how to just say no to police searches

This info is from Erowid on-line. Excellent stuff.

One of the main powers that law enforcement officers carry is the power
to intimidate citizens into voluntarily giving up their rights. Police
are trained to believe in their authority and trained to perform their
interactions with private citizens with confidence. It is their job to
deal with problems and they learn to manage uncomfortable situations
through strength. Most people, when confronted by police get a mild
panic reaction, become anxious, and try to do whatever they can to
minimize the time spent with the officer. Because of the imbalance of
power between citizen and officer, when a law enforcement officer makes
a strongly worded request, most people consent without realizing that
they are giving up constitutional protections against improper meddling
by the State in the private affairs of citizens.

A common situation is that of the traffic stop. A person is pulled over
for a real or perceived vehicle violation and, after checking the
driver’s license and registration, the officer asks the driver if they
have any weapons or illegal drugs in their car. When the citizen
answers "no", the police officer asks (in the strongest language he can
without demanding) to check that for himself. "Then you wouldn’t mind
if I took a look in your trunk." or "Why don’t you step out of your
car." Most people acquiesce to the ‘requests’ because they don’t
realize they have the right to say no.

WHY YOU HAVE TO SAY "NO" CLEARLY

The Federal Supreme Court has ruled that as long as the police do not force
an individual to do something, the individual is acting voluntarily,
even if a normal person would feel very intimidated and would not
reasonably feel they could say no. (see Florida v. Bostick, 1991) If you do what a policeman tells you to do before you are arrested, you are ‘voluntarily’ complying with their ‘requests’.

Unfortunately police will often try to push citizens to accept a search, to the point of ignoring when you say "no".
Its important to say very clearly "I do not consent to a warrantless search."  Or "This is a private event/home/place, you may
not enter without a warrant."  Don’t simply answer questions about searches with a simple "yes" or "no". See
this case where drug police asked a
confusing question and claimed they misunderstand the answer "yes" to mean they could search
(October 24, 2000.
Gregg County CODE officers, defendant Dockens, judge Steger, federal court, east district Texas).

Until you say "No, I don’t think I’d like to do that." you are
cooperating as a peer with the law enforcement officer who is trying to
make the world safer. When you say "no" to a request by a police
officer, you are asserting your lawful rights as a private citizen. If
the officer demands you comply, then in most cases you have little
choice. Usually, however, the officer is likely to try to convince you
to comply voluntarily. Until and unless you say "no" and stick to it,
the police don’t even need any real authority to tell you what to do.

WHAT A POLICEMAN CAN MAKE YOU DO

What a Law Enforcement Officer (LEO) can demand of a citizen depends
heavily on the context of the order. Most generally, police are allowed
by the courts to act as any reasonable private citizen would. They may
ask questions, look through windows that they happen to be near, walk
or drive in public areas, etc. Without a warrant or any suspicion of
illegal activity, they are allowed to interact with other citizens, but
they have a limited amount of authority to demand compliance, search,
or detain people or things.

In highly volatile or dangerous situations, a LEO’s authority to
require compliance is much higher than in non-threatening contexts. The
Supreme Court has ruled (with Terry v. Ohio
being one of the primary cases) that the police are allowed to protect
themselves from potentially dangerous people or situations. Under the
umbrella of "concern for safety" or "search for weapons" the police
have wide lattitude to do what they want and to order citizens to
comply with their demands.

The Terry v. Ohio case created the "weapons search", "terry search", or
"terry pat" exception to the 4th Amendment ‘probable cause requirement’
for searches. The court ruled that if a police officer "[has] reasonable cause
to believe that [someone] might be armed" they can require they submit
to a quick patdown. What this has meant is that it is now standard
practice to pat down anyone that a LEO wants to, without the need for
arrest, probable cause, or even suspicion of a crime.

Many police use weapons pats as a way to intimidate and harass
citizens, since it is a power the courts have allowed them to use with
little justification. Often a LEO will find something during their
patdown which is clearly not a weapon which they would like to see, but
this is beyond their Court-approved authority ( see below ).

