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Thread: Consenting to be Abused

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    Regular Member Mainsail's Avatar
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    Consenting to be Abused
    The problem with "voluntary" roadside searches
    Steve Chapman | July 31, 2008

    If I approach as you pull into a parking space and ask if you'd mind my rummaging through your car, the chances are at least 90 percent that you'd decline. But if a police officer stops you with the same request, the chances are higher than 90 percent that you'd agree. Something about that badge makes citizens eager to be helpful.

    Or maybe not. In civics class and Fourth of July speeches, we are told that American democracy rests on the consent of the governed. But interactions with the police serve as a useful reminder that government rests less on voluntary cooperation than on fear and force. A nation is free to the extent it prevents the rulers from bullying and coercing the ruled. By that standard, American society still has a way to go.

    The other day, the American Civil Liberties Union of Illinois issued a report on "consent searches" that sometimes accompany traffic stops. Relying on data provided by local and state law enforcement agencies, the report documented that black and Hispanic drivers are much more likely than whites to suffer such invasions—even though the cars of minorities are far less likely to yield contraband.

    These treasure hunts are called "consent searches" because they require the motorist to give permission. They take place only when the police officer has no grounds for suspicion. If he has probable cause, he doesn't have to ask. Only when he's acting out of a vague hunch, racial prejudice, or simple malice does he need the driver's consent.

    But the term is fantastical in these instances. Stopped on a lonesome stretch of highway, at the mercy of an armed man who has the power to arrest, very few citizens feel free to refuse. The Illinois State Police report that 94 percent of white motorists and 96 percent of minority ones "consent" to such searches.

    Is that because they have nowhere else they'd rather be? Is it because they get a kick from watching a cop take apart their cars in an effort to put them behind bars? Or could it be because they suspect that refusing a cop is far too dangerous?

    More than 40 years ago, the Supreme Court ruled that before interrogating a suspect in custody, police have to provide the now-familiar warning: You have the right to remain silent; you have the right to an attorney; anything you say may be used against you.

    Said the court, "The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating and works to undermine the privilege against self-incrimination." Only a firm safeguard, in the form of the magic words, could "dispel the compulsion inherent" in these situations.

    The same inherent compulsion exists in traffic stops, but the court declined to follow its own logic. So the Fourth Amendment ban on unreasonable searches is virtually meaningless on the roadside.

    But the court's myopia is no reason a state can't abandon this obvious abuse on its own. As it happens, "consent" searches are a fool's errand. Fully 94 percent of the time, the Illinois State Police discover nothing illegal—meaning they inconvenience and humiliate 16 innocent people for every guilty one they turn up.

    Nor is the Land of Lincoln unique. When the Texas legislature took up a bill limiting such searches, the Texas Municipal Police Association admitted that "the vast majority of the time, we found nothing."

    Other states have found that effective law enforcement doesn't demand hassling citizens who have done nothing to justify suspicion. In 2002, New Jersey's state Supreme Court recognized the obvious: "These searches are not voluntary because people feel compelled to assent" and concluded that consent "that is the product of official intimidation or harassment is not consent at all."

    It ruled that police may not search a car without "an articulable suspicion that the search will yield evidence of illegal activity." The following year, the Minnesota Supreme Court followed suit. Rhode Island banned them by statute in 2004.

    As the ACLU argues, that is the only sensible solution. In Illinois, the burden of these searches falls disproportionately on racial minorities, but achieving perfect racial equity would not alter their oppressive nature.

    In a nation founded on respect for the rights of every person, these searches give all priority to the power and convenience of the government, while mocking the liberties we are supposed to have. Why would we consent to that?

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    Good article. Yay for police state America.

    He did forget one aspect of this whole thing though. "Probable cause" isn't hard to find. Your simple refusal to consent to the needless search is probable cause enough for 99% of officers in police state America. It goes something like this:

    Cop: "Do you mind if I search the vehicle."

