Consenting to be Abused

The problem with "voluntary" roadside searches

Steve Chapman | July 31, 2008

If I approach as you pull into a parking space and ask if you'd mind my rummaging through your car, the chances are at least 90 percent that you'd decline. But if a police officer stops you with the same request, the chances are higher than 90 percent that you'd agree. Something about that badge makes citizens eager to be helpful.

Or maybe not. In civics class and Fourth of July speeches, we are told that American democracy rests on the consent of the governed. But interactions with the police serve as a useful reminder that government rests less on voluntary cooperation than on fear and force. A nation is free to the extent it prevents the rulers from bullying and coercing the ruled. By that standard, American society still has a way to go.

The other day, the American Civil Liberties Union of Illinois issued a report on "consent searches" that sometimes accompany traffic stops. Relying on data provided by local and state law enforcement agencies, the report documented that black and Hispanic drivers are much more likely than whites to suffer such invasions—even though the cars of minorities are far less likely to yield contraband.

These treasure hunts are called "consent searches" because they require the motorist to give permission. They take place only when the police officer has no grounds for suspicion. If he has probable cause, he doesn't have to ask. Only when he's acting out of a vague hunch, racial prejudice, or simple malice does he need the driver's consent.

But the term is fantastical in these instances. Stopped on a lonesome stretch of highway, at the mercy of an armed man who has the power to arrest, very few citizens feel free to refuse. The Illinois State Police report that 94 percent of white motorists and 96 percent of minority ones "consent" to such searches.

Is that because they have nowhere else they'd rather be? Is it because they get a kick from watching a cop take apart their cars in an effort to put them behind bars? Or could it be because they suspect that refusing a cop is far too dangerous?

More than 40 years ago, the Supreme Court ruled that before interrogating a suspect in custody, police have to provide the now-familiar warning: You have the right to remain silent; you have the right to an attorney; anything you say may be used against you.

Said the court, "The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating and works to undermine the privilege against self-incrimination." Only a firm safeguard, in the form of the magic words, could "dispel the compulsion inherent" in these situations.

The same inherent compulsion exists in traffic stops, but the court declined to follow its own logic. So the Fourth Amendment ban on unreasonable searches is virtually meaningless on the roadside.

But the court's myopia is no reason a state can't abandon this obvious abuse on its own. As it happens, "consent" searches are a fool's errand. Fully 94 percent of the time, the Illinois State Police discover nothing illegal—meaning they inconvenience and humiliate 16 innocent people for every guilty one they turn up.

Nor is the Land of Lincoln unique. When the Texas legislature took up a bill limiting such searches, the Texas Municipal Police Association admitted that "the vast majority of the time, we found nothing."

Other states have found that effective law enforcement doesn't demand hassling citizens who have done nothing to justify suspicion. In 2002, New Jersey's state Supreme Court recognized the obvious: "These searches are not voluntary because people feel compelled to assent" and concluded that consent "that is the product of official intimidation or harassment is not consent at all."

It ruled that police may not search a car without "an articulable suspicion that the search will yield evidence of illegal activity." The following year, the Minnesota Supreme Court followed suit. Rhode Island banned them by statute in 2004.

As the ACLU argues, that is the only sensible solution. In Illinois, the burden of these searches falls disproportionately on racial minorities, but achieving perfect racial equity would not alter their oppressive nature.

In a nation founded on respect for the rights of every person, these searches give all priority to the power and convenience of the government, while mocking the liberties we are supposed to have. Why would we consent to that?

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loli|7.31.08 @ 8:32AM|#

This passage left me wondering-- if you don't consent, can that refusal generate probable cause where there wasn't any before? I probably don't want an answer to that.

Rhywun|7.31.08 @ 8:41AM|#

Doesn't the "pulling you over" part already mean they suspect something? Or is this supposed to mean they require consent to search even if they just pulled you over for a broken taillight or something? In other words, why can't they just use whatever they pulled you over for as an excuse to suspect you of "something else"?

juanita|7.31.08 @ 8:43AM|#

If you aren't guilty you have nothing to hide.

|7.31.08 @ 8:49AM|#

If you aren't guilty you have nothing to hide.

