pcgizzmo wrote:I just don't understand why people insist on arguing w/LEO's. It's a no win situation. Even if there wrong your going to have to do what they are asking.
Yes, arguing may be no win, but refusal may not be. If you're asked to consent to a search, the police may not have probable cause. If you don't give your consent and it turns out they don't have probable cause they may not be able to introduce the results of their search into your trial if you end up being charged with something.
If you give your consent then all of the evidence will be admissible.
VMI77 wrote:And if, for instance, the police ask to search your car, how do you know you don't have anything to hide? How do you know some passenger, one you might not even know about --such as an acquaintance of a teenage son or daughter's friend-- didn't drop a joint, or a prescription bottle of some controlled substance under the seat?
Once, while at work, I was walking through the parking lot and happened to look in the backseat of one of the engineer's car and saw a bong. I knew the engineer so I told him about it. At first he didn't know what I was talking about, but we went outside and I showed him. He just shook his head and said, "my son must be smoking that wacky weed again." We worked in a secure facility so he could have been fired from the job or arrested if security happened to see it.
Last edited by WildBill on Thu Apr 07, 2011 11:00 am, edited 1 time in total.
VMI77 wrote:
Yes, arguing may be no win, but refusal may not be. If you're asked to consent to a search, the police may not have probable cause. If you don't give your consent and it turns out they don't have probable cause they may not be able to introduce the results of their search into your trial if you end up being charged with something.
Correct.
This is why I added what I did to my signature line.
I hope Mr. Richards wins a hefty lawsuit on the police and school's dime.
It's been a while since I attended a real campus, but I recall every school I attended having a policy that anything brought on campus was subject to search. While it was not a requirement of law, it was part of the agreement between the school and the student. Do they still do that today?
If the cops were acting as representatives of the school and asked him to leave, hasn't he committed criminal trespass by refusing to leave? That's the only thing I could see him being charged for.
Commander Cody wrote:With nothing to hide he should have complied with the request to search… IMHO.
Really? That guy in New Jersey who got a seven year prison sentence for having unloaded guns secured and locked in the trunk of his car didn't think he had anything to hide either. I don't have anything to "hide," so I should be AOK with the police searching me or my car or my house any ole' time they want? Sorry, "nothing to hide" isn't the standard embodied in the Constitution --left alone when there isn't probable cause is the standard for liberty. There may be some unusual circumstances where I'd consent to a search --this particular circumstance would probably be one of them-- but normally I'm not going to consent.
If "nothing to hide" is the standard then eventually you'll find you have the kind of government you do have something to hide from. Gun owners should be especially concerned when there is already, among other things, pending legislation to ban magazines over 10 round capacity. According to the NRA, the Bill is written such that possession of pre-ban magazines will merely be an affirmative defense at your trial, and you'll have to prove you bought them before the ban.
I don't totally disagree with you but, are you going to not comply? You know that's going to end badly for you. The sad thing is we really have very little control if a LEO wants us to do something. We have to comply or face the alternative. I just hope that the LEO I'm dealing with is a good person and well meaning. Beyond that there is little we can do until after the incident is over with.
Commander Cody wrote:With nothing to hide he should have complied with the request to search… IMHO.
Really? That guy in New Jersey who got a seven year prison sentence for having unloaded guns secured and locked in the trunk of his car didn't think he had anything to hide either. I don't have anything to "hide," so I should be AOK with the police searching me or my car or my house any ole' time they want? Sorry, "nothing to hide" isn't the standard embodied in the Constitution --left alone when there isn't probable cause is the standard for liberty. There may be some unusual circumstances where I'd consent to a search --this particular circumstance would probably be one of them-- but normally I'm not going to consent.
If "nothing to hide" is the standard then eventually you'll find you have the kind of government you do have something to hide from. Gun owners should be especially concerned when there is already, among other things, pending legislation to ban magazines over 10 round capacity. According to the NRA, the Bill is written such that possession of pre-ban magazines will merely be an affirmative defense at your trial, and you'll have to prove you bought them before the ban.
I don't totally disagree with you but, are you going to not comply? You know that's going to end badly for you. The sad thing is we really have very little control if a LEO wants us to do something. We have to comply or face the alternative. I just hope that the LEO I'm dealing with is a good person and well meaning. Beyond that there is little we can do until after the incident is over with.
If the search is on your person, then I agree that isn't much to be done at the scene. If they really want to search you on the street they will do so whether it is before or after you are handcuffed. Just don't resist and risk having additional charges added.
On the subject about searches of houses, vehicles, etc I totally disagree. You can refuse a search and the LEO has a choice of letting you go, getting a search warrant or performing an illegal search. You can request that you call a lawyer before consenting to a search.
Last edited by WildBill on Thu Apr 07, 2011 11:47 am, edited 1 time in total.
Commander Cody wrote:With nothing to hide he should have complied with the request to search… IMHO.
Really? That guy in New Jersey who got a seven year prison sentence for having unloaded guns secured and locked in the trunk of his car didn't think he had anything to hide either. I don't have anything to "hide," so I should be AOK with the police searching me or my car or my house any ole' time they want? Sorry, "nothing to hide" isn't the standard embodied in the Constitution --left alone when there isn't probable cause is the standard for liberty. There may be some unusual circumstances where I'd consent to a search --this particular circumstance would probably be one of them-- but normally I'm not going to consent.
