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Learn your rights regarding police searches; Interesting Reading.

Discussion in 'Legal' started by Vernal45, May 20, 2005.

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  1. Vernal45

    Vernal45 member

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    http://www.cnn.com/2005/LAW/05/18/colb.circumcision/index.html
    Learn your rights regarding police searches
    Can police search home if you say 'no' then your spouse says 'yes'?

    By Sherry Colb
    FindLaw Columnist
    Special to CNN.com

    (FindLaw) -- 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?

    This question is important because a large number 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.
    Why police want consent

    Ordinarily, police must have a good reason to invade your privacy. If an officer wants to search your home, the Fourth Amendment requires that she first obtain a warrant -- after demonstrating to a neutral magistrate that she has probable cause to believe 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.

    A simple "Go ahead" in response to "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.

    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 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 a rhetorical question that does not really allow a negative response. The occupant of the residence might hear an implicit "We could do this the easy way (with consent) or the hard way (without consent) -- it's 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.

    The Supreme Court has said no. According to the Court, the fact that a person might not know he has the right to refuse a search is merely one factor in the determination of whether his consent is voluntary.

    The Court has reasoned that the police do not need to 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 OK

    It is with this positive perspective on consent searches that the Supreme Court addressed the question of third-party consent. Third-party consent occurs when the person who gives police permission is not 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 grounds for a search warrant, or do not want to bother to try convincing a judge. 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 don't. 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 cabinet? Perhaps you and your roommate agreed that you would use the shelves on the wall and your roommate would use the medicine cabinet.

    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 included the medicine cabinet, the police have done nothing illegal.
    Disputes: Government 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 besides the suspect.

    But this time, the police have already requested consent from the suspect and been told no. 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 non-consenting 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 frequently leave your key in the ignition. Your neighbor gets into your car and drives around on errands without ever asking you for permission.

    That person has illegally taken possession of your car. It is no defense 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 a 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: The other side

    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. 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 OK.

    In this scenario, if your neighbor claimed "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 OK 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).
    Court should rule against 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 they are frequently a needless invasion of privacy that wastes 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 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 Colb, a FindLaw columnist, is a professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark, New Jersey.
     
  2. Hawkmoon

    Hawkmoon Member

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    This is one of the few times I find myself in agreement with a FindLaw columnist. She's exactly correct -- this is just like if Mom tells me I can't have an ice cream cone before dinner I'll go ask Dad, If he says no I'll ask Grandma, and so on ...

    Seems logical enough to me that if the police are investigating the husband (for example), and the husband says "No, you may not search my house," any subsequent permission by the wife should apply only to the wife's possessions, not to those the husband told them they could not look for/at.
     
  3. Carnitas

    Carnitas Member

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    Interesting that she doesnt discuss children, or house guests.

    Can my cousing who's staying over for the night on a road trip provide consent? How about by 6 year old,.... what if he's 12,... 16, 18, 20????
     
  4. geekWithA.45

    geekWithA.45 Moderator Emeritus

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    Makes me wonder if I oughta just post a sign...

    "No Consent To Search Is Granted - The Owner".
     
  5. rwc

    rwc Member

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    State laws and state supreme court decisions may provide you greater protections than those provided under federal constitutional decisions. Know the laws of your jurisdiction if this worries you...
     
  6. Preacherman

    Preacherman Member

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    Sounds to me like one's reply to a police officer should be "No, I do not give you permission to search, and I further prohibit you from seeking such permission from anyone else, as I am the only person with the authority to give you that permission."

    That should sort out any potential conflicts.
     
  7. Crosshair

    Crosshair Member

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    OOOOOOOOOOO, I hope the Court makes it harder to pull stuff like this article mentions. :)

    Morning officer what can I do for you.
    Can we come in and look around.
    You got a warrant.
    I can have one in an hour.
    See ya later. *Slam* :D
     
  8. 2nd Amendment

    2nd Amendment member

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    What an interesting thought. Would it hold any legal standing whatsoever?
     
  9. NHBB

    NHBB Member

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    I had an issue with this in my college days, over a minor marijuana indiscretion. I absolutely refused despite the coaxing.. " ill have to seal off the room and wait for a warrant, it could take hours". I told him, do what you have to do, but there is no way I am giving you consent to search. this even after he barged in and looked around anyways. then the other questions... "well if you have nothing to hide, why cant we look? it will only take a couple minutes..."

    no thanks, and yeah I was guilty of smoking a little something in there, but in the end I was able to fend them off. college kids.. what can you say, I was pretty ignorant of the law then but I knew the basics. I think most offer consent in an effort to look innocent, and then it backfires when it was their legal right to say in so many words... "up yours".

    btw this does not reflect in any way my opinions of LEO who I hold in high regard, but the bullying tactics used by some are the source of disdain for the system in general for many people.
     
  10. rick_reno

    rick_reno member

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    I expect this court - which hasn't been generous with the 4th Amendment - to rule in favor of the state.
     
