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Refusal for Search question

Discussion in 'Legal' started by seeker_two, Dec 23, 2003.

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  1. seeker_two

    seeker_two Member

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    I have a question about how much effort you can put into refusing to let an LEO search your vehicle....

    Hypothetical Situation: You are pulled over in a traffic stop. You give your DL/Insurance/CCW(if applicable) to the LEO. He asks for permission to search you vehicle. You refuse. He asks you to exit you vehicle. Before you exit your vehicle, you roll up your window. Then, when you close you door after exiting, you use your remote to lock the car. The LEO tells you to give him your keys so that he can conduct a search.

    Questions:
    1. Can you legally refuse to turn you keys over to the LEO?
    2. If you refuse to turn over your keys, is this grounds for arrest?
    3. Will the refusal to turn over your keys be considered (along w/ you verbal statements) as a refusal of consent to search or simply obstructing justice?
    4. Are there any other strategies that one can use to prevent an illegal search?

    Haven't had this happen to me, but I want to find out in case it ever does.

    Thanks in advance...:)
     
  2. Jeff White

    Jeff White Moderator Staff Member

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    Don't argue law on the side of the road.

    If you refuse to give consent to search and the officer insists on searching, let him. Document it and go to court. If he finds any contraband, it will be suppressed. Don't start discussing the 4th amendment or other points of law on the side of the road. You will most likely lose that discussion and that may have other repercussions.

    Get a lawyer and win in court. The courtroom is the proper place to have that discussion. I know this isn't going to be a popular answer, but it's the right one. The offcier (no matter how wrong he might be) isn't going to lose this arguement on the side of the road. The entire system is set up so the side of the road arguement is always won by the officer. Beat the search in court.

    Or you can move to Illinois. For the last several months the state supreme court has made it illegal to ask for consent to search during a traffic stop. Just had a couple rulings back in November that forbade the asking of ID for passengers in a car without being able to articulate probable cause and one that forbids routinely running the passengers in a car for warrants. At least in Illinois, your car is becoming as safe from government intrusion as your home is.

    Jeff
     
  3. TheeBadOne

    TheeBadOne Member

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    Nemo sine vitio est
    Jeff White

    [​IMG]
     
  4. Bacchus

    Bacchus Member

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  5. Leatherneck

    Leatherneck Member

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    Cool Gif, TBO. And Jeff's reply did merit applause, IMO.

    TC
    TFL Survivor
     
  6. .45&TKD

    .45&TKD Member

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    Hypotheticaly

    I read the info at http://www.flexyourrights.org/

    What if you are pulled over, you give your driver's license and CCW, and tell the officer, "my weapon is IWB on my right hip"; can they ask you to give them the weapon?

    Or, can you refuse to give it to him for fourth ammendment reasons?

    How about if they just ask if you have any weapons in the car and you have one in the trunk? Do you lie, tell the truth, or refuse to answer?

    If you admit to having a weapon in the trunk, does that give them reasonable cause to search your car?
     
  7. Cal4D4

    Cal4D4 Member

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    I don't know about you, but I would be very leery about reaching for a weapon whether or not I thought I was asked to. If the officer wants it, I would turn and let him get it. Prevents a setup or misunderstanding. Refusal to give it up sounds like a chance to get taken down or shot. Got to figure that the officer is armed also and may be nervous. Everybody has heard that "action beats reaction" and these guys are in the business of controlling unknown people under difficult circumstances. LEO can own the side of the road.
     
  8. TallPine

    TallPine Member

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    From the FlexYourRights website:

    :confused:
     
  9. Jeff White

    Jeff White Moderator Staff Member

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    .45&TKD asked;
    Yes, they can ask that.

