Citizen
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imported post
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 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.