If that were true I wouldn't be wearing pants right now.

Lurker Jack|7.31.08 @ 9:00AM|#

On a related note, all cops are heroes even when they're wrong:

http://www.breitbart.tv/?p=141533

Elemenope|7.31.08 @ 9:05AM|#

This passage left me wondering-- if you don't consent, can that refusal generate probable cause where there wasn't any before? I probably don't want an answer to that.

No. The court has been reasonably clear that a refusal can never serve as grounds for cause.

hekk|7.31.08 @ 9:10AM|#

Every time, a simple "No officer, I'm sorry." in a polite tone has stopped a potential search when I've been pulled over.

In other words, why can't they just use whatever they pulled you over for as an excuse to suspect you of "something else"?

Because that would be illegal.

KipEsquire|7.31.08 @ 9:11AM|#

They take place only when the police officer has no grounds for suspicion. If he has probable cause, he doesn't have to ask. Only when he's acting out of a vague hunch, racial prejudice, or simple malice does he need the driver's consent.

The flowchart doesn't even have to be that complicated. A search predicated upon "probable cause" is still subject to attack, at both a preliminary hearing before the trial and upon appeal after conviction. A consent search cannot be challenged after the fact (except to insist that consent was in fact not voluntary).

Bottom line: The police will always -- always -- ask for consent in such circumstances, even if they believe they have p.c. to search anyway.

Meanwhile, the reasoning in the recent Supreme Court case Brendlin v. California is helpful: It is absurd to suggest that a lay person knows when she is or is not free to walk away from a police officer, and the police cannot simply insist that such a person ought to know that he is not "seized" for Fourth Amendment purposes. If a person reasonbly thinks he is "seized," then he is in fact seized, even if the law says he actually isn't.

The same reasoning ought to apply to consent: If a reasonable person thinks he is not free to refuse to consent, then he is in fact unable to consent.

Maybe one day the Court will agree. Alas, today is not that day.

|7.31.08 @ 9:17AM|#

I actually saw a white couple being searched on their way to the beach in Alabama last week. That would never happen on my stretch of interstate in SE LA. Despite farming our prisoners out to other parishes while we expand our jail, we continue to prowl the roads for drug couriers who had no intention of selling their wares here.

|7.31.08 @ 9:19AM|#

Once again, Steve Chapman fumbles. This is a very important subject. And a largely neglected one. But beyond raising it, Chapman contributes little of substance. So uh, thanks. I can't wait to read what Balko, Sullum, or even Weigel has to say about it.

Dang, I had hoped someone would tell Juanita to shut the fuck up. I've seen it before.

|7.31.08 @ 9:23AM|#

Despite farming our prisoners out to other parishes while we expand our jail, we continue to prowl the roads for drug couriers who had no intention of selling their wares here.

What do you mean "despite". All those activities are money makers for the state. That includes arresting the competition to the local drug trade.

Pre-Civil War Slaves|7.31.08 @ 9:39AM|#

"In a nation founded on respect for the rights of every person..."

Chapman, we beg to differ

Abdul|7.31.08 @ 10:00AM|#

I talked to a retired police detective who was working when the Miranda decision came down. At the time, he assumed that starting every conversation with "You have the right to remain silent. . . " would drastically reduce the number of cases he could close.

Turned out, it had virtually no effect because savvy suspects had long known they didn't have to talk, and naive suspects would talk regardless of the warning.

|7.31.08 @ 10:26AM|#

robc|7.31.08 @ 10:27AM|#

Doug,

If you want to see it done, do it yourself.

Rimfax|7.31.08 @ 10:34AM|#

Why innocent people should not talk to the police.

|7.31.08 @ 10:43AM|#

Warren, Our Parish's budget is perienially in a deficit because we're paying other parishes to house the Sherriff Department's trophys. And drug runners passing through are no competition to local drug dealers.

Sorry James. I didn't make myself clear. What I'm suggesting is that your local officials are getting kickbacks on the slave labor they're providing. And that one has to pay the "tax" to transport drugs through the region.

