Conscent to search

[Sangiovese]

my reply was off topic. deleted.

[Renegade]

DELETED

[stroo]

One point that hasn't been made here is that while the overwhelming majority of LEOs are honest, there are bad apples who have planted evidence during searches. If I am pulled over by an LEO, I don't know if I am dealing with an honest LEO or a bad apple. Making an assumption on that probably won't hurt, but if you do have a bad apple, your assumption could come back to bite you.

[Sangiovese]

I also thought of the "crooked cop planting evidence" angle, but I think that if a crooked LEO is going to plant evidence, he's going to be able to do it even if you don't consent to a vehicle search.

He could just as easily say that he is going to pat you down for his safety, palm something, and then "find" it in your pocket.

Thankfully, most of our LEOs are honest people trying to do the right thing.

[Mithras61]

I might have nothing to hide, but if he has to ask then he has no probable cause to search either. I voted no.

If the officer has probable cause, he does not have to have your conscent to search your property?

What is the purpose of my right to give or denie conscent if he can search for what ever they can think of on the spot. Your vehicle matches the description of a possible suspect in the area in another crime. You no way to determine if that is true.

Should you ask him what he is looking for?

No, if he needs my consent to search, he has no probable cause. My right to be unmolested in my person and possesions is the foundation for my refusal. They can violate that without my consent, or they can search anyway if they have probable cause.

He may (as was pointed out by CHL/LEO) ask anyway, but they will not have my consent. I will not move to stop the search (I'm not going to get into a fight or anything with a LEO - the side of the road is NOT the place to sort that stuff out), but I will refuse to give consent.

As far as the right to deny consent goes, its really simple. If they find anything and cannot provide prior probable cause, anything they find is inadmissable in court. If I grant consent, anything they find IS admissable, regardless of whether or not they had probable cause.

"Probable cause" is not "whatever they can think of on the spot" but rather a standard to which they must adhere. It is my understanding that they have to have reasons that they can clearly state to the court (I felt it was probably a good bet that there was something in the car won't do). The definition I found says "probable cause" is this:

a combination of facts and circumstances which would warrant a person of reasonable caution and prudence to believe that a crime has been or is being committed and that the person to be arrested is guilty of such crime.

There is a fairly full discussion at Wikipedia

[familyman]

if a cop ever has to ask you for your consent to search, he's already pre-determined that no exceptions to the Fourth Amendment's warrant requirement will allow for a lawful warrantless search.

Not always true - quite often I will ask someone if it's OK to search their vehicle even though I've already made the decision to legally search it. I want to see what their reaction is and how they respond. Watching their response can sometimes save us lots of time.

Please explain. How does it save time?

If the "suspect" which is what he is at this time confesses that it's in the trunk, your going to search the rest of the car anyway, right?

[ShootingStar]

Sangiovese,

I am not dogmatic on many things, but on my Constitutional Rights I am. Period.

Maybe I'm in the minority here, but I would be inclined to give consent.

Here are a couple reasons:

1. I have nothing to hide.
*Neither do I, but we're almost to the point that if you refuse, you're made to feel like you do have something to hide. This proves what someone said earlier, "if you don't exercise your rights, you'll loose them".

2. I have tremendous respect for the cops that risk their lives on the street.
*I do as well. I have a close relative and several friends that are LEOs, but I don't exist to make their job easier at the expense of my rights. They work for all of us and allowing the police that much power will result in a police state. At that point, you either live with the fact that you have no rights anymore, or you shed blood to get them back. Why not stop it before it gets to the point where you can't.

3. I have a natural inclination to comply with LEO requests when they are made, unless compliance would put me in danger. (If I have a real problem with the way something was handled, it can be sorted out later with the department - not in the heat of the moment.)
*Yes, I am more than happy to assist them out of respect, however, it has to be tempered with my rights coming First. No exceptions. Probable cause exists for good reason.

I understand the idea of exercising your rights and refusing on the principle of the thing. but I also believe that just because you have the right to do something, it isn't always the right thing to do.
*I agree with this to a point. However, there IS a reason to refuse consent to search. The rights you'll loose as a result. We're almost there now.

I would rather let him search and satisfy whatever "gut feeling" he may have had, and be done with the stop in 10 minutes and have him back out looking for bad guys, than refuse consent and keep him and other officers tied up for an hour if he presses the issue.

