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Thread: Refusal to consent cannot be a factor in reasonable suspicion

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    Regular Member Repeater's Avatar
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    Refusal to consent cannot be a factor in reasonable suspicion

    This is an important lesson on how cops encourage or coerce citizens into giving consent for almost anything -- and why gun owners should never give consent. Frustrated cops might retaliate however, as in this case:

    Refusal to consent cannot be a factor in reasonable suspicion

    Refusal to consent here was considered by the officer a factor in reasonable suspicion, and this makes it unreasonable because the other factors failed, too. United States v. Jackson, 2010 U.S. Dist. LEXIS 110898 (W.D. Tex. October 13, 2010):

    Refusal to consent to a search does not provide reasonable suspicion to justify a stop or continued detention. United States v. Machuca-Barrera, 261 F.3d 425, 435 n.32 (5th Cir. 2001) (citing United States v. Hunnicutt, 135 F.3d 1345, 1350-51 (10th Cir. 1998) (ď[I]t would make a mockery of the reasonable suspicion and probable cause requirements ... if citizensí insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.Ē)); see also Karnes v. Skrutski, 62 F.3d 485, 495 (3d Cir. 1995) (holding that refusal to consent to search ďcannot support a finding of reasonable suspicionĒ); United States v. Gordon, 917 F. Supp. 485 (W.D. Tex. 1996) (holding officers lacked reasonable suspicion to continue to detain the defendantís vehicle following the defendantís refusal to consent to search his vehicle and that the defendantís refusal to consent to a search of his vehicle could not be turned, by the officers, into a basis for the necessary level of reasonable articulable suspicion).

    Furthermore, at one point Trooper Allick told Defendant that he respected Defendantís Fourth Amendment rights. Video at 16:50. However, one cannot respect anotherís Fourth Amendment rights and simultaneously punish that same person for exercising them. Had the other reasons Trooper Allick claimed after the fact been the true basis for any suspicion he may have had, he would have cited those reasons when explaining the situation during the stop on April 14, 2010. Instead, he referred only to Defendantís exercise of his Fourth Amendment right to refuse consent, and he did so on six different occasions. Accordingly, this Court finds those later-mentioned reasons suspect.

    . . .

    In light of the totality of the circumstances and the evidence before it, the Court holds that Trooper Allick lacked an articulable factual basis to suspect wrongdoing. His continued detention of Defendant therefore violated Defendantís Fourth Amendment rights.
    Remember: you ALWAYS have a right to refuse consent; don't let any cop convert that into R.A.S.

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    Quote Originally Posted by Repeater View Post
    This is an important lesson on how cops encourage or coerce citizens into giving consent for almost anything -- and why gun owners should never give consent. Frustrated cops might retaliate however, as in this case:

    Refusal to consent cannot be a factor in reasonable suspicion

    Refusal to consent here was considered by the officer a factor in reasonable suspicion, and this makes it unreasonable because the other factors failed, too. United States v. Jackson, 2010 U.S. Dist. LEXIS 110898 (W.D. Tex. October 13, 2010):

    Furthermore, at one point Trooper Allick told Defendant that he respected Defendantís Fourth Amendment rights. Video at 16:50. However, one cannot respect anotherís Fourth Amendment rights and simultaneously punish that same person for exercising them. Had the other reasons Trooper Allick claimed after the fact been the true basis for any suspicion he may have had, he would have cited those reasons when explaining the situation during the stop on April 14, 2010. Instead, he referred only to Defendantís exercise of his Fourth Amendment right to refuse consent, and he did so on six different occasions. Accordingly, this Court finds those later-mentioned reasons suspect.


    Remember: you ALWAYS have a right to refuse consent; don't let any cop convert that into R.A.S.
    WHOA!!!



    Do you guys realize we now have a federal court ruling establishing that an officer MUST articulate their reasonable suspicion of criminal involvement at the time of the stop, TO the person being stopped?

    This is big.

  3. #3
    Regular Member Repeater's Avatar
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    Quote Originally Posted by Phssthpok View Post
    WHOA!!!



