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Thread: If an LEO Bugs You For Consent, Or Questions Your Refusal, During an OC Encounter

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    I posted this in another thread, but upon reflection thought it might deserve its own thread.

    HOLY SMOKE!!!!

    Look what I stumbled upon while checking into the question posed by the OP in the other thread. It jumped me right out of my chair!! It speaks to something I have suspected for a while, and I'm sure others have suspected, too. The quote is from the dissent in Florida v Jimeno. Its the lastthree paragraphs on the page linked below. I'm not even going to bold-face anything. Just read, and hang onto your chair.

    He's talking about a consent to search a car versus consent to search a closed container inside the car. Whether the consenter toa car search knows he is also consenting to search closed containers inside the car.

    The majority also argues that the police should not be required to secure specific consent to search a closed container, because "[t]he community has a real interest in encouraging consent.'" Ante at 500 U. S. 252, quoting Schneckloth v. Bustamonte, 412 U. S. 218, 412 U. S. 243 (1973). I find this rationalization equally unsatisfactory. If anything, a rule that permits the police to construe a consent to search more broadly than it may have been intended would discourage individuals from consenting to searches of their cars. Apparently, the majority's real concern is that, if the police were required to ask for additional consent to search a closed container found during the consensual search of an automobile, an individual who did not mean to authorize such additional searching would have an opportunity to say no. In essence, then, the majority is claiming that "the community has a real interest" not in encouraging citizens to consent to investigatory efforts of their law enforcement agents, but rather in encouraging individuals to be duped by them. This is not the community that the Fourth Amendment contemplates.

    Almost 20 years ago, this Court held that an individual could validly "consent" to a search -- or, in other words, waive his right to be free from an otherwise unlawful search -- without being told that he had the right to withhold his consent. See Schneckloth v. Bustamonte, supra. In Schneckloth, as in this case, the Court cited the practical interests in efficacious law enforcement as the basis for not requiring the police to take meaningful steps to establish the basis of an individual's consent. I dissented in Schneckloth, and what I wrote in that case applies with equal force here.

    "I must conclude, with some reluctance, that, when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. Of course it would be 'practical' for the police to ignore the commands of the Fourth Amendment, if, by practicality, we mean that more criminals will be apprehended, even though the constitutional rights of innocent people go by the board. But such a practical advantage is achieved only at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior, a cost that a constitutional democracy cannot long absorb."

    412 U.S. at 412 U. S. 288.

    I dissent.

    http://supreme.justia.com/us/500/248/case.html



    Now, when a cop bugs you repeatedly for consent, or questions you about your refusal, you have a little more backround, articulated by Justices Marshall and Stevens. The same applies here on the forum to LE and non-LE opinions favoring "people should just know their rights and if they don't refuse, tough for them."

    Also, take note about the 20 yr old opinion about consent. I haven't read it yet, but I'm wondering what it might reveal.

    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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    Now I'm forced to ask, how did this turn out? Can an officer search a closed container without specific permission? And more importantly to me (because it's a more likely situation), what about other peoples property in another vehicle? For instance, I often have a backpack in a friends car. If he consents to a search, can I say leave the pack alone, or can it be searched just because it was in the vehicle?

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    FogRider wrote:
    Now I'm forced to ask, how did this turn out? Can an officer search a closed container without specific permission? And more importantly to me (because it's a more likely situation), what about other peoples property in another vehicle? For instance, I often have a backpack in a friends car. If he consents to a search, can I say leave the pack alone, or can it be searched just because it was in the vehicle?
    Unless you are near the car and can voice your objection to your backpack being searched.... it can be searched after the operator of the car gives consent.

    So your backpack could be included in that search.

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    CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
    In this case, we decide whether a criminal suspect's Fourth Amendment right to be free from unreasonable searches is violated when, after he gives a police officer permission to search his automobile, the officer opens a closed container found within the car that might reasonably hold the object of the search.

    We find that it is not.

    The Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to open a particular container within the automobile.

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    LEO 229 wrote:
    The Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to open a particular container within the automobile.


