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Refusing consent to a search

Discussion in 'Legal' started by Carbon_15, Apr 21, 2009.

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  1. coloradokevin

    coloradokevin Member

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    Your refusal to consent does not in any way provide probable cause, or reasonable suspicion, to an officer. It might give the officer a hunch about what you are doing, but hunches aren't admissible in court!

    Having said that, depending on the circumstances of any given contact, you may find that an officer asks for consent, gets the consent denied, but still performs a legal search. By way of example, if I stop a driver of a vehicle who has a suspended license, I have the ability to impound that car (and often do impound that car). Having made the decision to impound that car, I am now obligated to conduct an "inventory search" of that vehicle prior to placing it in our impound lot. But, I also like to cover all my bases, so I'll often ALSO ask for consent before I search the car (even though I can legally search the car, and will do so before it is towed).

    Personally, I see this question come up a lot, but I doubt it is anything that most of us will ever need to confront. I will rarely ask for consent if I don't have a real good hunch that I will probably find something illegal. Moreover, many years ago (long before I was a cop) I was a kid with quite the lead foot. I got pulled over quite a few times, and ended up with a few tickets along the way. I was never asked even once to have my vehicle searched in all of these stops. I'm not saying that it can't happen, but I don't think it is a real problem that most people will need to deal with.
     
  2. Sergeant Sabre

    Sergeant Sabre Member

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    You're doing to the police (a group of people unlike yourself) exactly what the "antis" you all so despise do to gun-owners (a group of people unlike themselves) "Antis" think you all are beer-swilling, camouflage-wearing, machine-gun toting, senseless violence-loving rednecks the same way you think cops are amoral, power-drunk rights-haters. Puh-leeze.
     
  3. Sergeant Sabre

    Sergeant Sabre Member

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    (As if it matters now)

    To the original poster's question: The courts have always said that exerting one's rights can not be used as an element of suspicion. That said, I've never had anybody refuse consent to a search. In my experience as a police officer I have observed that innocent people are eager to show themselves as such.
     
  4. Sergeant Sabre

    Sergeant Sabre Member

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    Wow, 'nother double-tap
     
  5. Spreadfire Arms

    Spreadfire Arms Member

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    SergeantSabre wrote:

    do you mean you've never had an innocent person refuse a consent search or you've never had anybody ever refuse a consent search?

    that's pretty smooth talkin'! :D i have nothing to hide if they want to search go ahead. they won't find anything interesting. although i can see why a person would refuse because they don't have the time, don't feel like giving permission, or the last time they consented a cop turned the car upside down, etc.
     
  6. Sergeant Sabre

    Sergeant Sabre Member

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    I've never had anybody refuse consent to search.
     
  7. ravonaf

    ravonaf Member

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    I would be honored to be your first. :D
     
  8. Kind of Blued

    Kind of Blued Member

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    While I don't mean to throw this thread off-topic, I may be finally turning it ON-topic by mentioning SOBRIETY CHECKPOINTS. This was never even remotely gun-related to begin with, so I don't see the harm in going down that avenue (punny, eh?).

    DUI Checkpoints are essentially a category all their own. Probable cause isn't needed for a stop, reasonable suspicion isn't needed for a stop, they've been deemed unconstitutional in some states, constitutional by the SCOTUS, and they can be considered an "administrative stop" in which disobedience or uncooperative behavior can be grounds for (what I would consider) harassment. Sobriety checkpoints pass the "Three-pronged Brown test" (from Brown v. Texas (1979)) which means that they're effective enough, and serve enough of a legitimate state interest to be toleratd even though some level of intrusion is involved. This test was applied, and sobriety checkpoints were deemed constitutional in Michigan Department of State Police v. Sitz (1990).

    Now, that being said, Sitz left things up to the states. What does this mean for you? It depends, but from what I've read, it could be damn near anything they think up.

    Again, if this is something that might be worth talking about, or of interest to the OP or others, run with it. I've just recently begun looking into the issue, so I'm sure I could learn something.
     
  9. Sergeant Sabre

    Sergeant Sabre Member

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    Well, that's fine. Absent consent, or any other exception to the search warrant rule, you'd go.

    I've actually had a lot of people bring up the search first. For example, I might ask "Is there anything illegal in the car?", and they would respond "Nope. Go ahead and search." A lot of people answer that way.
     
