When You Refuse to Consent to a Police Search
Can Your Spouse Override That Refusal?:
UPDATE: MAY 2005
The U.S. Supreme Court Takes An Important Fourth Amendment Case
By SHERRY F. COLB
Last month, the Supreme Court decided to review Georgia v. Randolph. The case asks the following question: if a husband refuses to give police consent to search his house, may the police get consent from his wife and then go ahead with the search?
This question is important because a large number (perhaps the overwhelming majority) of warrantless searches are conducted on the basis of consent. The more flexible the concept of "consent," therefore, the more searches the police can perform, without a warrant, without probable cause, and without any real basis for believing that criminal activity is afoot.
Click here to find out more!
Why Police Want Your Consent
Ordinarily, police must have a good reason to invade your privacy. If an officer wants to search your home, for example, the Fourth Amendment requires that she first obtain a warrant, after demonstrating to a neutral magistrate that she has probable cause to believe that she will find evidence of crime there. In the absence of a warrant (or an emergency explaining the failure to obtain a warrant), the police officer violates your constitutional right against unreasonable searches and seizures when she crosses the threshold of your home.
And even with a warrant, the officer must limit the scope of her search to the areas where the evidence she seeks might reasonably be located. In other words, she can't search your desk drawers for a stolen big-screen television.
But all of that changes when you consent. Once you give a police officer permission to search your home, you relieve her of the obligation to obtain a warrant and probable cause. You relieve her, as well, of the obligation to limit the scope of her search to correspond with her basis for suspecting wrongdoing.
A simple "go ahead" in response to the question, "do you mind if I look around?" converts what would have been an unlawful invasion of privacy into entirely legal activity. It forfeits the Fourth Amendment objections you might otherwise have had to the search.
So it is clear why police seek consent for searches -- it saves them a lot of trouble, and it opens doors that the Constitution otherwise keeps firmly shut. But why does anyone consent?
Why People Give Consent
As I elaborated in greater detail in an earlier column, the main reason people consent to searches is that they do not know any better.
To many, a police officer's request for consent may sound like an empty gesture that does not truly allow for a negative response. The person to be searched may well hear an implicit "we could do this the easy way (with consent) or the hard way (without consent) -- it is up to you" in the police question. Who would prefer "the hard way" in the face of those alternatives?
But don't police tell the suspect that he has the right not to be searched? After all, when a suspect is arrested, he is told -- before any interrogation may take place -- that he has the right to remain silent. Doesn't the "consent search" scenario require essentially the same thing?
The Supreme Court has said no. According to the Court, the fact that a person might not know that he has the right to refuse consent to a search is merely one factor in the determination of whether his consent is voluntary. The Court has reasoned that the police need not give warnings (to eliminate any doubt about the suspect's knowledge of her rights), because warnings might detract from the informality of an otherwise friendly interaction between civilians and the police.
The Supreme Court has explained that "the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime…." Furthermore, the Court has concluded, it would be "thoroughly impractical" to require an effective warning about the right to refuse.
Third Party Consent
It is with this perspective on consent searches -- as desirable events that should be understood to have occurred whenever plausible -- that the Supreme Court addressed the question of third party consent. Third party consent occurs when the person who gives police permission to perform a search is not the same person as the target of the search or the defendant in the later criminal prosecution.
You may have a roommate, for example, with whom you share a kitchen, bathroom, and living room in a two-bedroom apartment. The police suspect that the roommate possesses marijuana and has hidden it in the home you share. They either lack probable cause, and thus lack grounds for a search warrant, or do not want to bother to try convincing a judge that they are entitled to one. And they also believe that you are more likely to consent to a search of the common areas of the dwelling than your roommate is. So they ask for your consent to a search of the living room and bathroom.
You might say yes, because you either don't mind or don't think you have a choice. The police then search the medicine cabinet in your bathroom to find evidence connected to your roommate. Perhaps they find something. Perhaps they do not. Either way, legally, they have not violated the Fourth Amendment.
But what if it turns out that you didn't have actual authority to consent to the search of the medicine cabinets? Perhaps you and your roommate agreed that you would use the shelves on the wall, and your roommate would use the medicine cabinet, because he has an embarrassing infection and doesn't want his medications to be visible.
According to the Court, a lack of actual authority doesn't matter either. As long as the police reasonably believed that you had authority to consent and that your general consent to the search of the bathroom contemplated the medicine cabinet as well, the police have done nothing illegal.
Disputes Between Those with Common Authority: The Government's Side
It is in this context that the issue of disputes between people with common authority over the premises arises. The police receive consent to search from someone other than the search target or future defendant. But this time, the police have already requested consent from the target and received a negative response. Should the police be able to proceed with a search on the basis of the third party consent they subsequently obtain from a roommate or spouse?