I could be wrong of course. But I bet the actions the local legislature and police departments don't make a lot more sense if you assume I'm right.

|7.31.08 @ 10:51AM|#

We could effectively stop this abuses of police power simply by reducing the number of cops in this country by perhaps 90%, a number more appropriate to actual police manpower requirements.

One thing one immediately notes in traveling to practically any other country in the world, be it in Europe, East Asia, or Latin America, is a startling absence of police presence. In the US, by comparison, the police presence is overwhelming, having all the appearance of an occupying army.

These guys just don't have enough legitimate police work to do.

|7.31.08 @ 10:53AM|#

The 5th Amendment is your friend.
Do not talk to the police.
Do not consent to be searched.
Cooperate only minimally

Don't Talk to the Police Part 1

Don't Talk to the Police Part 2

Colin|7.31.08 @ 11:20AM|#

Great link, Rimfax

Everyone should watch that.

Ashley|7.31.08 @ 11:24AM|#

On that note, this is from '92 or so by a friend of mine: The Donut Factory.

Rhywun|7.31.08 @ 11:37AM|#

One thing one immediately notes in traveling to practically any other country in the world, be it in Europe, East Asia, or Latin America, is a startling absence of police presence.

I presume that excludes China. That place is *swarming* with cops.

T|7.31.08 @ 12:00PM|#

One thing one immediately notes in traveling to practically any other country in the world, be it in Europe, East Asia, or Latin America, is a startling absence of police presence.

Has that changed or something? I saw more polezei in Germany back in '88 than I do in my little podunk suburb. I'm sure the ratio of cop to citizen is pretty high in my town, too. Plus, Officer Numbnuts isn't strolling around with a submachine gun like the German cops were.

Rhywun|7.31.08 @ 12:11PM|#

Plus, Officer Numbnuts isn't strolling around with a submachine gun

Yet.

Me, I work near Wall Street. The tourists love to get their picture taken next to the guys with the big guns.

Episiarch|7.31.08 @ 12:19PM|#

One thing one immediately notes in traveling to practically any other country in the world, be it in Europe, East Asia, or Latin America, is a startling absence of police presence.

When I was in Spain, there were not a ton of police, but in Barcelona there was a very obvious presence. In the small city I was staying in at one point, the police presence was much less.

What you don't see is cops on the highway. They use speed cameras there, but everyone knows where they are and slows down accordingly (except for where the highway runs through Barcelona, in which every inch is covered and no one speeds there).

Invisible Finger|7.31.08 @ 12:23PM|#

If you aren't guilty you have nothing to hide.

If you aren't guilty, you also have nothing to show.

|7.31.08 @ 12:32PM|#

Despite farming our prisoners out to other parishes while we expand our jail, we continue to prowl the roads for drug couriers who had no intention of selling their wares here.

Try to score some of that sweet, sweet, forfeiture.

|7.31.08 @ 1:08PM|#

The Illinois State Police report that 94 percent of white motorists and 96 percent of minority ones "consent" to such searches.

I'm not sure how the ACLU determined that this is particularly "disproportionate". Unless they're referring to the numbers of each race who are actually asked to be searched. 'Cause it seems like it's pretty even up, to me. Not to say that it's a good thing.

GG|7.31.08 @ 1:14PM|#

In his latest column, Steve Chapman looks at the problems with "voluntary" roadside searches.

And then there's the involuntary roadside searches by the Border Patrol's K9s at the checkpoint outside of Yuma, AZ:

Illegal Homeland Security Drug Checkpoints

Barr has a petition up:

STOP the Bill of Rights Blackout

|7.31.08 @ 2:49PM|#

Elemenope | July 31, 2008, 9:05am | #
This passage left me wondering-- if you don't consent, can that refusal generate probable cause where there wasn't any before? I probably don't want an answer to that.

No. The court has been reasonably clear that a refusal can never serve as grounds for cause. [Citation Needed]

Seriously, I'd like a case name. When I lived in FL, refusing a search was tantamount to suspicion which = probable cause. It was treated like refusing a breathalyzer test, as an admission of guilt.

|7.31.08 @ 3:49PM|#

I'm with Kwix. What I generally hear is that no judge in Florida will turn down a request for a search warrant even with the flimsiest "probable cause".