Also under the ‘concern for safety’ umbrella, police are given wide
latitude by courts to ask individuals to comply with simple
non-intrusive commands such as "stand over there" or "wait here for a
moment", but the line between order and request becomes very fuzzy when
an officer starts telling people where to go unless the situation is
volatile / dangerous. There are many stories of two (or more)
individuals confronted by police ( one example )
whom the police intentionally separate to try to intimidate or to
compare stories. This is generally a ‘fishing’ maneuver which would not
fall under the ‘concern for safety’ umbrella. ( see below )

During a stop for a traffic violation, police have the power to demand
a proper driver’s license and other state-required documentation
(registration, insurance). In most [ed-all?] states they also have the
power to demand sobriety tests [ed – do they need reasonable suspicion
of intoxication ?]. The courts have also given police the power to
frisk a driver based on the Terry v. Ohio decision (the police should
have some reason to think there is danger) and some decisions have even
allowed an officer (with no suspicion or cause) to search the area
around the driver’s seat. [ed-citation for this?]

When a private, law abiding citizen encounters police, the amount of
intrusion a Law Enforcement Officer is allowed to demand is limited.
Some areas have laws against "disobeying a police officer" or
"obstructing an officer from their duties", but the bounds of what
officers can reasonably
require someone not suspected of any other criminal activity in a
peaceful situation have not been clearly
drawn by the courts. If someone interferes with a police officer
engaged in an arrest or investigation,
police tend to have very little patience and will quickly threaten or
affect detainment or arrest. Generally,
courts give police wide latitude in executing their duties and
disobeying a "reasonable" direct order from an officer
could be prosecuted in most jurisdictions.

As an encounter proceeds, the police gather data that they can use to
formulate ‘reasonable, articulable suspicion’ or (stronger) ‘probable
cause’ that the individual has contraband or is involved in a crime. As
the level of suspicion rises, so does the LEO’s authority to intrude
into a person’s affairs. Once the level rises to ‘probable cause’ to
believe that there is contraband in a vehicle, the Supreme Court has
made some very disturbing decisions allowing the police broad power to
search in certain cases, including the power to search closed
containers without a warrant. (see United States v. Ross, 456 U.S. 798 (1982) )

In a recent decision (Wyoming v. Houghton, April 1999),
the Supreme Court ruled that even passengers’ belongings, if left in
the car, may be searched thoroughly if the driver is suspected of a
crime.

In most states, you are not required to identify yourself or show the
police your ID (unless you are in a vehicle). We have been unable to
confirm that in Nevada that police try to
charge people with obstruction of justice for people who refuse to
identify themselves to police. However, if you choose to identify
yourself, you are required to tell the truth. It is a crime to lie to
federal police agents and it is a crime to give false identification to
police in many areas [ed- find a cite for this?].

The Supreme Court has said: "A brief stop of a suspicious individual,
in order to determine his identity or to maintain the status quo
momentarily while obtaining more information, may be most reasonable in
light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 146 (1972).

If you want to avoid long and unpleasant interactions with police, do
not give them any reasons to suspect you of criminal activity.
Courteously decline to participate in ‘fishing expiditions’ or any
other actions you do not wish to perform.

Police may search you ‘incident to arrest’: after or while arresting
someone, police are allowed to search the body of the person being
arrested. Recent decisions by the Supreme Court have also allowed the
police to do exhaustive searches of any vehicle the arrestee was in and
any containers therein. The Supreme Court held "that the police may
examine the contents of any open or closed container found within the
passenger compartment, ‘for if the passenger compartment is within the
reach of the arrestee, so will containers in it be within his reach.’" 453 U.S., at 460 (footnote omitted). See also Michigan v. Summers, 452 U.S. 692, 702 (1981).

In Pennsylvania v. Mimms, 434 U.S. 106 (1977),
the Supreme Court "held that police Officers may order persons out of
[463 U.S. 1032, 1048] an automobile during a stop for a traffic
violation, and may frisk those persons for weapons if there is a
reasonable belief that they are armed and dangerous."

WHAT A POLICEMAN CAN NOT MAKE YOU DO

  • Police are not allowed to frisk for anything except weapons. If,
    during a weapons pat, an officer discovers something ‘suspicious’ you
    don’t have to show it to them.

    Although the police have been given  a lot of leeway to ‘check for weapons’, the Supreme Court has ruled (in the key decision Minnesota v Dickerson, 1993)
    that a weapons search may not be used as a pretext for a more general
    search. In Minnesota v Dickerson, a man was stopped coming out of a
    ‘notorious crack house’ and was patted down in a ‘Terry Stop’. The
    officer noticed something in the man’s pocket which he said ‘felt to be
    a lump of crack cocaine in cellophane’. He reached in the defendant’s
    pocket and found some crack-cocaine. The Supreme Court ruled that in
    order to determine whether the item was crack or not required a
    further, unwarranted search was necessary which was not acceptable by
    4th Amendment standards.