It may seem obvious that the answer is yes - and that the case is therefore a slam-dunk for the government. If the well-established legal rule is that police need consent from only one party with common authority, then it follows logically that the existence of a nonconsenting other person with common authority is irrelevant.
After all, there is little difference between the target's saying "no" to a request for consent, on the one hand, and the target's not being asked or given an opportunity to say "yes," on the other -- either way, the target has not given anyone permission to search his home. If his consent is needed for a search, then the search is illegal. If it is not, then the search is fine.
Consider an analogy. You own a car. Someone who lives down the street from you decides to "borrow" that car. You leave your key in the ignition because it saves time when you're in a rush. Your neighbor gets into your car and drives around on various errands during the day, without ever asking you for permission or otherwise getting your authorization. That person has illegally taken possession of your car. It is no defense, moreover, for the person to say "well, you never said that I couldn't borrow it." The default rule is that he cannot borrow it -- it takes an affirmative act by you to change that default.
Therefore, the "borrower's" failure to obtain your permission to use the car is equivalent to his having expressly asked to borrow it and received a clear "no" in response.
In the same way, the government could argue, the failure to give consent for a search is legally indistinguishable from an affirmative response of "no" to a request for consent. If the former does not preclude third party consent, then the latter -- where police ask the target and he says "no" before they go to the roommate or spouse -- should not either.
Disputes Between Those with Common Authority: The Other Side
But this argument for the government -- persuasive on the surface -- is flawed.
Consider what happens when you share common authority over premises with another person. You can invite friends over to the house. You can authorize guests to use the bathroom or sit in the living room, and you can do these things without calling your roommate or spouse to make sure he's okay with it. But that is not because "yes" necessarily trumps "no" when it comes to understandings and expectations about shared spaces.
Rather, it is because the default of "no permission" changes when one of the people with common authority over the premises grants someone permission to enter -- whether a friend or a neighbor or the police. Once one of you invites a person in, the default becomes permission.
Consider again the car analogy. Your neighbor still wants to borrow your car, and he still has not asked for your permission. This time, however, he has asked your spouse, who co-owns the vehicle, and your spouse has said "okay." In this scenario, if your neighbor claimed that "your spouse said I could borrow the family car," and you believed that claim, then you would no longer have any reason to complain about your neighbor's actions. Your spouse, in other words, has the implicit authority to speak for both of you when someone requests permission to use your joint property.
Unless you say otherwise, your spouse's permission thus counts as permission from both of you. That is why your failure to raise an objection to the neighbor's borrowing the car -- recall the "you never said no" defense -- is meaningful when the other joint owner has said "yes," in a way that it is not when neither of you has granted permission.
If instead, however, your neighbor has asked you first and you have said no, his subsequently going to your spouse and getting permission would present a very different set of circumstances. Your spouse now no longer speaks for both of you, even implicitly, because you have already made your wishes known to the neighbor.
By failing to accept your refusal, the neighbor -- at the very least - has behaved improperly by seeking a different "ruling" from your spouse. You could now understandably complain about the neighbor's actions and say "I already told you no. Going to my spouse to ask for permission was out of line."
Now return to the consent search case. When the police officer asks you whether it is okay if she looks in the bathroom, your affirmative response speaks for both you and your roommate. If, however, your roommate has already refused consent, then you can no longer speak for him.
The question, at that point, really does become whether "yes" can trump "no" -- rather than whether people with common authority can consent to searches and entries on each other's behalf (prior law makes clear that they can).
The Court Should Rule Against the State
Let us take a step back and consider how important it is for police to be able to perform consent searches. The Supreme Court seems to think it is essential, saying that "a search authorized by a valid consent may be the only means of obtaining important and reliable evidence." But is the Court right to value consent searches so highly?
Consent searches that could not otherwise take place -- that is, searches that are not supported by probable cause, a warrant, or some other measure of reasonableness -- are, by that very index, unlikely to yield results. They are based on hunches and other unsubstantiated police guesses and thus, they frequently end with a needless invasion of privacy coupled with the waste of precious police time.
These fruitless "consent" searches typically happen below our radar, because police have no incentive to tell us about them, and they only rarely cause the sort of injury that would motivate a lawsuit. In the unusual case in which police guess correctly, we hear about the consent search, and that selective revelation conveys the misleading impression that something appropriate and reliable must have motivated the search in the first place.
The invasion of privacy, moreover, can be substantial, because people rarely feel that they have the right or the option of saying no when police ask for permission to search, no matter how extensively. And over time, police may come to feel entitled to get consent, which only emboldens them to ask for permission to search on flimsier grounds and with a greater air of legal rectitude.
But that is all set by existing Supreme Court precedents. The question now before the Court is a relatively narrow one: whether police should be able to "cheat" when it comes to consent -- ask dad, and when he says no, just go to mom or grandma, etc., until they hear the answer they want.