    Citizen: "I'd rather you not."

    Cop: "Why? You have something to hide?"

    Citizen: "No, sir."

    Cop: "Step out of the vehicle please."

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    Regular Member Mainsail's Avatar
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    AWDstylez wrote:
    Your simple refusal to consent to the needless search is probable cause enough for 99% of officers in police state America. It goes something like this:

    This is not true. The asking of the question means the officer doesn’t have enough suspicion to justify a search. You can (and should) say no. You DO NOT have to provide a reason why you don’t want to be searched, you do not have to answer the question when he asks.

    You only response should be: “Am I free to leave?”


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    Regular Member AZkopper's Avatar
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    People always have a right to say "no". They often do. Are you implying that we should set an even higher bar for LE? That LE cannot even ask for consent? That absent a warrant, even if a motorist pleaded with an officer to search his car, he couldn't?



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    ^Why should they even bother to ask if they don't have probable cause? What's the point of searching the car of a person that has done nothing to warrant a search? Is this Nazi Germany where we have random spot checks simply because the officer felt like it?



    Mainsail wrote:
    AWDstylez wrote:
    Your simple refusal to consent to the needless search is probable cause enough for 99% of officers in police state America. It goes something like this:

    This is not true. The asking of the question means the officer doesn’t have enough suspicion to justify a search. You can (and should) say no. You DO NOT have to provide a reason why you don’t want to be searched, you do not have to answer the question when he asks.

    You only response should be: “Am I free to leave?”

    I'm well aware of that and I agree with you 100%. I was just saying how far the abuse has gone. If you get asked, your car is getting searched whether you want it to or not. That's the bottom line. I've never heard of a case of refusal in which the car didn't end up getting searched anyway. Any officer I've dealt with or heard of takes your refusal of a search as "probable cause" because they assume you have something to hide. It's obviously a gross violation of rights, but since when is that anything new to the police?


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    Regular Member Michigander's Avatar
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    I think this guy does a nice job of telling the police to leave him alone.

    http://www.youtube.com/watch?v=Fv8hoQYeVl0
    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

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    Regular Member jbone's Avatar
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    Though "probable cause" was the smell of pot rolling from the car, a naked baby with multiple bruises, a sawed off on the back seat, beer cans throw about the car, person has warrants for his arrest that kind of stuff. Not because I have a tail light out (example).Not for just because?
    Im proudly straight. I'm free to not support Legalization, GLBT, Illegal Aliens, or the Islamization of America.

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    AZkopper wrote:
    People always have a right to say "no". They often do. Are you implying that we should set an even higher bar for LE? That LE cannot even ask for consent? That absent a warrant, even if a motorist pleaded with an officer to search his car, he couldn't?

    What do you mean by people "often" say no to searches? That's pretty vague. Do you think it's 5%? 20%? Whatever the figure,in my opinion it's not high enough. I think 100% of the people should know their rights enough to decline a request to search (wishful thinking, I know).

    I would agree that a higher standard is necessary.LawEnforcementshould be held to a higher standard to keep from abusing their power and infringing on the rights of citizens.

    LE has no power to search without probable cause. Why should they be allowed to ASK people to give up their rights? I think it's a pretty sneaky and underhanded way for a cop to gain even more power, and the practice needs to stop. I don't care if a LEO finds 1 piece of contraband for every 16 searches, or even if they gotone for every two searched. It goes against everything this country was founded on to violate the rights of innocent people just to catch one breaking the law.

    If LEOs are going to insist to continue the practice of asking to search, I think there should be something the officer is required to say:


    "You have a right to decline consent to any search of your vehicle, person, or contents. You are not currently under arrest, and are not being detained. Anything I find in my search may be cause for citation or arrest andused as evidence against you in a court of law. May I search your vehicle?"
    I'm not saying the officer has to have a warrant to search, but to do so without a warrant there does need to be very probable cause or proof a crime is being committed.

