Consenting to be Abused

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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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:

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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:

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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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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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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?

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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?"
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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...

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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.

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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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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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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.

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

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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.

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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.

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