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.
So why do you believe that US citizens are afraid to exercise their rights?
Stun Gun Used on Pregnant Woman in Ohio
http://www.freerepublic.com/focus/f-news/1932326/posts
if she was handcuffed, what kind of real threat could she be?(unless the cop was a midget)
Yes, it is.
There’s a clear hatred for cops in general.
No, there's not.
It couldn’t ~be~ more obvious.
You're paranoid.
There is nothing wrong with people standing up for their constitutional rights.
Ah, you so glibly provide a posthumous voice for the founding fathers, but I hear more SubgeniusX than Thomas Jefferson in the chorus. I guess you also believe that the Fathers would condone pornography and seditious tirades in time of war as free speech. I sincerely believe that they would not consider these (rare) searches as “unreasonable” given the present state of lawlessness in the country. I also don’t believe that these search requests are routinely made absent some degree of suspicious behavior or circumstances as the ACLU and the activist authoress of the article would have us believe. As for the other points, see my post at 151. Rights of any kind aren’t absolute.
According to This Report by the FBI (see table 17) about 10 officers are Feloniously Killed in traffic stops each year ...
while it can be argued that 1 is too many ... 10 a year is not a huge number by any means, especially considering the number of stops preformed ...
now that report was semi dated ('03) but had a nice breakdown ... THIS ONE ('06) is more recent and confirms the average of 10 a year but also shows that of the 100 officers killed during traffic stops from '97-'06 that only 64 were killed during "routine" or what you would term "simple" stops, the other 36 were killed during "felony" stops ... so that breaks the average down to 6.4 officers killed per year in "simple" traffic stops ..
so yes I know "how many cops were killed each year after being shot or stabbed after a simple traffic stop" ... and nope not going to give up my Constitutional Rights because of it ...
>I would be affraid that I would arouse suspicion if I refused to give consent to a search although I’d be well within my rights.<
What do you expect could result from your refusal to give consent to a search ?
They have no more right to use a canine to search your car, without your permission, then does the officer who stops you.
They can make you wait for a warrant signed by a judge, but chances are, without a good reason to search, the judge isn’t going to issue one.
A search isn't always required. Sometimes all a dog has to do is sniff.
Please see my post #166
even the information you posted can be "misleading" ... that is total officer deaths during traffic stops, the vast majority are accidental (getting hit by another vehicle, etc) ... in truth as evidenced in my post only about 6.4 officers are Feloniously Killed during "routine" stops each year ...
I don't know what one has to do with the other. Also, if you had a clue how many responsible, law abiding people had their rights violated by corrupt cops each year, you may feel differently.
In fact,the one and only encounter I ever had with a Mass State Trooper was very much like my first encounter with my DI during BCT.....but the trooper was just havin' his fun because I didn't get a ticket...or even a warning.
KeepUSfree indicated that Cops are likely to search without suspicion and that I was being “naive”.
I was an investigator for over 30 years. I have supervised many officers. Cops like hunting dogs, are lazy. It doesn’t pay to search where there’s no reward. That doesn’t mean that their reasoning is like that of the “average citizen” it means that they see some potential in finding contraband or just screwing with a someone for “contempt of Cop”.
You may note that I did not suggest that anyone should ever consent to a search. I explained how it is easier for a prosecutor to argue that if you had nothing to hide, you would have consented. He will continue with the attack that the criminal in question simply thought he was smarter than the police when he consented. It is lots harder to establish PC for the stop followed by PC for the search.
What I think is hysterical is the number of freepers who don’t distinguish between legitimate law enforcement (that conservatives support) and actions that trample on citizens’ rights.
Issuing deserved speeding tickets is legitimate while bluffing citizens into refusing their rights is simply government oppression.
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.
is not glib or "posthumous"... pretty straight forward I think...
Rights of any kind aren’t absolute.
yes they are ... rights are not granted by the Govt. our founding fathers thought that was "self evident" -
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
If Rights are "endowed by the Creator" they are absolute ... do you disagree?
but then again maybe I'm just being glib ...
bookmarking for later
You must not live in New England where 90% of the police officers routinely break the law they are sworn to uphold and treat citizens they come into contact with as though each and every one of them is a dangeous felon with no rights to even look them in the eye, let alone speak.
"law and order" is difficult to associate with law enforcement officers who have no respect for anything of the sort being applied to they themselves.
That's fine, I could use a nice jackpot like that. The officer won't pay personally, but I'd hope that property taxes in the jurisdiction would go up a little just to pay for my time and trouble.
They better be able to document and back up their probable cause for suspecting me of something. Otherwise, I don't intend to wait around and it's their problem not mine.
Under current Supreme Court precedent, a dog sniff is not a "search" because the cops are not opening up any closed part of your car-- the dog is reacting only to what is in the open air.
They can make you wait for a warrant signed by a judge, but chances are, without a good reason to search, the judge isn’t going to issue one.
If the dog alerts to your car, that is considered probable cause for a warrant.
>>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.<<
That doesn’t make sense! Of COURSE the suspect refused the search without a warrant - that’s WHY the officer is asking the judge to issue him one! In other words, no police officer would be standing before a judge requesting the issuance of a search warrant if the suspect had voluntarily submitted to a search.
Catch-22!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.