*I also would like him back out on the street asap, but not at the cost of the freedom people have fought and died for. Ask yourself what the founding fathers would say about this. Also, if he decides to go on a fishing expedition and wastes valuable time, then the guilt is on him for doing it. Not you. If he had probable cause, I would be glad to help him finish as soon as possible. But if he had probable cause, then he wouldn't need my consent. Problem solved.

Your heart is in the right place, but in this case, you can't afford to be wrong. The loss of an important Constitutional right is a travesty.

Keep in mind that in Chap 9 of the penal code it prohibits anyone from resisting an illegal arrest or search so it should be assumed that if the officer insists on a search that you would not resist. I don't have a problem with this since you're not violating someone's rights by arresting or searching when you have good reason to. Obviously every bad guy would resist and our police wouldn't be able to do their job. I think they have the authority they need to do their job already. If they see or smell something illegal, then by all means search.
-ss

[zigzag]

I would politely say, no.

[iflyabeech]

Oh boy. Its not giving up your rights if you allow them to search you. Its not illegal or a violation of your rights if a cop asks to search you or me.

[smyrna]

Not entirely true. Let's say I search your car (you have care, custody, and control of it) and you have a passenger sitting in the right front seat. While searching your car I find illegal drugs underneath the right front seat. Unless you own up and state that they are your drugs, I could charge the passenger with them depending on the totality of the circumstances.

Sure, I can see that. But I also notice you said that you could charge the passenger which means, I guess you could charge me as well? Am I right?

Supposing I don't have a passenger, am I not still responsible for aunt Myrtle's hydrocodone? Or, better yet...I bought a used car, that at one time had some dopers in it. You pull me over and I'm all by myself, the burden of proof for anything illegal in that car whether it is mine or not shifts to me, does it not?

[7GenTex]

"Well Officer, it sure don't look like a fishing boat to me!"

[KBCraig]

A few weeks ago I was pulled over on a *bicycle* for running a stop sign. After being really hassled by the 3 officers who were all standing around me, I consented to a search just so they would back off and let me go - I had the same "I have nothing to hide attitude". I will never, ever do that again. It was probably one of the most humiliating incidents of my life - you absolute look/feel like you are going to jail. Moral of the story - whether it's your person or your car, do NOT give consent to search - you will regret it.

Don't forget, you can revoke that consent at any time, and set whatever limits on it that you want.

If you give consent and then change your mind, speak up loudly: "Officer, I changed my mind. I do not give you consent to search."

You can also tell them that you're willing to be patted down, but they can't search your car. Or that they can look where you were sitting, but not in the trunk. Or console, for that matter.

[lrb111]

Or, better yet...I bought a used car, that at one time had some dopers in it. You pull me over and I'm all by myself, the burden of proof for anything illegal in that car whether it is mine or not shifts to me, does it not?

There are a lot of used cars out there. Some of us even refuse to buy "new".
I know who owned one of our cars previously, and I would not consent, based solely on that. Probably wouldn't find anything, but might keep a K-9 active for hours on smells. dunno..

[srothstein]

if a cop ever has to ask you for your consent to search, he's already pre-determined that no exceptions to the Fourth Amendment's warrant requirement will allow for a lawful warrantless search.

Not always true - quite often I will ask someone if it's OK to search their vehicle even though I've already made the decision to legally search it. I want to see what their reaction is and how they respond. Watching their response can sometimes save us lots of time.

Please explain. How does it save time?

I will almost always ask for consent before I search, no matter how much probable cause and exigent circumstances I have. It saves time in two ways.

The first is at the scene. If I get consent, i won't have to spend time arguing with the suspect or possibly fighting with him. I will not even have to explain to him what I am doing.

The second place it saves time is in court. If I have consent, then my probable cause does not come into play and the search is legal. If I searched on PC without consent, there will probably be extra hearings and motions on whether or not my PC was valid. I could even lose the evidence if I was wrong about the PC, and every judge will have their own personal internal rules on what constitutes PC.

[wrt45]

This subject comes up here every once in awhile but I don't recall anyone on this forum who ever had the occasion to refuse consent during a traffic stop.

If there is someone who refused I am interested how the LEO reacted.

I refused after a Highway Patrol officer out of Lubbock wanted to search my car. He had stopped me, saying my license plate light was out. It wasn't, but he wrote me a ticket for it after I refused his search request.

After receiving the ticket, I suggested to the officer that he get the name of a man who was standing there locking up the business where I pulled in to stop for the officer. I said, very respectfully, we'll need his name so he can testify to the fact that the lights are working just fine. The officer shrugged it off, but took no action, other than the ticket he had already written.

In the end, the judge dismissed the ticket without any hassles.