  11. DSRUPTV

    DSRUPTV Member

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    It seems to me reasonable that if the first answer was a no then it should stand and the officer should go try to get a warrant. I, by the way, am very supportive of Police Officers, but even when I had "arrest search and seizure" in B.L.E.T. I thought there could be problems to one person being able to give consent to search common areas like the roomate example. I also think that many people need to take steps to be more educated about their rights.
     
  12. centac

    centac member

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    Does anyone know of any research, and I dont mean an online poll, but actual, rigorous, scientifically sound research, that has measured the general public's knowledge of their rights?

    In articles like this you see a lot of inferences that people may or may not know what thhier rights are, but I've never seen any actual measures taken.
     
  13. Vernal45

    Vernal45 member

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    The majority of people do not know there rights, in regards to consent searches. That is why police easily run rough shod over citizens to gain consent.

    When you are read your rights, you are told you do not have to say anything. I think, like the Texas Bill that LEO's dont want, the police should inform you that you have the RIGHT not to consent to a search. Will that happen? Nope, police wont give up their power.
     
  14. centac

    centac member

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    Do you have any evidence to back that up, or is that one of the things that "everybody knows?"

    A lot of time when I Mirandized people I'd ask them to explain their rights to me, most all of them knew that they didnt have to say anything, answer any questions, and that they could have a lawyer present. Some agencies even use a "participating Miranda" where people are tested on their prior knowledge of their rights.

    In asking for a consent to search I was always taught that the officer had to explain that the person was free to not consent, in essence advising them of their right to refuse.
     
  15. Mr. X

    Mr. X member

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    Most of those folks either watched a lot of "NYPD Blue" etc. or had run-ins with the police before. People who have little experience with the law are those who are most vulnerable.

    Considering many folks don't know who the VP is or the Heliocentric Theory of the Solar System, no thanks to Copernicus, Keppler or Galileo and nearly 500 years of knowledge, do you think they know something as "inconsequential" as their rights?

    Exactly what I was wondering.
     
  16. Biker

    Biker Member

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    I'm really not trying to jack this thread, but for the life of me, I can't find a quote function on this board. Am I missing something?
    Thanks and appologies.
    Biker
     
  17. Vernal45

    Vernal45 member

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    I wish the cops that have pulled me over and asked if they could search had been taught that way, when I answered no, the response varied to either "if you have nothing to hide" or "we can get a warrant". The intimidation factor makes some folks cave. What academy did you go to that taught you to explain to the person that they were free to not consent? I want to send them a letter of appreciation.
     
  18. centac

    centac member

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    That's probably because motor vehicles fall under a different exception to the warrant requirement - the Carroll Doctrine. Motor vehicle searches and dwelling searches are not comparable.


    Have'nt you said that you are an ex-cop?
     
  19. Vernal45

    Vernal45 member

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    California v. Acevedo [500 U.S. 565 (1991)]. Concluded that searches of containers in automobiles without a warrant were constitutional if probable cause for the search existed.

    Carrol Doctrine:

    Court held that a law enforcement officer would not need a search warrant to search a motor vehicle (based on probable cause to believe that an item subject to seizure was inside) if that vehicle were on public property. This is the "automobile exception" to the warrant requirement of the Fourth Amendment (also known as the Carroll doctrine).


    This has not one thing, nothing, to do with what we are talking about on this thread. To put you back on track: We are discussing CONSENT SEARCHES, and citizens rights to refuse to consent


    And I was really beginning to believe that you are/were a cop. :scrutiny:
     
  20. centac

    centac member

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    The point being that consent isnt needed to search a motor vehicle. We ask for consent as a means of covering all the bases, same way as we sometimes Mirandize people who are not in custody. But you know this, being an ex-cop and all, right?

    You brought up motor vehicles ("I wish the cops that have pulled me over and asked if they could search......"), not me.
     
  21. Vernal45

    Vernal45 member

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    So, as a cop, you are saying a cop can search any vehicle, any time, without consent.

    When I was a cop, unless you had PC, you could not search a vehicle. The case law you quoted said as much. If you think you, as a cop can search a vehicle at any time, without consent, I predict many cases overturned with you. A cop MUST have either CONSENT of PC to search a vehicle.



    Again, this thread is NOT, I say again, NOT about vehicle searches, containers in vehicle searches. IT IS ABOUT:

    Learn your rights regarding police searches
     
  22. 2nd Amendment

    2nd Amendment member

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    I think you'll want to edit that eventually...
     
  23. Vernal45

    Vernal45 member

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    NAH, dont edit it. Let people know what you really think, and let them know you are for expanded police power. Stand up for what you believe in. :evil:
     
  24. centac

    centac member

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    OF COURSE you have to have probable cause, that's a given. What possible reason could you have for searching a vehicle, or anything for that matter, for which you dont have PC?
     
  25. Vernal45

    Vernal45 member

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    BY CENTAC:


    BY CENTAC:


    Which one is it? NO CONSENT NEEDED. Or CONSENT IS NEEDED WHEN PC IS NOT ESTABLISHED.
     
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