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Guidelines for saying NO to police searches.

Discussion in 'Third Rail' started by High Priest, Jul 2, 2004.

  1. High Priest

    High Priest 12oz Elite Member

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    Guidelines for saying NO to police searches.

    Discussion started by High Priest - Jul 2, 2004

    This was taken from EROWID.COM, So all credit for writing etc. belongs to them. If anyone chooses to use this anywhere else please make sure they receive the recognition they deserve.



    INTRO

    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 they find in a search (including very small amounts of cannabis).
     
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  2. rubbish heap

    rubbish heap 12oz Senior Member

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    rubbish heap - Replied Jul 2, 2004

    This is all good info EXCEPT a bad cop will do whatever the fuck he wants whether or not it's legal for him to do so. If you see a cop coming towards you, ditch your shit when/if you get the chance by all means.
     
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  3. CrazyLazy

    CrazyLazy 12oz Senior Member

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    CrazyLazy - Replied Jul 2, 2004

    Sad, but true fact.
     
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  4. rinse

    rinse 12oz Member

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    rinse - Replied Jul 2, 2004

    nice topic.
    sometimes cops will offer to ignore your traffic violation with a "one time deal" to let you off if you agree to a search. this happened to me a couple weeks ago. it was a deal worth making. i spent an extra 20 minutes with the cop in exchange for getting out of a ticket and court costs. not too bad if you ask me.
     
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  5. crave

    crave 12oz Veteran Member

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    crave - Replied Jul 4, 2004

    good article. i've read it before, but the refresher was nice.

    knowledge is power.
     
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  6. porque

    porque 12oz Senior Member

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    porque - Replied Jul 4, 2004

    ...maybe so...but if you read more carefully you'd see that when this happens the courts throw it out...if you get arrested under false pretenses then you can usually argue your way out of it in court...
    ...on the other hand...if a shady cop wants to beat the shit out of me and leave me in an alley instead of arresting me, i'll take what i can get...it sucks, but so does jail...
     
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  7. porque

    porque 12oz Senior Member

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    porque - Replied Jul 4, 2004

    Monday, June 21, 2004 6:36 p.m. ET

    By James Vicini

    WASHINGTON (Reuters) - People stopped by the police must give their names, a divided U.S. Supreme Court said on Monday, ruling that it did not violate their constitutional right to privacy or to remain silent.
    By a 5-4 vote, the high court upheld a Nevada law that requires detained individuals to identify themselves when asked to do so by the police, based on reasonable suspicion of wrongdoing. Twenty other states have similar laws.

    The ruling was a victory for the U.S. Justice Department and state officials who said forced identification represented a "minimal" intrusion on privacy rights, helped solve crimes and contributed to police and public safety.

    The case involved Larry Hiibel, who was convicted of resisting an officer after refusing 11 times to give his name when Sheriff's Deputy Lee Dove questioned him on May 21, 2000, as he stood beside his parked truck in Humboldt County.

    Based on a report from a witness, Hiibel was suspected of hitting his daughter, who was inside the truck. Hiibel also was suspected of driving under the influence of alcohol, based on his eyes, mannerisms, speech and the smell of alcohol.

    Hiibel told Dove he would cooperate, but refused to give his name because he said he did not believe he had done anything wrong. He was arrested, found guilty of the misdemeanor offense of resisting an officer and fined $250.

    Hiibel appealed his conviction and argued that his constitutional rights protecting against unreasonable searches and seizures and against self-incrimination had been violated.

    But the Nevada Supreme Court upheld his conviction, ruled the law passed constitutional muster and said forced identification was a minimal intrusion outweighed by the government's interest in police safety.

    LIBERAL JUSTICES DISSENT

    The Supreme Court, in a ruling by Justice Anthony Kennedy, upheld that decision and said the officer's conduct did not violate Hiibel's constitutional rights.

    Kennedy said state stop-and-identify laws often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior during the course of investigatory stops.

    States with similar laws are Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Rhode Island, Utah, Vermont, and Wisconsin he said.

    Kennedy said the Nevada law only required that a suspect disclose his or her name. It does not require the suspect to produce a driver's license or any other document.

    Nevada State Public Defender Steven McGuire, one of the lawyers who represented Hiibel, expressed disappointment at the ruling.