  10. Kind of Blued

    Kind of Blued Member

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    Mark me down as being in the "I never consent to searches. Ever" crowd.

    While I don't mean to throw this thread off-topic, I may be finally turning it ON-topic by mentioning a situation which, in a way, does apply to the OP's question. I'm speaking about, of course, SOBRIETY CHECKPOINTS. This thread was never even remotely gun-related to begin with, so I don't see the harm in going down that avenue (oh look, a pun :)).

    DUI Checkpoints are essentially a category all their own. Probable cause isn't needed for a stop, reasonable suspicion isn't needed for a stop, they've been deemed unconstitutional in some states, constitutional by the SCOTUS, and they can be considered an "administrative stop" in which disobedience or uncooperative behavior can be grounds for (what I would consider) harassment. Sobriety checkpoints pass the "Three-pronged Brown test" (from Brown v. Texas (1979)) which means that they're effective enough, and serve enough of a legitimate state interest to be tolerated even though some level of intrusion is involved. This test was applied, and sobriety checkpoints were deemed constitutional in Michigan Department of State Police v. Sitz (1990).

    Now, that being said, Sitz left things up to the states. What does this mean for you? It depends, but from what I've read, it could be damn near anything they think up.

    Again, if this is something that might be worth talking about, or of interest to the OP or others, run with it. I've just recently begun looking into the issue, so I'm sure I could learn something.
     
  11. Sergeant Sabre

    Sergeant Sabre Member

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    Yep. It was Michigan that took sobriety checkpoints all the way to the US Supreme Court and won. Then, Michigan turned around and declared them illegal. Odd, huh?
     
  12. runrabbitrun

    runrabbitrun member

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    Man, no wonder these poor fellows at the check point
    were not sure how to handle this situation.
    (I'm talking about the vid, where the BP lets the guy
    go with-out going to the secondary, for further inspection.)

    The laws are so confusing anymore it's insane.
    But from what I can tell it appears that SCOTUS says: You can't do that.

    Here's the snip from findlaw that our good friend cassandrasdaddy provided for us.
    It's ok dude, comprehension of the various laws can be very confusing.
    No wonder the BP where scratching their heads on this one.
    All in all I think we have to give the BP kudos.
    They showed remarkable restraint other than the one guy brandishing his num chucks
    and then later wanting to grab at the guys camera.
    (At least we didn't see a 'Rodney King' type incident and that's a good thing.)

    These guys have a tough job and I'm sure
    we are all very grateful for their service.
    But I must conclude if going through any permanent BP checkpoint,
    just co-operate with the stopping officers
    (Var R your papers) and then move along.

    Yes it's an inconvenience, but the world has changed since 911.
    And the border problem is a huge one.
    At the same time we must also be vigilant
    to assure that the authorities don't abuse
    their power.
    What the guy did (in the vid I'm referring to) and IMO...
    was challenge the authority and he won, in this particular situation.

    Your mileage may vary. :)
     
  13. rscalzo

    rscalzo Member

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    Not aware of it and on the outset would not make any sense.
     
  14. waterhouse

    waterhouse Member

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    Secondary is not a search. Secondary is a place to go if more time is needed for any reason. Probable cause is not required to send someone to secondary. Probable cause is required to search a vehicle (unless one of the exceptions comes up, but we won't get into those.) Someone not answering your questions and refusing to lower the window would, I'm positive, be seen by the courts as a good reason for sending them to secondary.

    These checkpoints are right on the highway. Major highways. They look like toll booths, but without any sort of EZ pass. If you imagine everyone taking out their change to toss in the basket at a tollbooth, that is about how fast traffic should flow through a checkpoint. If someone needs more time (they are searching for their "quarters") there is a small parking lot off to the side. This is "secondary." It allows further questioning without blocking highway traffic. Once again, despite what the preacher thinks he knows about the law, there is no probable cause needed to send him to secondary.


    The dog alerting may or may not have been BS. There are cameras at the checkpoints. If this goes to court I assume the handler will have to show on film when his dog alerted. You can't assume that the alert is BS because they never found anything. The dogs are sometime wrong. They are correct with a high enough percent that the Supreme Court has deemed it probable cause, but the dogs are still sometimes wrong. Also, sometimes the dogs are right and nothing is found. I doubt this was the case with the preacher, but if someone smoked a joint in the car a week before, the dog would likely hit on that. There would be no physical evidence, but the dog would have been "correct" in alerting.
     