    The article nails it at the beginning: Would you let your neighbor search your car? Letting an officer do it is much worse, because he's been granted more powers to screw up your life than your neighbor has.

    That last statementis just plain silly: WHY would anyone plead with a cop to search their car?

    ..."Help, officer! I can't find my crack pipe! I know I dropped it in here somewhere!"...
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    I'm reminded of an episode of Cops where a guy got stopped and was asked to submit to a consentual search. The guy had been stopped before and had an extensive record, and knew his rights accordingly. After some back-and-forth about "why not - are you hiding something?" and the guy standing mute, he then screwed up by asking the cop to hand him his cigarette pack off the dashboard. Ten more seconds and the police would have relented and let him go, all except for the crack pipe that was sticking out of the cigarette pack. Bad career move.

    After my last experience with the police, I will no longer confirm or deny whether I'm armed or not. If you admit to having weapons in a vehicle, they will search the car to secure the weapons, in the name of "officer safety." If you deny having any and are caught lying, they can charge you for that. When in doubt, shut up, absolutely.

    -ljp

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    Campaign Veteran deepdiver's Avatar
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    Cop: "Do you mind if I search the vehicle."

    Citizen: "I'd rather you not."

    Cop: "Why? You have something to hide?"

    Me: "Can I search your vehicle?"

    Cop: "No"

    Me: "Why? Do you have something to hide?"

    Cop: "No, but I have firearms in the car."

    Me: "I have a CCW and I also have firearms in the car for which no license or permit is required in this state. We have both been background checked, found to not be felons, chronic misdemeanor offenders, but you also know I have not been guilty of domestic abuse or drug or alcohol related charges in the last five years, which I don't know about you because such charges preclude me from having a CCW but to not preclude you from being a position to carry a gun and ask to search my car. But pretty much, we are both deemed safe and legal by the state to have, carry and be around firearms and are generally law abiding citizens. So, tell you what, you can search my car if and only if I can simultaneously search yours. Deal?"


    :celebrate
    Oh if only I could get away with it. How far into such a conversation before I am laying over his hood handcuffed and frisked? While I have refused vehicle searches on 2 occasions, I have never been a smart aleck about it. They were both simple matters of:

    Cop: Do you mind if I look in your vehicle.
    ME: I certainly do mind and deny any permission to search my vehicle.
    Cop: Ok then. Have a good day.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    Regular Member Decoligny's Avatar
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    Orygunner wrote:
    AZkopper wrote:
    People always have a right to say "no". They often do. Are you implying that we should set an even higher bar for LE? That LE cannot even ask for consent? That absent a warrant, even if a motorist pleaded with an officer to search his car, he couldn't?

    What do you mean by people "often" say no to searches? That's pretty vague. Do you think it's 5%? 20%? Whatever the figure,in my opinion it's not high enough. I think 100% of the people should know their rights enough to decline a request to search (wishful thinking, I know).

    I would agree that a higher standard is necessary.LawEnforcementshould be held to a higher standard to keep from abusing their power and infringing on the rights of citizens.

    LE has no power to search without probable cause. Why should they be allowed to ASK people to give up their rights? I think it's a pretty sneaky and underhanded way for a cop to gain even more power, and the practice needs to stop. I don't care if a LEO finds 1 piece of contraband for every 16 searches, or even if they gotone for every two searched. It goes against everything this country was founded on to violate the rights of innocent people just to catch one breaking the law.

    If LEOs are going to insist to continue the practice of asking to search, I think there should be something the officer is required to say:


    "You have a right to decline consent to any search of your vehicle, person, or contents. You are not currently under arrest, and are not being detained. Anything I find in my search may be cause for citation or arrest andused as evidence against you in a court of law. May I search your vehicle?"
    I'm not saying the officer has to have a warrant to search, but to do so without a warrant there does need to be very probable cause or proof a crime is being committed.