    "A Nevada cowboy courageously fought for his right to be left alone, but lost. We believe the court's holding erodes the belief in the right to privacy cherished by so many Americans," he said.

    The court's liberal members, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, dissented.

    Stevens said that a person's identity could be incriminating. "A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases," he said.

    Stevens said such information "can be tremendously useful in a criminal prosecution."




    ...this is from the other thread but it's relevant to this so they ought to be together...pay attention to the states mentioned...if you aren't in these states then you don't have to comply...
     
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  8. hobo knife

    hobo knife 12oz Junior Member

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    hobo knife - Replied Jul 4, 2004

    see, the only problem with probable cause is it's so ambigous, to the point that it comes down to your word against the officer/s...and if you end up getting charged with something the court/judge is much more likely to side with the "officer" than with a "suspect". Keep in mind... if an officer makes a slightly unlawful arrest his job/reputation is on the line, so you'd better believe he'll bend the truth in his favor. Most cops really are out to stop crime and keep the community safe, and a lot of them have the mentality "Bending the rules a little is ok because I know this person is guilty of a crime"...bottom line, there are loopholes for a reason-- so the wealthy can get off the hook , and the poor wind up with a charge-- a good lawyer is well worth the money.
     
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  9. ¤¤FoRGE²¤¤

    ¤¤FoRGE²¤¤ 12oz Member

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    ¤¤FoRGE²¤¤ - Replied Jul 5, 2004

    "In most states, you are not required to identify yourself"

    in the WHATS YOUR NAME thread it says theres a law sayin you MUST identify yourself with a first and last name WHENEVER a cop wants it
     
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  10. porque

    porque 12oz Senior Member

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    porque - Replied Jul 5, 2004

    ^^...read the reply two posts above yours...
     
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  11. imported_b0b

    imported_b0b Guest

    imported_b0b - Replied Jul 6, 2004

    in my experience when you start telling police what they can and can't do they get pissed off and fuck you over.
     
  12. Leedsboozer

    Leedsboozer New Jack

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    Leedsboozer - Replied Jul 7, 2004

    yer i remember once when me n my mate were walkin to a mates house, we had jus got off the bus,we hadn't even hit the bus(that time) and these two random pigs stopped us,took down out details, n then one guy started to search me, so i asked him why he was searching me for no reason n he then went on some bullshit bout he could do what ever he wanted 2 do.while this was happenin my mate jus stood there,not gettin searched or anything.Pig found my pen but i made up some story bout being an art student n it not being mine,etc.
     
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  13. panic

    panic 12oz Member

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    panic - Replied Jul 10, 2004

    I wonder how much of this can be translated into canadian law.
    hmm.
    i once told an officer of the law he could not search my car because " i have nothing illegal, no drugs. So i would hate for you to waist your time and mine". he continued to press, but i just got pissed. i had to work in the morning and i was already late getting home.
     
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  14. WeStSiDe g

    WeStSiDe g New Jack

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    WeStSiDe g - Replied Jul 12, 2004

    cops where im from dont give a fuck my boy got banked by 6 cops and thrown for a window for talking with some old guy about graffitti....they searched him found nothing and blamed some tag nearby on him then he lost his temper cuz the cop said sum shit about how he looks like a gang member from the mission and lied and said he could arrest gangmembers without them actually commiting a crime...a crowd gathered and hella people were cursing out the cop so the racist old fatso called hella back up and shit and when the backup came they all ran up and my boy and juss started beating him screamin hes got a weapon and shit like that and they picked him up and threw him thru a store window and then dragged him bloody as fuck into the cop car and they drove away...then helal witnesses wrote out statements demanding them to be given to the judge in my boys defense and unfortunately they gave em to the cop which the cop then went to take and rip to shreds when most of the witnesses had left and thru them in the trash can all of this was done with my boys girlfreind right there crying the whole time........my boy eventually got charged with 2 counts of assault on a police officer resulting in injury 1 count of vandalism 1 count of possesion of marking tool and 1 count of resisting arrest.....however luckily i bailed him out and the judge thru out his case so it didnt turn out that bad but shows how fucking krupt cops are fuck pigs
     
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  15. ChiNo-27

    ChiNo-27 New Jack

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    ChiNo-27 - Replied Jul 27, 2004

    Good shit, very informative, keep it up people
     
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