As rare as it is for people to exercise their right to privacy in the face of police "requests" for forfeiture, those assertions -- when they do occur -- deserve respect. If the Court holds otherwise, it will further whittle away the right against unreasonable searches and seizures -- the right to make police accumulate probable cause and seek a warrant from a neutral magistrate before showing up at your doorstep or your car window, hoping to look around.
Though the Court seems so far to have been mesmerized by the "need" to search without any basis for believing the search will yield results, it should wake up from its trance and close the door to your private spaces.
Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on criminal law and procedure, among other subjects, may be found in the archive of her work on this site.
UPDATE: October 2010
When there is more evidence in favor of something than against or when there are reasonable grounds for believing the truth of an assertion, which is something more than mere suspicion
Instrumentalities of crime:
Items, goods, tools, or anything else used to facilitate commission of a crime. This could include anything from lock-picking sets to software or hardware used by computer hackers.
A sworn, written statement voluntarily made, before a proper authority. Affidavits are commonly used to replace live testimony as a matter of necessity (such as when a witness is no longer available due to death but has already made out an affidavit) or even as a matter of convenience (such as when it would be difficult to present the witness to the court at the appropriate time).
An out-of-court statement offered into evidence for the purpose of establishing the truth of the matter asserted. Although the rules regarding hearsay are complicated, hearsay is generally not admissible as evidence in a criminal trial because the party against whom the statement is offered does not have the opportunity to cross-examine the declarant (the person who made the statement).
Before a judge or magistrate may issue a search warrant, there must be a finding of probable cause. The level of evidence required to demonstrate probable cause is greater than "mere suspicion" but is less than the level required for a criminal conviction (beyond a reasonable doubt). The facts must demonstrate that a reasonable person would believe that the location which is the subject of the warrant contains evidence of a crime, the instrumentalities of a crime (e.g., safe-cracking equipment), contraband (e.g., illegal materials such as drugs), or the fruits of a crime (e.g., stolen property). See Carroll v. United States 267 U.S. 132 (1925).
Officer Tropvite has seen Joe lurking around the back of a store nearby his home and suspects that Joe plans to rob the store. Although the Officer has no reason to believe that any instrumentalities of crime exist at Joe’s house, he asks Judge Prudent for a search warrant, hoping that the search might scare Joe off from the possible future crime. Without some evidence from which a reasonably prudent person could conclude that tools to be used in the crime would be found in Joe's house, Judge Prudent should not issue the warrant.
Not to be discouraged from capturing Joe and winning county-wide acclaim, Officer Tropvite follows Joe around for a few days. Over that period of time he observes (and documents) Joe purchasing a large pair of bolt cutters, a black ski mask, leather gloves, a ladder, and 2 large duffel bags. He watches Joe transfer these items from his car to his garage. Returning to Judge Prudent with this new evidence, Officer Tropvite will likely be granted his request for a search warrant for Joe’s garage.
Probable cause may be demonstrated by live, sworn testimony or by affidavit.
More importantly, an affidavit based on hearsay (which could not be used as evidence in a criminal trial) can be used as the basis for issuing a search warrant, so long as the circumstances in their totality establish probable cause. See Illinois v. Gates, 462 U.S. 213 (1983).
Officer Diligent seeks a warrant based on his testimony that Sneak told Diligent that he (Sneak) overheard Warren asking his girlfriend to go buy $500 worth of drugs in cash and to bring them back to his house. Officer Diligent’s testimony to this effect would not be admissible as evidence against Warren in his trial – it is inadmissible hearsay. However, for the purpose of establishing probable cause such that a search warrant may be issued, Officer Diligent’s testimony may be admissible. If we add Diligent’s testimony that he then witnessed the girlfriend going to an ATM, withdrawing $500 in cash and then returning to the house one hour later, the totality of the circumstances may be sufficient to issue the warrant.
Officer Techie e-mails Judge Conservative and requests a search warrant for a storage locker which he believes contains stolen salmon. He also sends an attachment with the e-mail which contains digital pictures of masked men unloading the salmon into the locker. The picture is time-stamped by the camera which records the time as 2:37 a.m. Although the evidence might be sufficient for a reasonably prudent person to conclude that the fruits of a crime are located within the locker, because there has been no sworn testimony to that effect and no affidavit has been written (the e-mail is not a sworn writing made before a proper authority), Judge Conservative should deny the Officer Techie's request.
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UPDATE: April 2005
By Ted Rall
Throw Lying Cops Off the Force
NEW YORK--Cops lie. Not all of them, but so many lie about their arrests, tickets and interactions with the public that it's a miracle anyone still respects the law.
Corrupt cops were around long before Serpico, but the problem appears to be getting worse. After the dust settled from the recent Rampart Division scandal, Los Angeles prosecutors were forced to drop hundreds of charges against innocent people sitting in jail, who'd been convicted of crimes invented from thin air by police officers willing to lie in order to embellish their arrest record.
