I previously wrote about the “Stop & Frisk” being one of the recognized exceptions to the requirement in the Fourth Amendment that the police obtain a warrant before they can search you or your property. Well, another of those exceptions is consent. Just like your rights under the Miranda Rule or any other constitutional protection, you can waive, or give up, your right to have the police go get a warrant.
But why would you?!
Let’s say you are driving home at night and, unknown to you, one of your car’s taillights has burnt out. A police officer pulls you over based on the probable cause that you have violated the Vehicle Code statute requiring all your lights to be in operative condition.
The officer walks up to your car and speaks to you through the window. (The officer chooses which window he or she wants to use.) You are informed about the light problem but the friendly officer says you are only going to get a warning so you can get it fixed. You’re happy you are not getting a ticket and, besides, you want to get the taillight fixed for your own safety.
During the exchange, the officer, of course, will ask to see you driver’s license, the car’s registration, and your proof of insurance. If they are expired or don’t exist, you risk walking home.
Your name will also be called into the police dispatcher to see if you have any open arrest warrants. If you do, and depending on the original crime, you may be required to sign a Promise to Appear or be arrested and taken to jail.
This night, however, everything is current and you have no warrants. After the officer has you sign the warning, he or she asks in the same friendly tone, “You’re not carrying any bombs or bazookas today, are you?” You laugh and say, “Of course not, Officer.” The officer, still smiling, says, “Then you wouldn’t mind if I had a look inside your car, would you?”
You’re a law-abiding citizen. You’re trying to be cooperative. You feel indebted to a certain extent because the officer only gave you a warning. So, like a dummy, you say, “Sure, Officer, go ahead.”
The officer explains he can’t have you standing behind him while doing the search so asks you to stand on the curb or back with his “cover” officer. Again, you agree.
Maybe the officer searches your car, finds nothing, says “thanks,” and sends you on your way. You drive off thinking how nice the officer was and what a cooperative citizen you are.
Maybe, instead, the officer finds a baggie of coke or meth dropped by your daughter’s shady boyfriend or that old high school buddy you gave a lift to last week. Maybe it’s an envelope of child porn photographs your brother-in-law left in the glovebox after you let him “borrow” your car. What are you going to say? “Gee, Officer, I don’t know how that got there. It’s not mine.”
Do you think there are any cops who haven’t heard that alibi from half the crooks they arrest? Do you think you are not going to be arrested? Think again – and then call me or any good criminal defense attorney.
Better yet, know your Constitutional rights and don’t just give them away because you want the police office to think you’re a nice person.
If a law enforcement officer asks you for permission to search your car and you are still trying to be polite, what’s the matter with just saying, “No, I’m sorry, Officer, I’m late for an appointment, for work, for picking up the kids, etc.?”
Or, if you foolishly threw away your constitutional right and gave permission, you can take it back! Just say, “Oops, sorry, Officer, please stop. I just realized I’m late for this or that. I’m going to have to take off.” The officer may not like it, but he or she will have to stop. If, by chance, the officer stumbled across something illegal in your car after you withdrew consent, it could not be used against you in court.
I will continue this topic next week when you will learn how the police will try to get consent to search your house without a search warrant. Until then, feel free to contact me through my website about any questions on the criminal law or, if you have been arrested, call me directly at 619-431-1076.
Because they have an important job to enforce the laws and apprehend criminals, society gives the police a lot of authority. One of those powers is the authority to stop, or detain, suspected law violators.
First, do not confuse a stop with a consensual encounter. The police are certainly free to try to talk to you just the same way you may attempt to engage any stranger in conversation. As officer might say, “Excuse me, do you mind if I ask you a few questions?” You can either choose to cooperate, say nothing and keep walking, or say, “Gee, I’d like to, officer, but I’m late for an appointment.”
If an interaction doesn’t sound consensual, to avoid any confusion, simply ask. “Officer, am I being detained?” If she says, “No,” you can either walk away or stay and find out what the officer wants, after which you are still free to walk away.
Detentions are not consensual encounters and, make no mistake, a stop/detention is a seizure under the Fourth Amendment.
What exactly is a constitutional “seizure?” 1) A governmental interference (usually by the police) with any property in which you have a possessory interest, or 2) with your liberty to move about freely.
As mentioned in an earlier post, the Fourth Amendment says police need a warrant to search and seize a person or item. However, almost a half century ago, the U.S. Supreme Court created one of the exceptions to that rule.
In the case of Terry v. Ohio, the Supreme Court said the police are trained and put on the street for a reason. Therefore, the court was not going to require probable cause or a warrant to detain someone. Instead, if they have “reasonable suspicion” (a standard lower than probable cause) that a crime is about to be committed, is being committed, or had just been committed, the police have the authority to stop/detain someone in order to conduct a preliminary investigation.
How does a detention occur?
The most common one is you yielding to some demonstration of police authority. For example, you are walking out of the mall and an officer says, “Stop! Police!” and you obey his or her command and stop. Rarely will an officer stop you by putting his hand on your chest, or grabbing a hold of your shirt, but if it happens, you have been detained.
Maybe more familiar to most people is the traffic stop. While you are driving, a marked police unit gets behind you with flashing lights and one solid red light, with or without the use of the “chirp” or the siren. As soon as you pull over, you have been detained.
Detentions must be of short duration, no longer than the police need to find out if criminal activity is happening. If the detention goes on too long without added justification, it can turn into an “in fact” arrest, which is the equivalent of a false arrest. However, even though you are not under arrest, the officer is in charge of you during the detention and you are not “free to leave.”
Of course, in order to investigate the possibility of criminal activity the police must be able to ask questions. There is no requirement for the police to recite the Miranda rights because the person being stopped is not under custodial arrest at that point. However, that doesn’t prevent you from telling the police you want a criminal defense attorney present before you answer any questions.
During the stop, if the correct conditions are present, the police may also “frisk” you, or stated another away, pat you down for weapons, but I will take up that subject in a future blog post.
If you ever have any question about this or any of my other blog posts, feel free to send me an email at firstname.lastname@example.org.
In my December 28, 2015, blog post about Miranda, I briefly mentioned the importance of not waiving (giving up) your Miranda rights and speaking to the police after being arrested without the presence of an attorney who will stick up for you. Today, I want to emphasize the need, and the importance, to actually ask for such representation.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.