They'd sooner take the chance on the trial judge suppressing than to be seen as being "soft on crime".

That said. KipEsquire is absolutely right:

A consent search cannot be challenged after the fact (except to insist that consent was in fact not voluntary).

There have been cases where a cinsent search was suppressed because the defendant said he felt intimidated but they are rare.

Remember, rule number one is NEVER, EVER, UNDER ANY CIRCUMSTANCES, CONSENT TO A SEARCH.

Charles|7.31.08 @ 4:00PM|#

My own experience with traffic stops has been pretty good. For the most part, the officer in question was polite, courteous, and professional. The one exception occurred in a small town with an overbearing and corrupt police force. I've only ever been asked once to consent to search. I said 'no' and made a joke about carrying a bomb when the policeman asked if I was carrying anything illegal. Thankfully, he took it in the way intended. As for police presence in other countries, my trip to Panama was illuminating. First, there was a heavier police presence in the city than there would be in a similar city here in the US. Second, some gang-related violence while I was there lead to the special corp coming out. Imagine a policeman on every corner, sporting a machine gun. The one thing Chapman overlooks is the source of this abuse. It's called the War on Drugs. We wouldn't have to put up with this if so many officers weren't concerned with that 'drug bust' to make their night and/or carrier. And finally, I don't actually blame the average officer for this abuse. I blame the legislatures and higher-ups who pass the laws and make the policies that lead to it. The officer is just trying to do his job as best he can.

|7.31.08 @ 10:40PM|#

To Juanita, who stated:
If you aren't guilty you have nothing to hide.

I say:
If I'm not guilty, why do you want to know? I can't think of any good reasons. I used to think cops would never try to pin something on someone, but now I'm not so sure. I should be presumed to be an honorable person, not a thug (unless there is probable cause.)

To Kwix:
I've wondered if refusing a "consent" search wouldn't be taken as probable cause. People like Juanita would say yes...even though the reason for the stop would be a traffic infraction, not because they believe you are carrying something illegal. If you don't consent, the officer can also make sure that your license plate isn't crooked, or hubcaps are on securely, or use some other pretext to hassle you or give you a ticket. They shouldn't be able to even ask.

To john:
I never realized how many police are on the roads until I took a road trip to Canada in December. It was extremely rare to see one. Of course, Canada only has 10% of the US population, so that might be it, but it gave me pause...

Tritone|8.1.08 @ 3:42AM|#

"Every time, a simple "No officer, I'm sorry." in a polite tone has stopped a potential search when I've been pulled over."

When I did that, they made me wait for 45 minutes for a canine unit to arrive to sniff the car. The dog didn't smell anything, of course, but it wasted a lot of time.

Cactus|8.1.08 @ 5:34AM|#

The last time I refused a consent search I was threatened with arrest and rape in jail.

Called the bastards bluff fully expecting to be beaten and or shot along side of the road but luckily he backed down.

The next week I put recording equipment inside my car. Never again.

|8.1.08 @ 11:15AM|#

Cactus be careful about recording equipment in some states it can get you arrested.

|8.1.08 @ 1:26PM|#

Usually, in these precincts, "consent" is enough to allow any transaction, be it selling sexual service, trans-fats, candy, guns, a couple of your kidneys, your skin for immediate flaying-off.

I'm more with some of the left-anarchists here, the ones who believe that some of your rights are actually inalienable, that is cannot be transferred or surrendered, and that any agreement to do so is not an agreement.

Interesting, given that there is no right to freedom of speech or worship on private land....

bob|8.2.08 @ 9:20AM|#

we all need to push for the end to the war on drugs. support L.E.A.P. Law Enforcment Against Proabition.

Bryan Morton|8.2.08 @ 9:57AM|#

Part of this problem is explained in paragraph 2 - " ...we are told that American democracy rests on the consent of the governed." The US was supposed to be a constitutional republic, not a democracy. Under a constitutional republic the rule of law chains government's actions. Under a democracy, as is rightly pointed out by H.L. Mencken, Ben Franklin and others, is the political theory that the common man knows what he wants and deserves to get it ... good and hard. Democracy is two wolves and a lamb voting on what to have for dinner. Or, if you prefer; democracy is the oppression of the minority by the majority. It is a fraudulently legitimized method for government to grant privilege to some by violating the rights of all the others. We have no one else to blame for the sorry state we're in. Playing on our fears, the government's in the US have slowly spoon fed us little bites of socialism and fascism which we have not only accepted, but in many cases, eagerly consumed.