Now courts have found that New York City police, already facing multi-million-dollar lawsuits filed by demonstrators who were held in horrifying "Little Gitmo" conditions at the 2004 Republican National Convention, fabricated charges against nearly all of those they arrested.
The NYPD arrested 1,806 people during the RNC. "Of the 1,670 cases that have run their full coarse," The New York Times reported April 12, "ninety-one percent ended with the charges dismissed or a verdict of not guilty after trial."
Using a new tactic, protesters hired hundreds of anti-RNC cameramen to videotape their arrests. Their evidence proved that cops trumped up nearly every charge. Some of those arrested, it turns out, were passersby who didn't participate in the protests at all. The videos, reported the Times in its usual understated style, offered "little support [for police] or actually undercut the prosecution of most of the people arrested." After viewing the evidence, Manhattan's district attorney dropped the charges.
The newspaper cited the case of Dennis Kyne, the first RNC arrestee. At Kyne's trial for "inciting a riot and resisting arrest," NYPD officer Matthew Wohl testified that he had been forced to pick up the defendant "while he squirmed and screamed," grabbing "one of his legs because he was kicking and refusing to walk on his own."
The videotape, unlike P.O. Wohl, doesn't lie.
The tape "showed Mr. Kyne agitated but plainly walking under his own power down the library steps, contradicting the vivid account of Officer Wohl, who was nowhere to be seen in the pictures. Nor was the officer seen taking part in the arrests of four other people at the library against whom he signed complaints."
The prosecutor "abruptly dropped all charges."
In an Orwellian twist, the authorities even censored their own tapes to delete evidence of police lies. Alexander Dunlop, charged with pushing his bicycle into a line of police officers and resisting arrest, was seen on a police tape before the incident in question and sitting in handcuffs after his arrest. The D.A.'s office erased "parts of the tape that show him calmly approaching the police line, and later submitting to arrest without apparent incident."
Summer's convention demonstrations were one of last year's biggest stories, taking place in the streets of the nation's largest and most densely populated city--not to mention its media capital. If cops are willing to lie about events witnessed by hundreds of people in broad daylight, while the cameras roll, if they're unafraid to file phony charges against white college kids with rich parents who can afford good lawyers, one can easily imagine what they do to minority teenagers on the desolate streets of the slums. Who can blame urban kids for despising the police?
This clean-cut Ivy-educated white columnist has encountered enough instances of cops lying to reasonably conclude that the socially destructive phenomenon is widespread:
· A couple of years ago a Los Angeles police officer cuffed me while citing me for jaywalking--actually, I was in the crosswalk with the green "walk" signal in my favor--then tossed my ID into the gutter. The LAPD internal affairs division repeatedly ignored my complaints about this unprofessional goon.
· A Nevada state trooper, not content to ticket me for the 80 miles per hour I was actually speeding on a desert stretch of U.S. Route 95, wrote me up for a more ambitious but false 100 in a 70 mph zone. I was so incensed at the level of exaggeration that I later flew back from New York to challenge the ticket. I won.
· I'm currently awaiting the outcome of a ticket I was issued for violating New York's law against talking on a cellphone while driving, a rule with which I agree. First, I always use an ear bud--which is legal. And as my phone bill attests, I wasn't even using the phone at the time in question.
Why do so many cops lie? My pet theory is that, in the same way that Bill Clinton's sex scandals encouraged promiscuity among impressionable young people, George W. Bush's contempt for the truth and the law, including granting permission to torture and jail the innocent, set a tone that emboldens law enforcement officers to feel that they can get away with anything.
Whatever the cause, cops who slander the innocent unravel our respect for the uniformed authority figures who are the most public face of our government. Public contempt undermines the tacit consent of the governed, the vague but essential groupthink that perpetuates political legitimacy in any society. Lying cops imply lying leaders; lying leaders imply illegitimate rule.
Amazingly, police departments rarely impose sanctions against cops whose testimony is repeatedly found to be untrue by judges, prosecutors and juries. The prevailing attitude is: do whatever, say whatever, and see what sticks. But this has got to stop.
Criminal policemen ought to face treatment at least as harsh as employees of other, less vital, professions who lie to their boss. When a judge or the prosecutor's office throws out a case because the evidence disproves a police officer's account of the incident, a warning should be placed in his file.
The second time he bears false witness, he should be fired and ordered to find another, more appropriate job (political consultant, secretary of state, or CFO for a Fortune 500 company).
Supreme Court to Decide Mandatory ID Case
By GINA HOLLAND, Associated Press Writer
WASHINGTON - Do you have to tell the police your name? Depending on how the Supreme Court rules, the answer could be the difference between arrest and freedom.