    The article nails it at the beginning: Would you let your neighbor search your car? Letting an officer do it is much worse, because he's been granted more powers to screw up your life than your neighbor has.

    That last statementis just plain silly: WHY would anyone plead with a cop to search their car?

    ..."Help, officer! I can't find my crack pipe! I know I dropped it in here somewhere!"...
    ...Orygunner...
    Gee, according to the statistics quoted in the article in the OP, the percentage of people who "often do" is under 10%.

    "But if a police officer stops you with the same request, the chances are higher than 90 percent that you'd agree. "

    Looks like "often do" is really "not so often do".

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    deepdiver wrote:
    Cop: Do you mind if I look in your vehicle.
    ME: I certainly do mind and deny any permission to search my vehicle.
    Cop: Ok then. Have a good day.
    That's how I intend to handle the situation if it ever arises. I just don't understand why anyone would want to smart off to a guy with the authority to turn your bad day into a really bad day. If you don't want to talk to a cop, fine. If you are willing (and I have been in the past), be polite and courteous. Midnight on the side of a dark highway is not the time or place to address your issues with how you are being treated.

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    Regular Member AZkopper's Avatar
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    So is the problem that LE can ask for consent or that Joe Citizen doesn't say "no" more often?

    And if we are going to hypothetically scratch consent searches, how about "probable cause" and "resonable suspicion"? Neither term is found in the Constitution, and violate the basic principal of the 4th Amendent.

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    Regular Member Decoligny's Avatar
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    AZkopper wrote:
    So is the problem that LE can ask for consent or that Joe Citizen doesn't say "no" more often?

    And if we are going to hypothetically scratch consent searches, how about "probable cause" and "resonable suspicion"? Neither term is found in the Constitution, and violate the basic principal of the 4th Amendent.
    And exactly how do searches based on probable cause and reasonable suspiscion violate the 4th amendment?

    The 4th amendment protects us from "unreasonable" search and siezure.

    "Reasonable" suspiscion kind of states that it isn't "unreasonable". And reasonable suspiscion has less of a requirement than probable cause.

    Would you have the police be totally unable to search anyone unless they actually saw them commiting the crime?

    If there is a report of a store being robbed by a 6 foot 7 inch white male wearing a Boston Red Sox hat and a NY Yankees T-shirt (God forbid), and you just happen to be a 6 ft 7 white male and dressed like that, you can bet that any search of you and your vehicle is not protected under the 4th amendment because it is totally reasonable to assume that you are the criminal described.

    REASONABLE suspicion and PROBABLE cause are what is REQUIRED of the police to ensure that they don't violate the protections of the 4th Amendment.

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    Regular Member rodbender's Avatar
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    The one experience I had: Austin, Tx local cop stopped me for a tail light out.

    Cop: Is it OK if I search your vehicle?

    Me: No, sir, it is not.

    Cop: Why not?

    Me: Because I don't want you to.

    Cop: I could just call the canine unit and have the dogs walk around your vehicle.

    Me: Go ahead.

    Cop: Might take 'em a couple of hours to even get here.

    Me: I've got time, I'll wait. (I lowered the tailgate and sat down on it without asking)

    Cop: Goes back to his car, runs my license and tag probably. Comes back, hands me my license, and turnsand heads forhis car. Says not a word.

    Me: CanI go now?

    Cop: Never turning to look at me says, "Yeah, Get the F out of here"

    Me: Thank you, sir. Have a nice evening.

    I don't think he was too happy.
    The thing about common sense is....it ain't too common.
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    I just wanted to clarify, because there seem to be some that that are mistaken on the issue:

    Not consenting to a search does NOT, repeat NOT constitute probable cause.

    I think where some may be getting confused is that LEOs will often TELL you that not consenting is grounds for probable cause.