JGR|8.2.08 @ 10:46AM|#

john wrote "We could effectively stop this abuses of police power simply by reducing the number of cops in this country by perhaps 90%, a number more appropriate to actual police manpower requirements."

Nope.

It's not the COPS, it's the idiot LEGISLATORS who have written all of these laws that they need cops to enforce.

Today's news includes the story of a competitive swimmer who faces a criminal conviction (and, of course, fines) for SWIMMING ACROSS A LAKE.

The answer to the question "May I search you car?" is a simple "May I search YOURS?"

JGR|8.2.08 @ 11:00AM|#

Here's the link to the "criminal swimming" story:

http://kstp.com/article/stories/S529469.shtml?cat=1

bob|8.2.08 @ 2:38PM|#

Government as defined by Webster's dictionary; the system or policy by which a political unit is governed. Govern being defined as; to guide, rule, or control by right or authority. All governments rule their people with controls (laws), and they vary greatly in the different governments. All governments guide their people, to live as the government desires. This does not vary much, for all governments guide and control the majority of their people to live so that the minority can live in extreme excess.
For example in the U.S.A., the wealth is distributed as in this way: 60%for the top 5%, 35% for the next 35%, with 5% left for the last 60%. I compare this to a man who guides, rules, and has control over a hundred dogs. Then each day at feeding time has 100 pounds of food, gives sixty pounds to the first five dogs. Then one pound to each of the next thirty-five dogs, then throws the last five pounds to the remaining sixty dogs. Some would say that if the first five dogs work harder they deserve the sixty pounds. When in fact, the five would grow fat and lazy, the thirty five would do most of the work, and the toughest of the sixty would do as much as they could. If you compound this over many generations some of the sixty would get very weak and sickly. When society sees the weak and sickly among the sixty, they would go and charge the man for crimes of cruelty, and give to the hundred dogs all they could eat and complete medical attention. Thereby, no one dog gets any better than another.
Why if society does this for dogs, why not for their fellow man? Why would man put dogs above themselves thinking they deserve more consideration?
Knowing that organized religion came before governments, I would blame organized religion. For centuries organized religions have worked with governments and the five percent with the wealth. Too many times, saying that their actions are acceptable. Teaching, rather, that so many other things, often mere scapegoats, are wrong and the causes of poverty and unproductive people.

|8.2.08 @ 5:54PM|#

JGR:

The evil swimming bandit? Maybe he ought to be a villain in a comic book. hehe

|8.2.08 @ 6:05PM|#

Bob:
The flaw in the analogy is that each dog is responsible for finding his/her own food. If the top five percent is better at hunting, and the bottom 60 are either inept hunters and/or sit around licking themselves, how do they have a right to force the top dogs to give them part of their hunt?
Who is the dogs' owner? The government?
Who is society? And why is it just sitting around and not helping the man?
If I'm a top hunter dog, and everyone gets the same, what is my incentive to hunt for more food? Seems like the net effect is to have the bottom 60% starve.

bob|8.3.08 @ 7:14AM|#

thanks for the input contextant

Bruce|8.3.08 @ 3:04PM|#

In 25 years patrolling the streets of NYC's worst neighborhoods, I have never asked a motorist to consent to a search. There are a myriad of legitimate reasons for searching a vehicle - none of which require consent. Fishing expeditions are inappropriate and counter-productive.

You either have "probably cause" or you don't. I don't care for this crap at all. Refuse consent. If the officer has what he considers justifiable suspicion there is contraband in the vehicle - let him clearly enunciate that to a judge and get a search warrant.

Cops who abuse their authority reflect poorly on the 99% who do their jobs appropriately.

Bruce|8.3.08 @ 3:10PM|#

QUOTE:""Every time, a simple "No officer, I'm sorry." in a polite tone has stopped a potential search when I've been pulled over."