    Last edited: Apr 23, 2009
  15. waterhouse

    waterhouse Member

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    Just to clarify, it is different for Customs than it is for Border Patrol as well. Customs deals with people legally entering the country at ports of entry. Essentially you have no privacy rights, and they can search your car without probable cause, to the point of tearing it apart. Border Patrol can't do this. They deal with people entering the US illegally at points other than ports of entry. Once in the US, they are afforded the same rights as anyone else, and the BP needs probable cause or a warrant to search a vehicle.
    I disagree. Do you want to know why there are so many (sometimes 30-50) cameras at BP checkpoints? It is because the Agents requested them. I'd say about one third of people we arrest claim we stole something from their car. Usually within a few minutes of being put in the cell, they request a supervisor and say they had a bunch of cash in the glovebox, or once a guy said his diamond bracelet was on the front seat. Now there are cameras that cover just about every angle of a car in secondary (where searches would happen). These cameras were put in place to protect Agents from false accusations, which are common.

    Yes, there are some bad Agents out there. Right when I joined they caught 2 Agents involved in a checkpoint drug smuggling ring. However, most Agents, and I would gather most cops, want everything they do on camera as a protective measure. It is a lawsuit happy world we live in, and no one wants to be sitting at a desk because of a false accusation.
     
    Last edited: Apr 23, 2009
  16. waterhouse

    waterhouse Member

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    Again, they don't need probable cause to secondary the vehicle. They only need PC to search the vehicle.

    Secondary is just an area to continue questioning if something seems suspicious or if the driver needs more time to collect their paperwork (this 2nd part applies almost exclusively to Mexican citizens legally in the US with a passport that they left in the trunk. I am not saying that US citizens need to collect their paperwork to go through a checkpoint.)

    What happened is that a driver would not answer questions and was acting outside the norm. The agents asked him to go to secondary to stop blocking traffic. Again, all the agent initially needed to hear was "I'm a US citizen."

    When this answer did not come, and the window wouldn't roll down, the agent's "red flags" went up and he asked the man to go to secondary for further questioning. At this point the driver assumes he is going to be searched, and starts talking about the 4th Amendment. Many people here assume the same. Most cars that go to secondary are not searched. Most are on their way within 3-5 minutes, as opposed to 6 seconds when going through primary.

    The reason they let him go is probably because the supervisor said "He's blocking traffic, and acting like an ass, but he seems to be American, and that is all we care about, so let him go."
     
  17. kanook

    kanook Member

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    I gave consent to search once. 45min. 6 deputies,and 2 k9 units later I was told I was free to go with a warning. I looked at the deputy with a puzzled look and he said he wasn't giving me a ticket for running a stop sign on 40th st. The irony is i wasn't even on 40th, I was on 42nd and that street has a traffic light.:D
     
  18. ravonaf

    ravonaf Member

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    I won't argue there. If I was that guy I would have went to secondary and I would have rolled my window down at least a few inches. To be fair, they repeatedly said they wanted to search the vehicle and they had no probably cause for that.
     
  19. FatB

    FatB Member

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    Quick question for the resident border agent (at least I think your an agent based on your last couple of posts)...is there a statute that makes one criminally liable for not stopping and cooperating at a checkpoint? I only ask because it seems like in the two scenarios with the preacher, they had a difficult time trying to figure out what law was being broken by his lack of cooperation, other than seemingly relying on traffic statutes.

    As for the issue with the dog alerting, I guess it just seems suspicious to me that they wouldn't allow the dog to sniff the trunk in front of the DPS officers, so that's why I called b.s. Of course most of that is pure conjecture on my part (as well as on others) as we don't have enough information as to what actually took place, simply because the only info we have is that given by the preacher.

    Anyway, some interesting info in this thread! And btw, you have a tough job and I, for one, am appreciative of the work your department does.
     
  20. waterhouse

    waterhouse Member

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    I'm no longer in the BP, but I was for a time and I spent a lot of that time working a checkpoint.