Larry 'Dudley' Hiibel, talks to reporters outside the U.S. Supreme Court (news - web sites), Monday, March 22, 2004 in Washington. The Supreme Court is hearing the case of rancher Hiibel, who is challenging a Nevada law requiring people to identify themselves to police officers.
The rancher was arrested after he refused to provide identification eleven times. )
The justices heard arguments Monday in a first-of-its kind case that asks whether people can be punished for refusing to identify themselves.
The court took up the appeal of a Nevada cattle rancher who was arrested after he told a deputy that he had done nothing wrong and didn't have to reveal his name or show an ID during an encounter on a rural road four years ago.
Larry "Dudley" Hiibel, 59, was prosecuted, based on his silence, and finds himself at the center of a major privacy rights battle.
"I would do it all over again," Hiibel, dressed in cowboy hat, boots and a bolo tie, said outside the court. "That's one of our fundamental rights as American citizens, to remain silent."
The case will clarify police powers in the post-Sept. 11 era, determining if officials can demand to see identification whenever they deem it necessary.
Nevada senior deputy attorney general Conrad Hafen told justices that "identifying yourself is a neutral act" that helps police in their investigations and doesn't — by itself — incriminate anyone.
But if that is allowed, several justices asked, what will be next? A fingerprint? Telephone number? E-mail address? What about a national identification card?
"The government could require name tags, color codes," Hiibel's lawyer, Robert Dolan, told the court.
At the heart of the case is an intersection of the Fourth Amendment, which protects people from unreasonable searches, and the Fifth Amendment right to remain silent. Hiibel claims both of those rights were violated.
Justice Antonin Scalia (news - web sites), however, expressed doubts. He said officers faced with suspicious people need authority to get the facts.
"I cannot imagine any responsible citizen would have objected to giving the name," Scalia said.
Justices are revisiting their 1968 decision that said police may briefly detain someone on reasonable suspicion of wrongdoing, without the stronger standard of probable cause, to get more information. Nevada argues that during such brief detentions, known as Terry stops after the 1968 ruling, people should be required to answer questions about their identities.
Justice Sandra Day O'Connor (news - web sites) pointed out the court never has given police the authority to demand someone's identification, without probable cause they have done something wrong. But she also acknowledged police might want to run someone's name through computers to check for a criminal history.
The encounter in this case, which was videotaped, shows Hiibel by a pickup truck parked off a road near Winnemucca, Nev., on May 21, 2000.
An officer, called to the scene because of a complaint about arguing between Hiibel and his daughter in the truck, asked Hiibel 11 times for his identification or his name.
Hiibel refused, at one point saying, "If you've got something take me to jail" and "I don't want to talk. I've done nothing. I've broken no laws."
Hiibel never acted in a threatening manner and cooperated when handcuffed. His daughter, a teenager at the time, was thrown to the ground and arrested when she protested his arrest, the video shows. She was not convicted of any crime.
Hiibel was convicted of a misdemeanor charge of resisting arrest. He was fined $250.
Nevada is supported by the Bush administration and two criminal justice groups. Organizations backing Hiibel include the American Civil Liberties
Union (news - web sites), the Cato Institute, privacy groups and advocates for the homeless.
Marc Rotenberg, president of the Electronic Privacy Information Center, said if Hiibel loses, the government will be free to use its extensive data bases to keep tabs on people.
"A name is now no longer a simple identifier; it is the key to a vast, cross-referenced system of public and private databases, which lay bare the most intimate features of an individual's life," Rotenberg told the court in a filing.
The case is Hiibel v. Sixth Judicial District Court of the state of Nevada, 03-5554.
On the Net:
Supreme Court: http://www.supremecourtus.gov/
The arrest video can be seen at this site: http://papersplease.org/hiibel/video.html
WHAT TO DO IF YOU GET STOPPED BY THE POLICE
Continue to: Unfree in America
The legal system in the US is one arm of the octopus we call "The System."
It was designed by and is used for the benefit of those who control our society.
It was not designed to protect the "rights" of those who oppose capitalism or business as usual.
Because of various historical accidents, there are aspects of the law that, at least in theory, protect individual "liberties." The law presumes, however, that everyone knows what these protections are and if you don't know what they are, it is very easy to "waive" these rights. Therefore, in the interest of giving us all an equal chance when we're confronted by the cops, here are some thoughts on the law of police stops and searches.
This article is based on how things are supposed to be "in theory." The reality is that police can and will do anything they want out on the street. And they won't hesitate to lie about it later on.
But some cops are worse than others and a lot of them may treat you differently if they think you know your rights. The police depend on fear and intimidation to get what they want. Don't let them get away with more than they are allowed to because of fear.
If you run into a really bad cop, talking back to him and standing up for your rights might get you beaten up or killed, so be careful about the realistic limits of "the law" and of your rights in America. Cops are perhaps the most dangerous members of our society, so be careful when you talk to them.