    Sounds like you better specify BEFORE he starts searching that he does not have permission to search whatever closed containers might be in the vehicle.

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    The Florida District Court of Appeal affirmed the trial court's decision to suppress the evidence of the cocaine. 550 So.2d 1176 (Fla. 3d DCA 1989).

    In doing so, the court established a per se rule that "consent to a general search for narcotics does not extend to sealed containers within the general area agreed to by the defendant.'" Ibid. (citation omitted).

    The Florida Supreme Court affirmed, relying upon its decision in State v. Wells, 539 So.2d 464 (1989) aff'd on other grounds, 495 U. S. 495 U.S. 1 (1990). 564 So.2d 1083 (1990).

    We granted certiorari to determine whether consent to search a vehicle may extend to closed containers found inside the vehicle. 498 U.S. 997 (1990), and we now reverse the judgment of the Supreme Court of Florida.
    The touchstone of the Fourth Amendment is reasonableness. Katz v. United States, 389 U. S. 347, 389 U. S. 360 (1967). The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. Illinois v. Rodriguez, 497 U. S. 177 (1990). Thus, [b]we have long approved consensual searches because it412 U. S. 218, 412 U. S. 219 (1973).

    The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect? Illinois v. Rodriguez, supra, at 497 U. S. 183-189; Florida v. Royer, 460 U. S. 491, 460 U. S. 501-502 (1983) (opinion of WHITE, J.); id. at 460 U. S. 514 (BLACKMUN, J., dissenting).

    The question before us, then, is whether it is reasonable for an officer to consider a suspect's general consent to a search of his car to include consent to examine a paper bag lying on the floor of the car.

    We think that it is.

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    FogRider wrote:
    SNIP Now I'm forced to ask, how did this turn out?


    Too tough to click on the link I provided? (Smart aleck-y question). :P
    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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    AWDstylez wrote:
    LEO 229 wrote:
    The Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to open a particular container within the automobile.
    Sounds like you better specify BEFORE he starts searching that he does not have permission to search whatever closed containers might be in the vehicle.
    This is how it has been for years. One judge says yes, another says no, the next says Yes.

    The decision of the judge falls on their interpretation of the law. Each can have their own opinion.

    If you tell me to make myself at home I am not going to ask it I can open your frig!

    I will be sure to phrase my consent search to include closed containers. That way I am covered and will not have to hold up a paper bag full of crack and make him think twice and withdrawing consent.

    Thanks Citizen!!



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    Citizen wrote:
    FogRider wrote:
    SNIP¬* Now I'm forced to ask, how did this turn out?


    Too tough to click on the link I provided?¬* (Smart aleck-y question).¬* :P
    From my iPhone, yeah.

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    Lessons learned: If the cop asks if he can search your junk remember Nancy Reagan and justsay no.

    Allthe miscelaneous deities must chuckle knowing that most crooks are either too dumb to say no or are dumb enough to leave incriminating junk in plain sight.

    Hey Leo, good job laying out the majority opinion and other relevant cases.

    <fairness doctrine engaged>

    Hey Citizen, good job bringingan interestingdissenting opinion into the light.

    Them Supremes sure are a hoot.

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    Yeah, I agree. Make this a real easy, short conversation: I don't consent to any searches. Am I free to go?

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    grumpycoconut wrote:
    Lessons learned: If the cop asks if he can search your junk remember Nancy Reagan and justsay no.

    Allthe miscelaneous deities must chuckle knowing that most crooks are either too dumb to say no or are dumb enough to leave incriminating junk in plain sight.

    Hey Leo, good job laying out the majority opinion and other relevant cases.

    <fairness doctrine engaged>

    Hey Citizen, good job bringingan interestingdissenting opinion into the light.

    Them Supremes sure are a hoot.
    I just try to keep things balanced. They can really get one sided here when relevant information is discarded or clipped.

    This case is all about a drug dealer. Not an honest armed citizen.

    The cop was asking a drug dealer if he could search the car. Honestly, what drugs do you expect to find on the floor or seat or dash that are not in some kind of container.

