data for the same ten year period, in 1999, there was 23 million traffic stops in the country. Assuming that these numbers are representative, then during each traffic stop, the odds of a policeman being killed are 2.96 x 10^-6 against.
How are these numbers supposed to make me more understanding of their request to search my car?
if you allow a search, you allow police to find anything they can to make the arrest... even if it is planted... the question is, will the police officer submit to a search before you allow him to search your car... he probably would not.
teeman
Their is a massive difference between a search of your car, and a search of your premises.
With a car, exigent circumstances apply, and if reasonable suspicion exists, then you can do the search and justify it on the grounds that by waiting to obtain a warrant, evidence could have been destroyed or disposed of. Bottom line, however, is that exigent circumstances doesn’t alleviate you of having probable cause. You still have to have probable cause to make the search stand up in court.
Even in those cases, if you actually REALLY do have reasonable suspicion, and the cop believes there really is a crime being committed to the point he feels he has probable cause, they will get someone to drive your car to a station, wait for a warrant, and then pop your trunk.
The issue here is, there are WAY too many cops out there that simply want to throw their weight around, and take it personally by exercising rights they know you have. The very fact that there is no suspicion, and they are asking to do a search, means you have a whole new problem on your hands. The cop knows your rights, and the limits of his powers, and STILL is asking to do a search.
City hall, literally, has singled you out for a fight. With a cop like that, there’s a reasonable chance they may plant evidence, and now things get worse. For me, its better to just refuse the search, but otherwise be compliant, including agreeing to be taken into custody. At that point you can SAY ZERO and call an attorney.
The responsibilities the State has once you are in custody are pretty clear, and you have much more room to maneuver. In my book, you can even offer to wait until he has obtained a search warrant, agree to have your car towed (not let an officer drive) to a station for the search. I would bend over backward to accommodate the officer, but I wouldn’t agree to the search there on the side of the road.
Dealing with a cop like that requires witnesses and documentation, and this is the only way I can see doing those things without getting tased.
“By the way, how can you you deem Constitutional rights so sacrosant when Abortion on Demand has been given such status?”
That is the problem. Constitutional rights are being constantly eroded. It doesn’t change the fact that the right exists; instead new laws are written to circumvent those rights and are then subject to constitutional interpretation by a left wing activist judiciary.
Standing up for rights as they are written in the Constitution is the duty of every citizen in this country. Acquiesce to the threat and this will cease to be a Constitutional Republic, probably in our lifetime.
I've touched on this before, but as with anything, it depends on the situation. But to generally answer your question, once you have been stopped, you are "seized" for Fourth Amendment purposes. You can be detained long enough for the policeman to investigate the reason for which you were initially stopped. Once that's occurred, then you ought to be free to go. If the police hold you longer, then you have a strong argument that there's been an illegal seizure.
One more thing. I’m not saying the Police don’t have a right to search my car. They have an obligation to go through the correct and necessary procedure to do so.
Asking me for my permission is an attempt to circumvent their responsibility for proper search.
I have to laugh when I read things like this. The author, while no doubt technically correct, obviously doesn’t live on Planet Earth — you know, the one with the real cops. In the real world, if you refuse to allow a cop to search your car, you are going to jail, and to hell with your 4th Amendment blah blah blah.
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