David Simon, a reporter for the Baltimore Sun in his book Homicide, pp. 204-220, shows how cops "trick" the ignorant into waiving right after right. The basic strategy he writes about involves bombarding the subject with so many questions that s/he doesn't think to say "I want to talk to a lawyer and I don't want to answer any questions until I do." Simon reports that cops follow the letter of the law, ignoring the spirit. Thus a subject who says "Maybe I should get a lawyer" is met with the response, "Maybe you should." Similarly: "Those few with heart enough to ask whether they are under arrest are often answered with a question: 'Why? Do you want to be?' -'No.' - 'Then sit the fuck down.'"
Cops are tricky.
You have to be explicit in invoking your rights, otherwise you "waive" them.
First, make absolutely sure that you are in fact dealing with a bona-fide police officer; impersonation of police officers by criminals is an increasing problem. Ask for idenfication from any non-uniformed person purporting to be a law enforcement officer.
If, in a vehicle, you have any doubts as to whether the people attempting to stop you really are police (no flashing lightbar, no marked police car and/or no police uniforms or identification) KEEP DRIVING at a safe speed to the nearest police or fire station, open gas station or service plaza.
If it really is police there will be more police cars appearing very shortly once you don't stop after the initial request to pull over. You should stop immediately at the appearance of additional police cars.
If it is actually the police attempting to stop you, they will not be pleased that you didn't stop immediately, but they should understand your behavior and not hold it against you if you then deal with them correctly.
Always keep your hands in plain sight and your arms at your sides when dealing with a police officer. Make no sudden moves and speak in a level, calm voice. Be very polite and to the point; insults and invective may feel good, but can only make your situation (much) worse.
If you are stopped in your car at night, pull completely off the road, turn off your engine, lock your doors, roll up all windows except the driver's window and turn on the overhead light. Have your license, registration and proof of insurance out for the officer when he arrives at your vehicle. Your production of those items will be his first request during a normal traffic stop. Do not get out of your car unless told to.
When a police officer stops you on the street, the law says that the stop will fall into one of 3 categories: consensual contact, detention or arrest. Which one you're in determines how badly they can fuck with you.
At one end is a "consensual contact." This means that the officer comes up to you and says "can I speak with you?" If you say "yes," you have consented to have contact with the police. That is very bad. The result of such "consent" is that you won't have various "rights" under the Constitution.
ESPECIALLY if you think you may be guilty of something (you have a warrant out on you, you are carrying drugs, you just did something illegal), NEVER consent to talk to a police officer. This sounds backward. The normal impulse when confronted with a cop is to be polite and try to convince them that you aren't doing anything. If you follow such an impulse, you are unlikely to actually convince the officer and if the cop gets you on something, you won't be able to get out of it later on in court. Never voluntarily talk to the police!
If you don't think you are guilty of anything, it still isn't a good idea to consensually talk to the cop. You never know how the conversation will end up. And if people figure "well, I'm not guilty of anything so I'll let the police stop me and ask me a few questions now and then" the police state will be on the march. Further, it will encourage the idea that people who don't want to talk to the police have something to hide.
How do I avoid a consensual contact? If the cop asks, "Can I talk to you" say something like "I'm sorry, I'm in a hurry and I don't have time to talk to you right now." If the cop insists, ask him "Are you detaining me? Am I free to leave?"
Ask this several times to make sure the cop will have a hard time lying and saying you didn't mention it later on if you get to court. If it is really a consensual contact, the officer ought to let you go on your way if you ask to go. If you don't actually verbally ask to leave, the court will presume that you consented to whatever follows.
The next category of citizen/police contact is called a detention. The police are only allowed to detain a citizen when there are "specific and articulable facts supporting suspicion" that you are involved in criminal activity. This means that they can't detain you on a "hunch."
"Specific and articulable facts" (SAF) means that the police must have observed something about your behavior and character that links you with specific criminal activity. If the police detain you without SAF, the detention is illegal and whatever they obtain as a result of the detention (evidence or arrest) cannot be used against you in court.
How does this all work in practice? Suppose the police stop you because it is late at night, you are walking around the city, "you look at them funny", look "strange" or are homeless or the wrong color.
The officer says "Excuse me, may I talk to you?" You say alright. You have just consented to talk to the police. If the officer notices after talking to you for a while that you have spray paint on your finger or wheatpaste on you clothing, or notices a bulge in your coat, the officer can find cause to detain you and could eventually arrest you.
If, however, you said "no, I have to go" the officer is supposed to let you go because he or she doesn't have SAF that you are involved in criminal activity just because you look funny and it is nighttime. The courts have found all of the facts mentioned above insufficient to justify a detention.