  • Police are not allowed to search everyone (see
    Ybarra v. Illinois, 444 U.S. 85 (1979).
    In Ybarra v. Illinois, a man was patted down in a bar where the police
    were arresting a bar owner for selling heroin. An officer identified "a
    cigarette pack with objects in it" in the man’s pocket during the pat
    down and decided to search Ybarra. The High Court ruled that the
    officer overstepped his authority by searching everyone in the bar,
    even though they had a warrant to arrest the bartender and search the
    bar for evidence of drug sales.

    A common situation where police attempt to search many individuals
    without probable cause is a raided party. Sometimes police tell people
    to ’empty your pockets’ or they pat everyone down as they are leaving
    or they target a few people based on appearance for a full blown
    search. Most raids on parties are done without a judge-issued warrant
    and are based on noise complaints, city ordainances about event sizes,
    etc. In these cases, most searches will be citizens ‘voluntarily’
    complying with requests except in the case of violence, extreme
    intoxication, or obvious criminal activity. Be polite and considerate
    of the difficult job the LEO’s have, but do not consent to any
    warrantless search and do not offer information to the police regarding
    any criminal activity they suspect you of.


HOW TO SAY NO

So, when a policeman says "Empty your pockets for me?" or "Why don’t
you step over here for a moment?" What does a reasonable, law abiding
citizen say if s/he doesn’t want to? Unfortunately there may be no
simple answer to this. Because of the nature of most police-citizen
interactions, tensions can be high and LEO’s may interpret any dissent
as hostility or ‘suspicious behaviour’.

  1. Stay Calm. Speak calmly and slowly and don’t be surprised if the officer becomes irritated, angry, or beligerent.  Move slowly.
  2. Ask Questions. One way to Say No is to ask questions in
    return: "Is that a request or an order?" "Am I under arrest?" "Am I
    free to go?" "Why do you want me to *whatever*?" "Am I a suspect in a
    crime?"
  3. Say No. Another way to Say No is to very clearly say no: "No,
    I would like to leave." "No, I do not consent to any warrantless
    searches." "You do not have my permission to search me / my car / my
    belongings."
  4. Defuse Tensions. Do everything you can to defuse the tensions
    and seem peaceful. If an LEO thinks you might be dangerous, the courts
    have ruled that they have a greater authority to force you to comply.
  5. Do not Resist.  Do not Argue with a Cop.  Do not Touch a cop.  Don’t Run.  Don’t complain or threaten an officer legally.
     
  6. Comply when Required.  Knowing when you are required to comply can be difficult (see What You Must Do and What You Don’t Have to Do )
    The moment an LEO pulls a gun, do what they say. If they make you do
    something through force, your Constitutional Rights are not as
    important as staying healthy and alive. You can challenge the arrest in
    court if your rights are violated.
  7. Give the Cop a Break. Remember that police have a very
    difficult job to do and most cops are doing their best to try to keep
    their communities safe. When it comes to dealing with unusual or
    strange individuals or confronting drug issues, officers (and many
    people in the world) make some bad snap judgements. But most cops think
    of themselves as the Good Guys, so try to let em know you’re on their
    side.
  8. Ask for a Lawyer. As soon as its clear you will be arrested,
    ask for a lawyer and then keep quiet. Police will try to get you to
    talk. Don’t.

CAN SAYING NO GET ME IN MORE TROUBLE?

The short answer to this is, of course, yes and no. A lot is dependent
on your rapport with the individual officer(s). Saying No to a police
officer should be done gently to avoid enraging them so you don’t get
beaten up. Saying No to a warrantless search may cause a police officer
to harass you further to try to get you to comply. Saying No, however,
is always the best idea when it gets to the point of arrest and prosecution.  It is never
in your interest to cooperate with the police in helping them collect
evidence against you. If you do say No and a policeman searches anyway,
evidence can sometimes be suppressed (thrown out). If you agree to a
search, you have no grounds to dispute the evidence.

It is common to have an officer ‘ask’ forcefully first and if the
suspect gives any indication of saying No, they threaten to arrest them
and take them to the station. They say things like "if you don’t open
your trunk/pocket/whatever for me, I can arrest you and we can open it
up down at the station". Often officers will imply that if the suspect
cooperates, the cop will go easier on them. While it is true that a
police officer controls whether you are arrested or not, very few
police officers will overlook anything illegal the
y find in a search

Leave a Reply

  • (will not be published)

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>