    Yes, that's right ladies and gentlemen, cops will (gasp!) LIE to you in order to get you to freely give up your consitituional rights. They will also intimidate, cajole, and try to trick you into it, too. The scary thing is that all of that is LEGAL in most states (maybe even all). It is up to YOU to brave all of that chicanery and intimidation, and stand up for YOUR rights. It is also up to you to KNOW your rights, because the cops sure won't tell you, other than the miranda rights they are FORCED to read to you.

    No one can take away your constitutionally guaranteed rights without due process, but LEOs can do all kinds of underhanded, nasty things to try to get you to give them up freely, and they are successful well over 90% of the time. Don't be a victim!

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    Can anyone tell me under what circumstances an LEO may search my vehicle. Probably Cause obviously, but I mean must he tell me what his PC is or can he just think to himself, "I see a baggie of a white powdery substance on the floor, that's PC to search" then order me out and go ahead with his search.

    I think I read somewhere something about a Supreme Court (?) ruling that often searches of vehicles can be done without warrants due to the mobility of vehicles and the ability of suspects to dispose of evidence while the police get a search warrant.

    Is there a difference between Reasonable Suspicion and Probable Cause as it relates to vehicle searches, especially if stopped for only a traffic violation?


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    Regular Member AZkopper's Avatar
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    DKB wrote:
    Can anyone tell me under what circumstances an LEO may search my vehicle. Probably Cause obviously, but I mean must he tell me what his PC is or can he just think to himself, "I see a baggie of a white powdery substance on the floor, that's PC to search" then order me out and go ahead with his search.

    I think I read somewhere something about a Supreme Court (?) ruling that often searches of vehicles can be done without warrants due to the mobility of vehicles and the ability of suspects to dispose of evidence while the police get a search warrant.

    Is there a difference between Reasonable Suspicion and Probable Cause as it relates to vehicle searches, especially if stopped for only a traffic violation?
    LEO may search:

    1. With a warrant

    2. Incident to an arrest

    3. With consent

    4. Exigency

    A "Terry search" patdown for weapons may be conducted on a subject if he is legally detained (reasonable suspicion of a crime being commited or having been comitted) and there are articulatable facts to suport the search.

    Yes, there is also the "vehicle exception" to this. You pretty much summed it up in your post.

    Reasonable suspicion = articulatable facts that can be used to justify detaining someone for further investigation.

    Probable cause = enough evidence to arrest someone or charge them with a crime.

    A LE does not need to inform you of his PC before ordering you out of the car and searching.

    Decolignywrote:
    And exactly how do searches based on probable cause and reasonable suspiscion violate the 4th amendment?

    The 4th amendment protects us from "unreasonable" search and siezure.

    "Reasonable" suspiscion kind of states that it isn't "unreasonable". And reasonable suspiscion has less of a requirement than probable cause.
    Well, people are arguing here that consent searches are "unreasonable", despite what the courts have held, so why stop there? You are unilaterally determining that Probable Cause and Reasonable Suspicion are OK, but not Consent.

    Decolignywrote:
    Would you have the police be totally unable to search anyone unless they actually saw them commiting the crime?
    No, I am arguing in favor of consent searches. I was playing devil's advocate.

    Decolignywrote:
    If there is a report of a store being robbed by a 6 foot 7 inch white male wearing a Boston Red Sox hat and a NY Yankees T-shirt (God forbid), and you just happen to be a 6 ft 7 white male and dressed like that, you can bet that any search of you and your vehicle is not protected under the 4th amendment because it is totally reasonable to assume that you are the criminal described.
    Yes, you would have reasonable suspicion to detain him for further investigation and conduct a Terry search on him. Should he have evidence of the crime on his possession or an eyewitness could identify him, you would then have Probable Cause to arrest him. Had he been in a vehicle, you could then search it without a warrant, for additional evidence.