If the cop says, "well, you can't go" or otherwise detains you, then if they do find reason to arrest you, you may be able to avoid the penalty because the original detention was illegal. If the officer detains you and finds nothing, you should complain to the city, the "police review commission" in your town (if there is one) and you should let COPWATCH know about what happened.
COPWATCH - (510-548-0425).
Often (except as noted below), when you start throwing around terms lik e "detention" and "specific and articulable facts" the cop is going to lay off. A lot of the police's power is intimidation and the public's ignorance.
It is crucial that you let the officer know that you are not "consenting" to talk to him and that the only way you will talk to him is if he detains you.
There may be SAF in some circumstances. If you rob a bank wearing red pants and a string tie and are spotted 15 minutes later in those same clothes carrying a white money bag reported missing by the bank, the police will probably have SAF. There is nothing illegal about a police detention if they have SAF, but not just anything is a "specific and articulable fact" supporting suspicion that you are involved in criminal activity.
The facts have to be very specific. A lot of "police harassment" situations involve the police stopping people because they "look wrong" and then going on "fishing expeditions" looking for a valid reason to arrest which they didn't have at the beginning of the stop. Don't give the officer a chance to find anything out - Just Say "No".
What if the officer asks to search? More serious than consensual contact and detention is an arrest. For an arrest, the police need a high level of suspicion of your involvement in criminal activity. If you are arrested, the police can search you as part of the arrest.
If the officer asks to search you without arresting you, you can say "no." The police have the right to search for weapons if they feel in danger of being attacked. They are not allowed to search people for other items. In a lot of cases the police ask to search someone and obtain "consent" to search. Even though the search isn't justified, it will be legal because the citizen didn't object and therefore "consent" is presumed.
If the officer asks to search you or any of your property, say no and ask if you are under arrest or if they have a warrant. If you aren't and they don't, tell them "I would rather not let you search." They may ask many times and seem to be acting with complete authority. Just Say No. You will not let them search you unless they arrest you or have a warrant, and you don't have a weapon.
If they search anyway and find something, you may be able to escape the penalty later in court. If the cop is obeying the law, they should leave you alone. The fact that you refused to be searched does not make you more "suspicious" and give them an excuse to search.
Of course as stated above, the police may ignore all of these laws and they may be less than polite and non-violent. When a cop gets out of control, deal with it carefully. But don't voluntarily consent to either a search or a detention.
Once you are under arrest, offer no physical resistance, volunteer nothing and answer no questions. Nothing you can say will pevent your being handcuffed and taken to the station for booking. Anything you say can be used as evidence against you in court. Resistance to handcuffing and any police actions/orders will get you an automatic "Resisting Arrest" charge as well as any number of injuries as the police use whatever force they deem necessary against you until you comply with their directions. Your only response to any interrogation from the moment that you are told that you are under arrest should be "I want a lawyer".
Karl makes some good points below, but please remember that the cop has a gun. "Contempt of cop" is a serious crime in the eyes of many police officers. -Craig
From: karl@genesis.MCS.COM (Karl Denninger)
"Those few with heart enough to ask whether they are under arrest are
often answered with a question:
'Why? Do you want to be?'
'Then sit the fuck down.'"
The correct response to "Why? Do you want to be?" is "You did not answer my question. Am I under arrest? If I am not I desire to leave now."
That sharpens the point a little, but is still non-confrontational.
The next round is to state that "Under the Constitution and Bill of Rights of the United States, I am free to leave unless I am being detained or under arrest.
I desire to exercise those rights. I desire to leave now.
May I leave?"
If the discussion continues beyond this point you're probably detained or under arrest from a legal perspective. If you're still in the building at this point then your next utterance ought to be "I want a lawyer. Now."
Liberty: Our most precious gift
Police State Conspiracy
STOPPED BY THE POLICE
Driver Licensing vs. The Right To Travel
The Police Contact: Silence Is Golden
By Carl F. Worden
I have debated writing this article for months. I am a strong supporter of law enforcement, and I have an extensive background in law enforcement. Even now, I have a number of conflicts which cause me great concern with how the information I am about to impart to you will be used. I do not want to enable the criminals in our society to thwart justice, but I am committed to protecting the innocent from what appears to be an explosion of police abuse. In a case like this, I choose to protect the citizens.
I will start with law enforcement contacts with regard to traffic stops for suspicion of driving under the influence of alcohol or drugs.
The Fifth Amendment of the Bill of Rights states that we are not to be forced to incriminate ourselves. The actual wording is that you cannot be "compelled" to be a witness against yourself. If you are stopped for suspicion of DUI, these are your rights, regardless of the laws of your state.
First, you are to deny having consumed any alcoholic beverages whatsoever. You are never to admit to having one or two drinks. If you admit to consuming even one drop of alcohol, you open the door to probable cause, allowing the police officer to search your vehicle for open containers. Next, you are never to submit to a field sobriety test. You are to refuse to do so.
