"Stop, Don’t Consent to that Search!”

EdNews.org ^ | November 28, 2007 | Carrie Latabia Jones

[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.

[jiggyboy]

A corollary to this is that after you refuse to consent to a search, they might try the old "well then we'll have to wait here for an hour or so while we get the canine unit" (or some other more-official sounding "authority") routine.

At that point it's gut check time: call their bluff and you lose an hour either way -- either they do indeed call the canine unit (rare) or they do the "creeping delay" routine a la the airlines: he'll call for the unit, two minutes later oops that officer isn't answering his radio, ten minutes later Dispatch gets back to him with some random suggestion (call somebody else, he's busy and will call you in ten minutes, he's en route and will be there in ten minutes, etc.), ten minutes later that one doesn't work out in some way and new possibilities are offered, continue until somebody blinks.

[JerriBlank]

“Any druggies or Jihadis that read this board will be grateful for the education.”

A great point.

I wish they would take all DEA officers and retool their mission to be a search for jihadis.

[wrench]

"I had a friend who was in law school, worked for the county courts, and refused a search by a highway patrol officer. He said that once he refused consent, the officer performed the search anyway, because the refusal was a part of the grounds for "probable cause"."

So, a search warrant was requested by this thug, and signed by a judge? Your student friend has a copy of the warrant and did not persue the false warrant through the courts?

At the least this officer committed violation of oath, criminal solicitation, making false statements and perjury.

[mysterio]

Any druggies or Jihadis that read this board will be grateful for the education.

I disagree that educating Americans about their Constitutional rights mostly benefits "druggies or Jihadis."

[Londo Molari]

“The vast majority of the police are good guys and you would have nothing to fear. A small percentage are bad guys.”

And it is a huge gamble on which one you would get. Too large of a gamble.

My sister is an attorney and her advice was this — lock your car door, close it and ask the local cop to call in a state police officer to witness the search if they insist on a search.

A friend of mine in high school was kissing his girlfriend when the friendly tap on the window from a local cop occurred. Instead of telling them to move along, the cop insisted on a search of his vehicle. He closed & locked the car and asked for a state police officer to be present during the search. The cop was annoyed because his integrity was questioned, but he let him go with a "don't come back here" warning.

[Rb ver. 2.0]

“Any druggies or Jihadis that read this board will be grateful for the education. “

I agree. People don’t need to know their constitutional rights anymore. Our lives should be controlled at the local level by politicians and law enforcement. It makes their job easier and if we have nothing to hide, why not let them search?

[Nick Thimmesch]

Then why ask in the first place for a consent to search and why not just altogether do way with the right?: not just “druggies” or murderists (not terrorists as they don’t scare me) as for the most part cops are looking for guns, legal or illegal. Watch what you mock, it could be YOU next.

[joe fonebone]

Here in my town, two people were murdered. The police arrested 3 kids ( young teenagers ) as witnesses...they did not lawyer up, and after 18 hours of questioning, they confessed to the murder. right afterward, they recanted and stated they were coersed into confessing. the kids spent 6 months in jail awaiting trial. cops never looked for anyone else. they had the criminals. or so they thought. just before trial, they arrested 2 people in another state that confessed to the murder. the kids were just witnesses to begin with. if they had lawyered up right at the start, they would not have spent a day in jail, and the investigation would have continued. and for the record, there was no tape recording or video recording of the questioniing, just the cops word. The police have a job to do, they are not your friends.

[VeniVidiVici]

Keep the DEA. Get rid of the IRS for this.

[glide625]

Uh, you don’t live in Texas? Here’s the deal; you have an even chance of the cop planting something in the vehicle because they are payed incentives to make drug busts. I’ve practiced Criminal Law and my advice to clients, friends and family is simple. If you’re pulled over and the cop asks to search the vehicle you ask for the warrant; he doesn’t have one and will then ask if you are refusing permission to search the vehicle at which point you say yes unless you have a warrant. Then the cop will threaten to call the K-9 unit to have your car searched and he’ll tell you that it will take an hour to get there (as you stand in the blazing sun). You respond, bring it on, make it so and be sure you call in a Supervisor to oversee the operation. 9 times out of 10 they’ll back down, particularly if they were carrying an illegal substance to plant in your car in the first place because the dog will key off on that.

If they bring in the dog; you’ve still got a 50/50 chance of going to jail because they’ve trained the dogs to key off on hand signals.

Good Luck out there!

[Sopater]

Also, the request for consent to search may not sound like “May I/we have permission to search your vehicle?”. It probably sounds more like “Would you mind opening your trunk for me?” or “What have you got under your seat there?”. My point is that if you show them, you’ve given consent.

[OCC]

I like to ask myself, “What’s in it for me?”. I cannot imagine anything good coming from a police search of my car.

LOL! I agree with you. After watching many episodes of COPs on TV, if someone refuses a search, they bring in the K-9 unit, which can add another hour+ to your travel plans.

[Gay State Conservative]

As time goes on I find I have less and less respect for cops...at least those in my neck of the woods.Living in,perhaps,the most liberal area of the most liberal state in the country I know that I,a white,heterosexual guy who's residing in this country legally,have fewer rights than any other category of person.

As a result,I'd never give permission to search even though the most dangerous/illegal thing I ever carry in my car is a jack and a cigarette lighter.

[Sue Perkick]

AKA “taking a ride with the taser”

[Mr. Jeeves]

The cop was annoyed because his integrity was questioned, but he let him go with a "don't come back here" warning.

It's like deterring a burglar - they'll just move on to an easier target. The phrase "I don't consent to any searches today, officer," should be a standard part of everyone's vocabulary.

[ClearCase_guy]

I know that kind of thing happens -- I've seen similar stories in the news over the years. It's a tragedy. The thing I never understand is the pyschology of the person being questioned. "Cripes, this guy keeps asking me these questions! I can't take it any more! Maybe if I just confess to murdering that dude, he'll leave me alone ..."

People do odd things under stress.

[Bigh4u2]

“well then we’ll have to wait here for an hour or so while we get the canine unit”

Canines, in the service of law enforcement, are officers too.

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.

[KeepUSfree]

"Cops aren’t going to ask if they don’t suspect something"

If you believe this then I have a bridge, some prime real estate in the everglades and a perpetual motion machine you might be interested in investing in.

Being THAT naive will get you into trouble one day.

[AmericaUnited]

I cannot imagine anything good coming from a police search of my car.

You mean like the cop finding a roach under the back seat that belonged to the previous owner and/or friends of the previous owner? It could happen...