A change of Scenery: Searches & Seizures

D

Derius_T

New member
Just a quick question, specifically to any LEO's, but please add your thoughts to this one. This is a discussion that has turned somewhat heated between my father and me, and wanted other opinions.


Scenario:

You are pulled over by LEO. Lets say that there is ABSOLUTELY NOTHING that caused the stop, other than you were speeding. After verifying all of your info, and all your papers are in order, you are asked if you would mind if your vehicle were searched? What would you do?

Here are the points we differ over.

1) I say that to politely decline to be searched is perfectly within your rights. My father says that by refusing the search, you will MAKE the police suspicious, and give them more reason/desire to search. He says if you refuse the search, you can and will be arrested, and you will get searched anyway. His thoughts are if you have nothing to hide, give up your RIGHTS, let them search, and be on your way, because if you don't, you'll piss them off, and not only will you get searched anyway, but posibly charged with other things, detained, arrested, ect. He said it is completely useless to NOT COMPLY COMPLETELY with the police because you can't win, and they can and will make your life hell for trying to be a "tough guy", and not obey them to the letter.

2) He also maintains that if an officer decides to randomly question you for whatever reason, and you decline to answer his questions, that he can and will arrest you. I told him that I believe it is perfectly legal not to answer questions, if you so choose, and ask if you are under arrest for anything. If the officer says no, then you are free to leave. My father says if you try this, you WILL be arrested, or detained, just for being a "smart-a@@".

I know I haven''t explained everything fully, but please someone help me out one way or the other on this issue. Preferrably LEO's or legal peoples?

My dad is under the simple impression to comply no matter what, or you will be forced to comply anyway, you have no choice, you can't win against the police, and anything they want to do to you they will, and you only make it worse by 'fighting' it.

Now, this is not intended as an anti-LEO thread. I am a law abiding citizen who complies with law enforcement any way I can. But I am interested in what the LAW ACTUALLY IS, reguarding these issues.
 
Former LEO/C.O. Current Investigator

Politely decline.

I've had this done to me, and I've done it. In the former, it was to see what an 'average citizen' would do. I never pushed it. In the latter, it's happened only a couple of times. Both times, the officer sent me on my way with no hassle. BTW, this is in California.
 
I think it is pretty obvious that refusing to volunteer for search or interrogation isn't grounds for arrest.

A polite "no thank you" when a request for search is made is respectful, polite, and well within your rights.


If you are truly on the up and up, any further action taken against you has future dollar signs attached to it.
 
I've politely declined to let them search a couple times. Lacking probable cause and apparently being honorable officers who would not make something up, I was sent on my merry way.

Who cares if it pisses the guy off? If he gets P.O. then the message sent from that indicates that he expects full sheeple compliance which is the last message we citizens want to confirm for him. Blind compliance to the uniform is a bad idea. Letter of the law guys (just like they say.) Politics begin on the street and you wouldn't want to send the message to the politicians that anything goes, would you?
 
Derius,

In NY state there must be an articulable reasonable suspicion to even ask to search. The situation you described is a big no no in the empire state, but I am not sure about other states. I rarely seek permission to search a vehicle.(but have and do under very limited circumsatnces) Most of the time I operate under the premise that either I can or I can't search, based on probable cause to believe that evidence of a crime is contained in the vehicle. If it is there, the vehicle is mine. If not, have a nice day. A good rule of thumb to go by is that if an LEO is asking permission then they don't have enough to search outright. Fishing expeditions by police embarrass me, especially when the susbject of said expedition is an unknown and apparently honest citizen.

The copper that would arrest you/hassle you for exercizing your rights is few and far between. If faced with this situation as a citizen I would advise anyone to politely decline and ask to leave. Maybe a follow up with a supervisor would be in order after you have left the stop. If I were a supervisor I would certainly want to know what my people were doing and if they are doing them the right way. I have been turned down for searches in the past and I will be in the future. On all that I can recall I was just about certain that there was dope in the car, but didn't have PC to search. That is fine. Have a nice day. Don't bet on not seeing me again.

I can assure you that in my experience, rouge cops who go out trampling peoples rights are dealt with harshly by peers, supervisors and especially D.A.'s and judges. You have to understand that one of the only things a cop has is his credibility. If you go out intentionally doing things the wrong way you would be forced to lie, fabricate and perjure yourself. Do that for long and your credibilty will be shot to hell and you are done. The D.A. will refuse to prosecute your cases, the ones they do are thrown out by the judge and your peers won't repect you. That is reality no matter what all the LEO bashers want to tell you.

Steve
 
politely decline.....

If its just a routine traffic stop most of the time you would be sent on your way. Most Officers who are stopping guys they suspect of doing something are just using the traffic stop to detain you till they can get to the real business at hand. I am pretty sure that most police could follow you for a few miles and you will have committed some type of traffic offense.
 
If you go out intentionally doing things the wrong way you would be forced to lie, fabricate and perjure yourself. Do that for long and your credibilty will be shot to hell and you are done. The D.A. will refuse to prosecute your cases, the ones they do are thrown out by the judge and your peers won't repect you. That is reality no matter what all the LEO bashers want to tell you.
Click to expand...