    To be honest, I don't know about a statute about blocking traffic. Our only real job is to catch illegals. Sometimes we happen to catch drugs, but we don't even deal with them. As soon as we catch drugs the DEA is called and they take over the case. There is a statute about speeding through a checkpoint, but I don't recall one about stopping and blocking traffic. I've actually spoken to some friends that are current agents and none of us has ever seen someone not go to secondary when they are asked, so this incident is very rare.

    In the second incident, the driver would not move his car to secondary. The BP called DPS, who has authority on the highways.

    The BP is very good at discussing "new" things at muster. If there is a new smuggling technique in California, you can bet that the next shift that goes out in Texas will have heard about it. Word travels fast.

    As I said in an earlier post (and this is just a guess), probably within a few hours of this incident the higher ups had heard about it and seen the checkpoint video tapes. They probably met with some attorneys to figure out what to tell the agents to do the next time this happened. I'm guessing that they said "If he blocks traffic again, call DPS, since they have the authority to deal with someone blocking a highway."

    The previous paragraph is purely opinion and is based on no first hand experience, as I never dealt with anyone like that at a checkpoint.
     
  21. Deanimator

    Deanimator Member

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    The technical term for such people is "fools". They're also sometimes known as "Richard Jewell" or the "Duke Lacrosse Team".

    To paraphrase Cristina Ricci from one of the Addams Family movies, "They'll ALWAYS be the victim."

    Add me to the list of people who NEVER consent to ANYTHING. If you're gong to go on a fishing expedition, you'd better not violate ANY of the fish and game laws. I know how to make poaching VERY expensive for you.
     
  22. waterhouse

    waterhouse Member

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    True. I agree that the Agents looked flustered and some of them spoke when they shouldn't have. I probably wouldn't have done any better in the situation. Even guys with 300 pounds of pot in their trunk go to secondary when you ask them to, so I'm sure this was a new experience for everyone.

    I agree. We were taught to always ask for consent, because with consent you don't even have to bring up PC in court. It is funny, the guys with all of the pot in the trunk usually consented to a search. I guess by that point they had given up, but I always thought it was weird.

    Twice in my life I've been asked, and twice I've refused consent to search, once for my vehicle and once for my ice chest. Both times the officer asked why, and both times I stated that I felt not enough people exercised their constitutional rights. Both cops smiled and thanked me for my time.
     
  23. jimmyraythomason

    jimmyraythomason Member

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    I hate random check points/license checks et.al. Legal or not doesn't matter. I am going somewhere specific and have (usually) a set time to be there or I would not be on the highway in the first place. At a random check point I have to wait my turn to prove that I am not commiting a crime while those ahead of me are proving that they are not commiting a crime. Time of wait is increased by those who consent to be searched so by the time it is MY turn, I am late for where I was going and generally ticked at the delay so my mood isn't the best. Yet...I still treat the officers with respect and expect the same from them. BTW, to the officer..do not refer to me by my first name,I haven't given you that liberty. I will refer to you as "officer" and you refer to me as "Mister", thank you.
     
  24. TheVirginian

    TheVirginian Member

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    I was under the impression that the Border Patrol officers were Customs Officials. My bad if they are not. It would seem that would be their jurisdiction even if their specific function was to catch illegal immigrants. I'd also suspect that they were expected to help stop smuggling activity as well, even by US citizens, hence the "off the immediate border" checkpoint.

    It isn't reasonable to expect the entire border to be "sealed" just because there are a few known legal crossing points. That's why they have a "patrol" - it's a huge border. I think the guy in question here is just a psycho who wants to be a martyr for attention and profit. He probably desires to draw a parallel with the persecution of Jesus by Rome. :rolleyes: We'll likely see him getting busted later in some sick cult scandal or being ousted from his congregation for being a crook when they finally see the light... :p

    A little more info on this whacko's "writings": http://www.dailykos.com/story/2009/4/16/193830/967
    -Bill
     
  25. waterhouse

    waterhouse Member

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    We all work under DHS now under the heading of Customs and Border Protection, and there is some slight sharing of high dollar resources (vehicle x-ray machines, sometimes helicopters, etc.), but the two groups have different missions and very different laws apply to each.

    The main difference is that at Customs, you haven't been admitted to the U.S., so they can get away with a lot more stuff like search without cause.

    In the BP, we had to assume that you were here legally and prove otherwise, which meant we couldn't just start searching you without probable cause.
     
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