When I did that, they made me wait for 45 minutes for a canine unit to arrive to sniff the car. The dog didn't smell anything, of course, but it wasted a lot of time."

Inappropriate, and arguably illegal.

In detaining you for that amount of time, you were in effect under arrest. That being the case, you cannot subsequently be released in the field - you should have been taken to the station and booked, then released if an appropriate charge was not found.

In that case, file a complaint against the officer for false arrest. All this guy did - assuming this is a legitimate complaint - is compound his fishing expedition.

bob|8.3.08 @ 4:08PM|#

thank you Bruce for your service, and sharing those facts with us all

|8.3.08 @ 4:47PM|#

I had hoped someone would tell Juanita to shut the fuck up.

I think Jake did a fine job of that, actually.

-jcr

|8.3.08 @ 4:49PM|#

For example in the U.S.A., the wealth is distributed

Wealth isn't "distributed", it's EARNED, you pinko jackass. If you want more money, get a job.

-jcr

bob|8.3.08 @ 5:09PM|#

the majority of wealth in the world is not earned or distributed, but inherited.

|8.4.08 @ 12:11AM|#

the majority of wealth in the world is not earned or distributed, but inherited.

That's a marxist myth, used to rationalize theft.

-jcr

bob|8.4.08 @ 7:08AM|#

what is wealth ? how much is there? look it up

Annon|8.5.08 @ 5:23AM|#

I worked as a civilian armed guard on a military base for several years following 9/11. During my time there, "consent search" was probably the biggest buzzword. While we were only authorized to conduct compulsory vehicle searches of military personnel and civilians seeking to gain entry to the base, and only for the purpose of discovering weapons, IEDs, etc. the pressure to produce detentions that led to police arrests was extremely high. The vast majority of our detentions, and thus police arrests by our department, came from coercing consent to search from lost motorists through intimidation and fast-talk. Typically anything but a direct "no" was taken as consent, and the subjects were never informed of their right to decline (in fact I dealt with a certain level of hostility for suggesting they should be informed on multiple occasions). Many times when we did not obtain consent threats of various types were employed, such as calling out the police or MPs (who technically had no greater powers of search and seizure than we did). Though none of the threats were illegal or outside our power to employ, they preyed on the imagination in the way vague threats often do. Taken to this level, nine out of ten subjects gave consent.

While these tactics were only used upon reasonable suspicion, were highly productive, and I can confidently say were not racially biased, I was never comfortable with the policy during my employment. I relate this anecdote mainly to emphasize that these practices are widespread, extremely effective, and certainly undermine 4th Amendment rights. The fact that we were able to take drugs and contraband, and in some cases a *lot* of drugs and contraband, off the streets and out of the black market, does not justify the methods we used in my personal opinion.

I post anonymously in this case because, although I am not currently employed by the government, I don't wish to jeopardize future employment. Please feel free to reproduce this in full.

Justen|8.5.08 @ 5:32AM|#

@JohnE:
In what state is it illegal to operate recording equipment in your car? I understand why radar detectors are illegal, though I disagree with the rationale, but I do not see how recording equipment can be put to use for anything but curbing police abuse through accountability. It cannot increase the ability to commit crime or evade arrest, it cannot be used to endanger the officer (except in any way that any other light blunt plastic object can be).
I am hard-pressed to imagine a legislature who would enact such laws.

|8.6.08 @ 12:50AM|#

Bruce:
You are a credit to the force. I have long thought there are two types of police officers:
1. Punks with badges who went thru the academy so they can throw their weight around.
2. Guardians who protect others without their ego getting in the way, and have the integrity and discipline to not abuse their power (and sadly will almost never be recognized for it.)
You are obviously a #2. Cheers to you, sir!

|8.9.08 @ 9:55AM|#

Sorry to correct you but your comment, " vague hunch, racial prejudice or simple malice" is ABSOLUTELY incorrect. I work the highway in a New England state and I can tell you I have NEVER asked for consent based on "racial prejudice or simple malice". I have asked when I have a "hunch". That is called police work and a simple "no" puts an end to it. I respect people's right to refuse even when I know someone has something to hide. Our COnstitution requires that I have to work to make arrests most of the time and I have no problem doing so.

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