    So now we have someone rooting for the drug dealer siding that the illegal drugs the driver has placed into a paper bag should be protected from a search and excluded from the vehicle search. Concluding that there could have been important "papers" that were protected from the government's prying eyes.

    While I understand the intent behind it, protecting a search of your papers and what not.... from unreasonable search. But this is a consent search!!

    If you are giving consent to search a vehicle it would be assumed everything inside would be part of that search. Would you need permission to open a glove box or center console too? Both could contain "papers".

    What this does is convert a consent search down to a modified plain view search. Simply allowing you to be inside the car and move items aside but not open them up.

    Paper bags are not designed to protect documents from being seen. Bags in general are used for storage and transportation.

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    I find nothing about the decision to be shocking or surprising. I would assume that a consent to search the vehicle would mean a consent to search inside anything in the vehicle. It would never occur to me that if I gave consent to search my vehicle that the LEO couldn't look in my glove compartment, center console, briefcase, laptop case, rear storage compartments, spare tire well, etc or that I could give a limited search permission along the lines of "You can look everywhere except in ____". It just seemed common sense to me that consent to search is consent to search.
    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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    This is why you simply don't consent to searches.

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    deepdiver wrote:
    I find nothing about the decision to be shocking or surprising. I would assume that a consent to search the vehicle would mean a consent to search inside anything in the vehicle. It would never occur to me that if I gave consent to search my vehicle that the LEO couldn't look in my glove compartment, center console, briefcase, laptop case, rear storage compartments, spare tire well, etc or that I could give a limited search permission along the lines of "You can look everywhere except in ____". It just seemed common sense to me that consent to search is consent to search.
    When has common sense ever been part of the law?

    Step 1: A law is passed

    Step 2: LEO interprets the law and makes an arrest

    Step 3: Defendant declares that LEO interpretation is incorrect and some word in the law makes him innocent.

    Step 4: Jury decides that defendant is wrong with interpretation and is guilty.

    Step 5: Appeals court rules in favor of defendant.

    Step 6: Higher Appeals court says defendant is guilty

    Step 7: State Supreme court says innocent

    Step 8. US Supreme court says he is guilty.

    I left out about 50 steps for simplicity but none of them actually use common sense. If they did 90% of all lawyers would be out of work.

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    AWDstylez wrote:
    LEO 229 wrote:
    The Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to open a particular container within the automobile.


    Sounds like you better specify BEFORE he starts searching that he does not have permission to search whatever closed containers might be in the vehicle.
    Or, better yet, memorize and live by these 7 words: "I do not consent to any searches."

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    Slayer of Paper wrote:
    AWDstylez wrote:
    LEO 229 wrote:
    The Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to open a particular container within the automobile.


    Sounds like you better specify BEFORE he starts searching that he does not have permission to search whatever closed containers might be in the vehicle.
    Or, better yet, memorize and live by these 7 words: "I do not consent to any searches."

    Yea, that would be the logical thing to do, but apparently we're skipping that step in this thread...


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    grumpycoconut wrote:
    SNIP Hey Leo, good job laying out the majority opinion and other relevant cases.
    Its the top half of the page I linked. The "other relevant cases" were cited within the majority opinion.

    You would be thanking him for no effort thatall threadreaders could not have done for themselves, and should--that's one of the reasons forproviding alink.
    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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    deepdiver wrote:
    SNIP I find nothing about the decision to be shocking or surprising.
    The actual event is just the facts to which the principles are being applied. Watch the principles for a moment; look past the facts. Look to that first sentence:

    The majority also argues that the police should not be required to secure specific consent to search a closed container, because "[t]he community has a real interest in encouraging consent.'" Ante at 500 U. S. 252, quoting Schneckloth v. Bustamonte, 412 U. S. 218, 412 U. S. 243 (1973). (red emphasis added)

    Without mentioning the superior community interest in rights. And, in effect, seeming to say, by omission,that consent is more important than the 4th Amendment itself.