If "nothing to hide" is the standard then eventually you'll find you have the kind of government you do have something to hide from. Gun owners should be especially concerned when there is already, among other things, pending legislation to ban magazines over 10 round capacity. According to the NRA, the Bill is written such that possession of pre-ban magazines will merely be an affirmative defense at your trial, and you'll have to prove you bought them before the ban.
I don't totally disagree with you but, are you going to not comply? You know that's going to end badly for you. The sad thing is we really have very little control if a LEO wants us to do something. We have to comply or face the alternative. I just hope that the LEO I'm dealing with is a good person and well meaning. Beyond that there is little we can do until after the incident is over with.
Generally speaking I'm going to "comply," but I'm not going to "consent." If I am asked to consent to a search I will say no, and if they search anyway, I will repeatedly say that their search is being conducted without my consent, hopefully in front of witnesses.
"Journalism, n. A job for people who flunked out of STEM courses, enjoy making up stories, and have no detectable integrity or morals."
VMI77 wrote:Generally speaking I'm going to "comply," but I'm not going to "consent." If I am asked to consent to a search I will say no, and if they search anyway, I will repeatedly say that their search is being conducted without my consent, hopefully in front of witnesses.
WildBill wrote: You can request that you call a lawyer before consenting to a search.
I didn't know this. This is good info.
You can always ask. Good luck trying to get one to show up. If you did have one show up he/she would probably advise the officers that they do not have permission. Meanwhile you might be stuck at the side of the road or where ever you are for hours upon hours.
My point is that you don't have to consent to a search. If the police perform an illegal search you have a better chance of getting the charges dismissed.
The prosecutor is going to drop this. If the officers had grounds for a Terry search, they would have done one. Instead they kept asking his consent to a search which indicates to me that they didn't believe they had grounds for a search.
Second, the officers asked him to leave but he didn't. If he was unlawfully there after the officers asked him to leave, they would have charged him with trespass. But they didn't.
So they charged him with resisting an officer or interference with an officer. How is he interfering by asserting his constitutional rights against search and seizure and by refusing to leave a place he had a right to be???
This clearly is a case of contempt of officer which made result in an arrest but is unlikely to go any further.
stroo wrote:The prosecutor is going to drop this. If the officers had grounds for a Terry search, they would have done one. Instead they kept asking his consent to a search which indicates to me that they didn't believe they had grounds for a search.
Second, the officers asked him to leave but he didn't. If he was unlawfully there after the officers asked him to leave, they would have charged him with trespass. But they didn't.
So they charged him with resisting an officer or interference with an officer. How is he interfering by asserting his constitutional rights against search and seizure and by refusing to leave a place he had a right to be???
This clearly is a case of contempt of officer which made result in an arrest but is unlikely to go any further.
VMI77 wrote:And if, for instance, the police ask to search your car, how do you know you don't have anything to hide? How do you know some passenger, one you might not even know about --such as an acquaintance of a teenage son or daughter's friend-- didn't drop a joint, or a prescription bottle of some controlled substance under the seat?
This is why I will never consent. I had a friend who said he would consent if an officer asked him, but I told him pretty much your example. He said good point.
I know of someone who consented search to their body (pockets) and that produced illegal drugs and he kicked out of school. I don't know what to think of this person (1) because he did drugs even though he thought it was the synthetic, legal kind and (2) he consented to a search when he knew he had contraband (the synthetic drugs, if legal, still was not allowed by rules).
I went looking for that video from a law school forum where a lawyer and an officer talked about not consenting to searches. I didn't find it, but I did find a lot of other interesting stuff. It led me to one question, which is directly relevant to this thread.
It is my understanding if an officer gets consent, he can search anytime the person is not otherwise being detained. If the officer stops someone for speeding and still has his license and registration, he cannot legally obtain consent because the person doesn't feel free to leave. If he hands back the license and then asks, he can obtain proper consent and search for no reason but consent.
If an officer has a reasonable suspicion, he does not need consent and can detain and search the person and his property. Some officers still ask for consent in order to do a reasonable suspicion search. Then you go from there to needing a warrant, but that doesn't apply here.
So the question is, when you're the one the police are asking to search, how do you know if the search would require your consent or if it doesn't? How do you know if you can legally turn them down? Is the only way to directly ask, "Am I free to say no and go?" Is there a kinder way of not incurring the officer's contempt?
It's obvious that if the officer provided the option of leaving, it would be wise to do so. Let's assume some objectively compelling reason leads you to remain in the location (unlike the man in this scenario) just to eliminate that from the equation.
Pray as though everything depended on God. Work as though everything depended on you. -St. Augustine We are reformers in Spring and Summer; in Autumn and Winter we stand by the old; reformers in the morning, conservers at night. - Ralph Waldo Emerson
Hoi Polloi wrote:I went looking for that video from a law school forum where a lawyer and an officer talked about not consenting to searches. I didn't find it, but I did find a lot of other interesting stuff. It led me to one question, which is directly relevant to this thread.
This one?
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You can not consent and still have a good interaction with a (reasonable) LEO. As I get older I rarely have any interactions with LEOs, but I have always refused to consent from the time I was 18. I always start with " Officer, I am not trying to make your day hard, but I don't consent to any searches of my person, belongings, etc." We thought our neighbor passed away last year, and when the LEO camed to my front door I told him through the door "let me put some pants on and I will meet you outside in 5." I have zippy to hide, but it is my property...and my rules.
If you give your consent then all of the evidence will be admissible.
If you did have one show up he/she would probably advise the officers that they do not have permission. Meanwhile you might be stuck at the side of the road or where ever you are for hours upon hours.
