Radley Balko is not doing anybody any favors with this latest screed. He is a self serving liar who knows better, but in the interests of furthering his agenda, deliberately misleads those he seeks to inform. In today’s Washington Post he proposes that refusing a search is a right not a provocation. https://www.washingtonpost.com/news/the-watch/wp/2016/07/19/refusing-a-search-is-a-right-not-a-provocation/ There is one small kernel of truth in that statement and a whole lot wrong.
I am neither arrogant nor dumb enough to offer advice on the topic of warrantless search and seizure to a potential audience located in fifty states and 94 Federal Judicial Districts in 1500 words or less. To attempt to do so is a recipe for disaster. Misinformation could lead to the loss of life or liberty. I’ll leave that to Mr. Balko. I will point out some areas to consider if you care to do additional research. Just make sure it is specific to the jurisdiction where you live.
The United States Constitution, Bill of Rights in the Forth Amendment bans unreasonable searches without warrant. Not all searches without warrant are unreasonable. In fact, the Supreme Court recognizes at least fourteen circumstances where a search without warrant is reasonable and evidence obtained as a result, is admissible.
There is an erroneous belief that searches without warrant are illegal, this is untrue. Volumes of case law are dedicated to deciding what is allowed and what is not. If lawyers and trial court judges can’t agree after hours of debate, where does that leave John Q Public who must act in moments?
Mr. Balko is playing games, that can get somebody hurt or killed, but it won’t be him. Mr. Balko conflates consent and cooperation and implies that lack of consent along with lack of cooperation is a right. In this he is wrong. In Texas, you may withhold consent to search, but you cannot resist a search. To do so becomes a separate offense. A person subject to search has a legal obligation to cooperate. By cooperate I mean not impede or interfere.
“Consent” is one of the circumstances where a subsequent warrantless search may be held to be legal. There are certain hurdles that police must overcome. 1. The person giving consent must be capable of giving consent (control of property, old enough to understand, in possession of mental faculties). 2. The person must be told what it is the police expect to find. 3. That the person giving consent can refuse to give consent or withdraw the consent at anytime. 4. Consent is given freely and voluntarily (written or recorded encounter aids this requirement) When these circumstances are met the Supreme Court has ruled that there is no constitutional violation because the person waived those rights.
Understand that Consent is just one arrow in a police officer’s quiver. It is the lowest level of confrontation. If the officer is rejected on the consent issue, he may have other equally valid alternatives at his disposal. When the officer chooses to exercise those alternatives the suspect has an obligation to cooperate and not resist.
What does this mean as a practical matter? As a police officer in an encounter I’m going to tell you what you know, but not what I know.
Let’s say I have stopped you for a traffic violation. From the time I signaled you to stop, until the time that you stopped you traveled three blocks. Speed and conditions are not a factor, you could have stopped sooner but didn’t. While I was waiting for you to pull over I observed the passenger roll down the window and began fanning the air. I observed the driver glance down to the right and then his right shoulder dipped. These observations start me thinking that the occupants are in possession of marijuana and are trying to conceal that fact.
As I walk up to the car I observe the passenger spraying Febreze around the interior of the car. During my contact with the driver I notice that his eyes are heavy lidded, bloodshot, and he is doing the best damn imitation of Tommy Chong, I’ve seen lately. Despite the efforts of the passenger, the odor of some good skunk weed comes wafting from the car.
What is a cop to do? Old school cops would jerk both occupants from the vehicle, pick them up by the ankles and shake to see what falls out of their pockets and then attack the car. Once the stash was found arrest both individuals and then try to figure out how to write the whole thing up.
An alternative is for the cop to engage the driver about the business in hand, the original violation. This gives the officer time to assess both individuals and their surroundings, are there marijuana cigarette butts in the ashtray? How about roach burns on the seat? Forget seeds, how toasted are these guys? When he is ready the officer then asks for consent to search the car. If he obtains consent, the only search and seizure issue that remains is the original traffic violation. But this is about refusing consent, so that is what our driver does. At this point is the cop supposed to go away empty handed?
Nope, he lost the first gambit, there are thirteen more warrantless search protocols that may apply. Given everything he has observed to this point the officer has probable cause and reason to believe that these two are in possession of marijuana, both can be arrested and the area immediately around them and their persons are fair game for a search. The officer may conclude that both are intoxicated, same result, a lawful search incident to arrest. With computers in every patrol car the officer may find arrest warrants for either or both occupants, again search incident to arrest. The officer might argue that he has probable cause to believe that the vehicle contains contraband, marijuana and because of the movable nature of the automobile there is no time to obtain a warrant, Carroll Doctrine Vehicle exception.
By refusing to consent to the search of his vehicle, the driver has exercised all of his rights to the extent that he can. The officer is going to search the car and people and he is going to do it legitimately. There is nothing else, at the scene that the driver can legally do. He has an obligation under the law to cooperate and not resist arrest or search. To do otherwise, likely triggers a high level misdemeanor or felony charge.
Understand, cut rate Clarence Darrow antics at this point do not communicate legal niceties but may indicate an intent to resist what necessarily must follow. The officer is under no obligation to back down and, in fact, under the pure language of the Code of Criminal Procedure, may be compelled to move forward, to investigate and arrest offenders of the penal code. Active physical resistance may amount to a felony.
Balko and his ilk will maintain, when an incident goes wrong, “it was only a misdemeanor”. But they leave out the rest, until the suspect turned it into dangerous felony through active resistance and a felony assault.
By all means if you don’t want the cops rooting through your stuff tell them. “I do not consent.” Sometimes, cops ask for consent as a habit, especially on traffic stops. When you tell them no they don’t make an issue of it, they were looking for a reaction. What they are searching for is probable cause or a legitimate way around the probable cause requirement. Your consent to a search removes the requirement that police have probable cause to search.
When the police tell you they are going to search despite your objection, what they are saying is: “We think we have probable cause.” Maybe they do, maybe they don’t. This issue is not going to be decided on the side of the road or at two in the morning. It is going to take judge to make the final determination.