    If it were not for the 4th Amendment, consent wouldnever be an issue. There would be no reason to encourage consent if there were no 4th Amendment protecting against searches and seizures in the first place.

    And then there is Justice Marshall's analysis.

    At least until I read the cited cases.

    But I guess I'm just too far up in the clouds foryou Philistines. I notice nobody seemed toeven notice. Certainly nobody went for the earlier decision to see what was going on. Or, if they did, they didn't postabout it. :P
    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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    OK, I've read most of Marshall's dissent in Schneckloth v Bustamonte.

    Wow. I recommend everyone read it. Since its the dissent, it comes last. Its way down at the bottom, about the last sixth. Notice that Douglas and Brennan also dissented. Theirs comes just before Marshall's.
    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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    I admit that I didn't have much time when I read it and certainly did not have time to read further on the matter beyond this thread. You bring up good points as usual, Citizen. I will revisit the matter when I have more time and reconsider my comments.
    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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    Every rights/freedom activist's line in the sand should always be, "I do not consent to a search".

    But just for grins, and to put things in perspective for the courts (should it come to that), I suggest that the first response to "You don't mind if I search your car, do you?", be along the lines of "Why in the world would you want to search li'l ol' me? What do you think you might I might have?"

    That forces the officer to articulate what he's searching for; with that statement, he limits where he can search. If he's searching for guns (for his own safety, of course), the ashtray (and the roach within) is off limits. As would be the folded paper bag of cocaine in Florida v. Jimeno; there are no guns that can be concealed in a gum wrapper.

    Courts have long held that the authority to search is limited to the place and time where the person or thing to be seized might reasonably be found. A warrant for a stolen elephant doesn't authorize police to look in your medicine cabinet; a search for an escaped convict doesn't permit them to look in your glove compartment; a Terry pat-down for officer safety doesn't give the officer leave to dig through your pockets.

    "I don't know what you might hope to find, Officer. What are you looking for?" is a good question. "Contraband" or "drugs" or "weapons" or "you never know what we might find" are all legally unacceptable answers. They show a lack of specific articulable suspicion about the likelihood of crime being "afoot", and instead illustrate that it's just a fishing expedition.


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    We have much evidence that a cop is not bound to respond to a mere citizen truthfully or at all. Make statements that you can live with rather than base actions on untruths.

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    KBCraig wrote:
    Every rights/freedom activist's line in the sand should always be, "I do not consent to a search".

    But just for grins, and to put things in perspective for the courts (should it come to that), I suggest that the first response to "You don't mind if I search your car, do you?", be along the lines of "Why in the world would you want to search li'l ol' me? What do you think you might I might have?"

    That forces the officer to articulate what he's searching for; with that statement, he limits where he can search. If he's searching for guns (for his own safety, of course), the ashtray (and the roach within) is off limits. As would be the folded paper bag of cocaine in Florida v. Jimeno; there are no guns that can be concealed in a gum wrapper.

    Courts have long held that the authority to search is limited to the place and time where the person or thing to be seized might reasonably be found. A warrant for a stolen elephant doesn't authorize police to look in your medicine cabinet; a search for an escaped convict doesn't permit them to look in your glove compartment; a Terry pat-down for officer safety doesn't give the officer leave to dig through your pockets.

    "I don't know what you might hope to find, Officer. What are you looking for?" is a good question. "Contraband" or "drugs" or "weapons" or "you never know what we might find" are all legally unacceptable answers. They show a lack of specific articulable suspicion about the likelihood of crime being "afoot", and instead illustrate that it's just a fishing expedition.


    Excellent point. And after he did articulate what he wanted to look for (if he even could), I'd still say no.

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    Doug Huffman wrote:
    We have much evidence that a cop is not bound to respond to a mere citizen truthfully or at all. Make statements that you can live with rather than base actions on untruths.
    That's what the voice recorder is for... well the 2nd one that you turned on at the beginning of the traffic stop just in case the first one is taken / seized.

    Helps keep honest people honest and trips up the dishonest ones.

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