    Do you guys realize we now have a federal court ruling establishing that an officer MUST articulate their reasonable suspicion of criminal involvement at the time of the stop, TO the person being stopped?

    This is big.
    AND... there is VIDEO.

    Which seems to explain why cops don't like being recorded. Ironically, the dash-cam was his own recording.

    Hah hah.

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    Quote Originally Posted by Phssthpok View Post
    Do you guys realize we now have a federal court ruling establishing that an officer MUST articulate their reasonable suspicion of criminal involvement at the time of the stop, TO the person being stopped?

    This is big.
    It could become big, but I don't think it's quite that big, not just yet.

    The court didn't rule that an officer must articulate his RS to the person being stopped. In this case, it looks like repeated statements that did not constitute RAS, combined with possibly valid RAS issues that were only raised after the fact, convinced the court that the officer did not have a valid RAS at the time of the stop.
    Last edited by KBCraig; 10-23-2010 at 08:02 PM.

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    Quote Originally Posted by KBCraig View Post
    It could become big, but I don't think it's quite that big, not just yet.

    The court didn't rule that an officer must articulate his RS to the person being stopped. In this case, it looks like repeated statements that did not constitute RAS, combined with possibly valid RAS issues that were only raised after the fact, convinced the court that the officer did not have a valid RAS at the time of the stop.
    I am with KBCraig on this.... and I like it!

    Let it be strengthened in the future to where the officer MUST verbalize the RAS for the search request AT THE TIME OF THE STOP!

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    Regular Member Bobarino's Avatar
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    Anyone know where the video can be seen? I searched but apparently my Google-Fu is weak today.

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    Regular Member Coded-Dude's Avatar
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    the video may have just been referenced/used in court(it's not on the internet yet). I have also been unable to locate it.
    If guns cause crime.....mine must be defective.

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    No offense, fellas, but I think the wishers about RAS are off-base.

    The court is addressing the credibility of the officer. Not his RAS. The only reason we are reading that language is as an explanation for rejecting the cop's claim about having RAS.

    Second, no court is ever going to require an LEO to state his RAS to the detainee during the detention. Not in a hundred years. It is directly counter to the whole idea that whether RAS existed is a matter for a court to decide as clearly given in Terry v Ohio (see the last paragraph where it talks about each case being judged on its own facts.)

    In VA we have Commonwealth vs Hill where the state appeals or supreme court clearly wrote that close questions about RAS were to be sorted out in court, not on the street.

    If you want something to hate or something to change, direct your ire at Terry for knocking a big hole in the 4th Amendment in the first place, or Congress and the state legislature for not providing easily obtainable penalties against LEOs for rights violations connected to Terry Stops.

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    Regular Member Bobarino's Avatar
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    I can't even find the actual court decision. The Goggle-Fu is REALLY weak today.

  10. #10
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    Was there coercion? Good cops or bad cops? You decide.

    From the court opinion:

    First, Defendantís custodial status was not voluntary. As demonstrated by Defendantís repeated inquiries into the reasoning underlying his continued detention, Defendant did not choose to remain on site. Rather, he, Nicole Jackson, and her boyfriend stood on the side of the road in the hot sun at Trooper Allickís request for approximately fifteen minutes until Deputy Johnson arrived. Video at 17:31 31:41. Given that Defendant wished to leave, this factor weighs against a finding of voluntariness.

    Next, Deputy Johnson engaged in questionable police procedures to obtain Defendantís consent. First, Defendant was forced to stand in the sun for approximately fifteen minutes while waiting for Deputy Johnson to arrive. Video at 17:31 31:00. Second, whereas most of the events of April 14, 2010 took place in front of the camera on Trooper Allickís patrol car, Deputy Johnson took Defendant behind Trooper Allickís patrol car, out of both video and audio range, while attempting to gain signed, written consent to search the vehicle. Id. Deputy Johnson admitted that he had problems with his video, Hearing Tr., 28:11 12, yet despite that knowledge he decided to take Defendant out of video and audio range instead of in front of the camera in Trooper Allickís patrol car, where most of the other events took place. This Court finds this act both deliberate and suspect, as Deputy Johnson appeared to evade the very monitoring and accountability video cameras are installed to provide.