They cannot make you walk the line, balance or anything else.
If arrested, you are to refuse to allow a blood or breath test, regardless of what state law requires, such as revocation of driving privileges for a period of time.
That is an attempt to compel you to be a witness against yourself.
Supreme Court decisions in this area are quite specific with regard to your rights as follows: Lefkowitz v. Turley, 94 S. Ct. 316, 414 U.S. 70 (19 73). "The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding civil or criminal formal or informal, where the answers might incriminate him in future criminal proceedings."
McCarthy v. Arndstein 266 U.S. 34, 40, 45 S. Ct. 16, 17, 69 L.Ed 158 (1924) , squarely held that "the privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is a party defendant." Maness v. Myers, 95 S Ct. 584, 419 US 449 (1975). "...where the Fifth Amendment privilege against self-incrimination is Involved ... This Court has always construed its protection to ensure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action... The protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution. Hoffman v. United States, 341 US. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1] 18 (1951) . "
"In Kastigar v. United States, 406 U S 441, 92 S Ct. 1653, 32 LEd. 212 (1972) , we recently reaffirmed the principle that the privilege against self incrimination can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. Id., at 444, 92 S.Ct., at 1656; Lefkowitz v. Turley, 414 US. 70, 77, 94 S. Ct. 316, 322, 38 L.Ed. 2d 274 (1973)...
Miranda v. Arizona, 86 S.Ct. 1602, 384 US 436 (1966) . "We have recently noted that the privilege against self-incrimination --- the essential mainstay of our adversary system-is founded on a complex of values ... To maintain a fair state individual balance, to require the government to shoulder the entire load ... to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth... ln sum, the privilege is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will."
"...there can be no doubt that the Fifth Amendment privilege is available outside. of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves."
Please also note: The above, as stated by the Supreme Court, are rights and privileges as guaranteed by the Constitution, and anyone (including judges) who knowingly violates those rights may be civilly and criminally liable under several federal statutes. Please see: United States Code, Title 18 Section 241 (Conspiracy against rights), and Section 242 (Deprivation of rights under color of law); Title 42 Section 1983 - Section 1986 (Civil Rights). Most attempts to pursue action under these laws fail, but very skilled litigators with good factual circumstances can sometimes get some satisfaction. However, if more individuals were to understand the above rights and exercise them at the appropriate times, more successful litigation could be the outcome.
Okay, you got that?
You cannot be forced to provide evidence against yourself, therefore you must not allow any tests whatsoever, be it field sobriety "walking the line", or a blood or breath test. Period. If you will follow these instructions, they have no case against you and they are also barred from taking away your driving privileges under the same Supreme Court rulings.
Now to more serious matters: If you are contacted as a possible suspect, or even a witness, in any other law enforcement investigation, you are to say nothing.
You are to say nothing even when your attorney is present.
You are to say nothing, regardless of evidence of your guilt as presented by the law enforcement officers.
You are not to try to explain away the circumstances of the evidence they present to you. You are to say absolutely nothing.
No matter how tempted you are to try to talk your way out of the situation, you are to give them absolutely NOTHING to verify.
If they ask you if the sky is blue on a clear day, you are to say nothing.
You are to give them nothing whatsoever.
Whatever evidence or witness information they have, you are to say nothing.
Even denying any of their allegations can be used against you in a prosecution if it is determined later that you obviously lied.
You are to stay MUTE.
The reason for this is quite simple: The evidence the law enforcement officers have is all they must be required to work with. Don't give them anything more. The only time you should consider the option of telling your side of the story is to your attorney in privacy, or in a court of law if prosecuted.
Because you have stayed mute, giving law enforcement nothing in addition to the extrinsic evidence and witness information at hand, the burden of proof available to the district attorney is severely limited and will most often result in a dismissal of charges unless their evidence and witness input is overwhelming and compelling enough for a grand jury to return a bill of indictment.
And even if bound over for trial, the jury will be limited to consider only that evidence and witness input.
When you are given your Miranda Rights wherein you are informed that anything you say can and will be used against you, take it to heart: If you say absolutely nothing, NOTHING can and will be used against you in a court of law.
There are literally thousands of people behind bars today who tried to talk their way out of a law enforcement contact.
Don't fall for the ploy. Law enforcement officers are trained to bluff you into making denials or statements.
They will appear friendly and reasonable.
They will appear willing to help resolve the matter.
They will tempt you to talk about it and appear sympathetic.
Don't fall for it.
Give them nothing.
Give them NOTHING.
Stick your tongue between your teeth and bite down - HARD.
You are to be a marble statue.
You do not exist.
You have no past, you have no address, you have no name, you have no social security number.
You are to give them nothing whatsoever to work with.
The Police Contact: Silence Is Golden
Mankind's most valuable possessions are privacy, solitude, and anonymity.