    I'm not sure about all states, but I believe that in most places you have to surrender the weapon. See my answer above. The side of the road is not the place to aruge constitutional law. Personally if I asked you to give me your weapon and you refused, you would be looking down the barrel of my dept issue Glock 21 as you were relieved of your weapon by my backup officer. This is an officer safety issue. I don't think any court in the country would rule that the officer had to allow you to remain armed for the duration of the enforcement action. The U.S. Supreme Court ruled in Terry vs. Ohio that an officer had the right to conduct a pat down search of anyone he could articulate he felt could constitute a threat. This also permits the officer to secure any weapon that he may discover.

    Never lie. It's best to say nothing. If you lie, you could be charged with obstruction of justice. Even if the search is ruled illegal and the court suppressed any contraband that was found, they may not dismiss the obstruction charge. So you still may be facing a felony conviction.

    That would depend on the circumstances and the jurisdiction. If you were prohibited from possesing a weapon, that admission might be cause to detain you while a warrant was obtained to search the trunk.

    The best thing you can do is comply with every request the officer makes and don't say anything that might incriminate you. If you are arrested, get an attorney and follow his or her advice.

    Jeff
     
  10. Telperion

    Telperion Member

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    Jeff - how would you recommend documenting an officer's actions if you refuse consent? If I had to go before a judge in this scenario, I'd prefer it not be my word against an officer's as to whether I consented to a search.
     
  11. P95Carry

    P95Carry Moderator Emeritus

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    Indeed Jeff ... following on from Pipsqueek's post. How DO you ''document'' the sequence of events - us I mean!

    If in the end (unless video gives enough audio to help) ....... it becomes the old ''he said - she said'' deal ..... surely the poor driver will always lose out! That is what concerns me most, unless I had viable witnesses myself .. but so often it might be just one of us ..... on our own.

    Always seems to appear as a ''lose-lose'' scenario.:(
     
  12. Jeff White

    Jeff White Moderator Staff Member

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    The great majority of officers out there are good officers and don't want to do anything illegal. If you say "no you can't search", that will most likely be the end of it.

    Excercise your rights under the 5th amendemnt and don't say anything until you talk with your attorney. Your attorney is better equipped to to present this case before the judge. It's not really going to be your word against the officers. You'll have your attorney preparing a motion to suppress whatever evidence was seized in the illegal search. Let your attorney worry about how to present it to the judge.

    In most cases the officer won't conduct a search of a vehicle if he or she is alone. It's not a safe way of doing things. So if you state that you don't give consent to search loudly enough for the other officer(s) to hear you are now putting them in a position where more then one officer will have to perjure himself. Not that it's never happened, but in real life the police don't make a habit of breaking the law to arrest someone. I can't tell you the number of times I've been present where someone who we knew had contraband refused to consent to search and drove away at the end of the traffic stop. You guys need to stop watching The Shield so much. For the most part your employees are good, honorable people who won't break the law to hassle you.

    Jeff
     
  13. yy

    yy Member

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    thank you Jeff White

    You've given sound, solid advice.


    The officer at the scene has command. That's what i alwasy remind myself of. The officer has the weapon. The officer is the boss.


    BUT, without becoming an officer myself, and short of taking ride-alongs, I have no clue when I do or do not have a right to refuse an officer. This is because not all orders are requests (and vice versa)


    I've seen the following verbal trick so many times on Cop shows that it has to be part of the standard operating procedure..

    Officer: You dont mind if I searched your car, right- do you have anything to hide?

    detainee: ... bluster...


    The correct answer is, "no you may not search" followed by silence. But the two questions fly by so fast that even I (the TV audience) don't feel comfortable saying "yes -- I mind" at all because the mind focuses on the second question. That second question demands a "no" if I want to be in the good graces of the officer. And I believe officer training takes advantage of that sentiment very much. Such tricks use my desire to please authority to work against my best interest (give up rights and legal protection)

    Forgive me if I find such training 'evil' or at least manipulative and find offense at being assumed to be a criminal when I thought I am being "protected and served". (yeah, I know, officer safety drove such training)

    edited to add: And that's my round-about way of saying, please tell us more about what requests/orders can we refuse? Or should refuse.
     
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