    There was a court case back in the late 90's, early 00's, out of Florida I think. In Re: John T. (I believe). An annonymous caller reported that there was a black teenager on a certain street corner with a gun in a backpack, and gave a clothing description. Cops went there and found John T., matching the description to a tee. They detained him and searched him and found a gun in his backpack. The case was thrown out, because the annonymous tip alone, regardless of the detail, was not enough to search him. (this is a paraphrase based on my recolection, exact details may be wrong, but the concept involved is sound).

    And as far as suspect descriptions go, the description could be for aman in a clown wig, wearing a zoot suit, on a skateboard, and you'd probably find three different guys in the area matching that description. It just seems to always work out that way.



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    Regular Member Deanimator's Avatar
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    rodbender wrote:
    The one experience I had: Austin, Tx local cop stopped me for a tail light out.

    Cop: Is it OK if I search your vehicle?

    Me: No, sir, it is not.

    Cop: Why not?

    Me: Because I don't want you to.

    Cop: I could just call the canine unit and have the dogs walk around your vehicle.

    Me: Go ahead.

    Cop: Might take 'em a couple of hours to even get here.

    Me: I've got time, I'll wait. (I lowered the tailgate and sat down on it without asking)

    Cop: Goes back to his car, runs my license and tag probably. Comes back, hands me my license, and turnsand heads forhis car. Says not a word.

    Me: CanI go now?

    Cop: Never turning to look at me says, "Yeah, Get the F out of here"

    Me: Thank you, sir. Have a nice evening.

    I don't think he was too happy.
    I'd have reported him for the profanity. It's not just the cops who have the ability to retaliate.
    --- Gun control: The theory that 110lb. women have the "right" to fistfight with 210lb. rapists.

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    Regular Member rodbender's Avatar
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    I knew he was getting frustrated when I told him I would wait. It was just too humorous. I couldn't report him because of the entertainment value.
    The thing about common sense is....it ain't too common.
    Will Rogers

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    AZkopper wrote:
    People always have a right to say "no". They often do. Are you implying that we should set an even higher bar for LE? That LE cannot even ask for consent? That absent a warrant, even if a motorist pleaded with an officer to search his car, he couldn't?

    If they are using intimidation to get consent, than it's not really consent.

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    The "it might take all day for the drug dogs to get here" bit is crap, and they know it. They are allowed to detain you for a "reasonable" period of time in order to issue a citation, if a traffic stop. Even when they do show up with a canine unit, remind the police that the dogs don't have the right to enter the vehicle either. Make a point of rolling up your windows and locking your doors when stopped, if ordered to exit the vehicle.

    -ljp

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    AWDstylez wrote:
    Good article. Yay for police state America.

    He did forget one aspect of this whole thing though. "Probable cause" isn't hard to find. Your simple refusal to consent to the needless search is probable cause enough for 99% of officers in police state America. It goes something like this:

    Cop: "Do you mind if I search the vehicle."

    Citizen: "I'd rather you not."

    Cop: "Why? You have something to hide?"

    Citizen: "No, sir."

    Cop: "Step out of the vehicle please."
    Citizen gave wrong response....

    My reply is...."May I see the search warrent?", unless i'm in a very good mood, then its "Do you mind if I search your car also"

    The biggest problem now is the
    "Do you have any weapons?" question. The government considers
    nail clippers a waepon now, so what is the proper response?

    I was so looking forward to the "pot airfreshener", darn they didn't start selling it.

    When TN was trying to make posession of lottery tickets a crime, I was going to hang
    a used one from my rearview mirror. I was going to buy a used ticket so there could be no chance of it being considered a gambling device.


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    The proper response to "do you have any weapons?" is "I respectfully decline to answerany questions."

    -ljp

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    AWDstylez wrote:
    SNIP Cop: "Do you mind if I search the vehicle?"

    Citizen: "I'd rather you not."

    Cop: "Why? You have something to hide?"

    Citizen: "So, that would mean that if I consent to a search thenthere's nothing to hide and no reason for you to search."




    This pretty much ought to put that stupid question to bed.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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