    Furthermore, ďa consent is suspect if given by one who earlier refused to consent, unless some reason appears to explain the change in position.Ē Ö Defendant had previously refused consent, and the government, Trooper Allick, and Deputy Johnson offer no reason to explain the sudden change. Indeed, after saying, ďman, let me sign this,Ē Defendant can be heard continuing to question what was happening for at least five additional minutes. Video at 38:09 42:38.

    Defendant contends Deputy Johnson threatened to impound Defendantís vehicle should he again refuse consent to search. Hearing Tr., 28:25 29:2. Given the fact that Defendant was forced to stand in the sun for fifteen minutes, Deputy Johnsonís choice to attain consent out of both video and audio range knowing that his video unit had problems but that Trooper Allickís was functional, Defendantís continuing to question what was happening after supposedly consenting to the search, the lack of explanation for Defendantís electing to grant consent after initially refusing, and the questionable police procedures employed, this Court finds Defendantís consent to be involuntary.

    Further, consent, to be valid, must also be an independent act of free will. To determine ďwhether the consent was an independent act of free will, and, thus, broke the causal chain between the consent and the illegal detention, the Court must consider: 1) the temporal proximity of the illegal conduct and the consent; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the initial misconduct.Ē Jones, 234 F.3d at 243. In the instant case, the consent overlapped with the illegal conduct, namely the illegal prolonged detention, and there were no intervening acts to separate the consent from the prior illegality. See id. (finding a close temporal proximity existed because the illegal detention continued up to the time of the defendantís consent); Dortch, 199 F.3d at 202 (finding a close temporal proximity because the illegally prolonged detention continued until the officers sought the defendantís consent to search his person a third time). Considering the questionable nature of the consent discussed above, the consent cannot be considered an intervening circumstance sufficient to attentuate the taint from the prior Fourth Amendment violations. See United States v. Chavez-Villarreal, 3 F.3d 124, 128 (5th Cir.1993) (finding no intervening circumstance and no dissipation of taint from prior illegality even though the defendant was told he could refuse consent because refusal seemed pointless). Here too, Defendantís refusal seemed pointless, as his prior refusals to consent resulted in continued detention, coercive tactics, and repeated requests for consent until he finally relented, after approximately forty minutes of detention.

    Finally, the purpose and flagrancy of the initial misconduct is cause for concern. Trooper Allick and Deputy Johnsonís actions betray a fishing expedition that would not end until incriminating evidence was found. Therefore, the consent is involuntary and thus inadmissible.
    ============================

    Bad cops? What do you think?

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    Quote Originally Posted by Repeater View Post
    SNIP Bad cops? What do you think?
    Oh, no. Not bad cops, not at all. They were just using the loopholes as they understood them to obtain consent. Very routine. Very good cops. A cop need not have any respect for rights in order to be a good cop.

    We can use a local good-cop as an example to help us evaluate the cops in the opinion. Y'all remember some of the things good-cop LEO229/NovaCop10 wrote about ID requests vs demands, and the 5th Amendment only protecting you if you were doing something wrong? He repeatedly evaded the distinction between an ID request and a demand, stooping even to schoolyard taunts. On the subject of consent, he went to great lengths to confuse the issue, even giving the facts behind US vs Mendenhall incorrectly. I had to post case quotes to shine daylight on his misrepresentation that the 5A only protects you if you are doing something wrong. And, lets not forget the times he advocated against exercising rights during a police encounter.

    Why, any fool can see that the cops in the case above are only slightly ahead of LEO229/NovaCop10. Thus, if he is a good cop, then these cops are also good; maybe even better.

    A good cop doesn't really need to respect rights. He just needs to maintain plausibility for the suppression hearing. And, not forget that the video camera is running.

    [sarcasm off]
    Last edited by Citizen; 10-31-2010 at 07:09 PM.

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