It depends on the jurisdiction. We've got a DA whose own credibility has been destroyed by going to jail for contempt repeatedly. He just tampered with a grand jury in order to get an ADA off a DUI. He keeps getting elected because he has a grip on the political system.

Back to the original point. If you refuse, you might make them suspicious. I've had LEOs tell me that refusal to allow a search can trigger some suspicion. So what? As stated by steve154, it's unlikely they can go too far in "finding" probable cause for a search, but you might get written up for every possible violation. And you'd better not speed in the area or commit any other violations.
 
Deiurs,

Guess I have to agree with the majority here. Tell him/her no and be polite about it. I always operated on what a couple of friend of mine who are deputies told me. "If I have probably cause I will search without asking, if not won't ask to search". That is certianly not a legal oppinon but I have never come across this situation before so I can't say for sure how it would go down. The last time I was stopped the Patrol officer did not even ask for my sidearm (CCW) since it was in a fanny pack in the car just warned me to slow down and let me go.

HTH

p230
 
Decline politely.
I was pulled over a couple nights ago for rolling through a stop sign.
I was polite, apologized, and got off with a warning. No problem.
 
His thoughts are if you have nothing to hide, give up your RIGHTS, let them search
Click to expand...

Derius -
No disrespect to your father intended, but that is "sheeple thinking." It is what people in our so-called culture have been fed from day one of first grade, to wit:

Submit, conform, obey.

If you follow this line of thinking to its logical conclusion, someday America will be like Japan. In Japan, the police can stop anyone on the street and search their belongings and frisk them for any reason under the ruse of "safety." I'll bet alot of good-looking women in Japan are frisked for "safety."

We here in America have this thing called the Fourth Amendment. If we don't use it, we will lose it. I have never been told by anyone that exercising my rights as an American citizen is "being a smarta--." If it is, we are in deep trouble.
 
Have him watch this: http://www.flexyourrights.org/busted/

Granted it's cheesy and campy but it gets the point across. I guess if a cop really wants to be an ******* he could call in the K9 unit and have you sit by the side of the road for an hour while they search your car, but considering the amount of paperwork they already have on their plates I doubt most would bother.

With all due respect, your father's attitude is part of the reason these misconceptions are spread in the first place and why most citizens will easily give up their rights. Ask him "Well if you have nothing to hide then I'm sure you won't mind if the FBI were to wiretap your phone and place video cameras in the house, right?"
 
Redworm,

I started looking at that site and thought that I was going to see another all cops are nazis site. I read through much of it and that is not the case. Pretty good common sense stuff there and I ESPECIALLY like the way that they constantly say to be calm and respectful. That will get you a lot of mileage. Good site for all.
 
Oh by the way, New York State has an exception on searches. A DEC officer can search your car at any given moment if he believes he has cause.
I have many friends who are troopers and if they want a legal search they'll detain you and call in a DEC officer. You see here in NY, someone left the window open and our rights flew out a few years back.

kenny b
 
kenny b,

I am very familiar with the NY State Criminal Procedure Law(having read it and referenced it many times) constitutional law and state case law dealing with search and seizure. I am not familiar with anything that grants DEC officers any special powers to be exempt from any rules that apply to any local, state, or federal law enforcement officer. The U.S. supreme court interprets the Constitution and makes case law. The hallmark case regarding warrantless vehicle searches is Carroll v U.S. In a nut shell, the court says that a police officer may search a vehicle without a warrant when he has probable cause to believe that evidence of a crime is contained therein. The scope of the search includes anything that a warrant issued by a judge would have included-Locked containers and the trunk as long as the the object sought could reasonably be contained there. A state can make further restrictions on that ruling as to what it's police officers can do, but can never go the other way and say that a police officer can search a vehicle whenever he feels like it, just because. You must have probable cause and that is the minimum in any state, by any law enforcement officer, period.

NY State has some of the most restrictive search and seizure rules in the country. Name a federal case dealing with search and seizure and NY state has a case further tightening the federal case. If our state has DEC officers conducting searches of vehicles based on less than probable cause to believe that evidence of a crime is contained in the vehicle, someone needs to get a good civil rights lawyer and get paid. But hey, that's just me talking. I could be wrong.
 
Here you go, ready to be shocked!

DEC officers in NY seem to sitith at the right hand of God here.

"ECOs are given a broad range of authority to conduct warrantless searches to enforce the law. They may:

Search without search warrant any boat or vehicle of any kind, any box, locker, basket, creel, crate, game bag, package or any container of any nature and the contents of any building other than a dwelling whenever they have cause to believe that any provision of this article or of any law for the protection of fish, shellfish, crustacea, wildlife, game or protected insects has been or is being violated, and to use such force as may be necessary for the purpose of examination and search. (ECL §71-0907(4)(b).)"

NYS Law

kenny b
 
1. What is a DEC officer?

2. Regardless of what the NY state law says it can't deny you a Constitutional right.
 
A DEC Officer would be a state police position working under the Dept. of Environmental Conservation, a Game Warden would be a DEC Officer.

I totally agree its unconstitutional, but as you see it is a Law on the books and you could clearly see the abuse it could cause. It may not hold up at the very end but how many could afford to take it to the end.

State Police/ Police State- is there a difference in NY?

kenny b
 
Wow, I have never seen that before and I am shocked. I don't get it. There has to be case law challenging this. That is scary!

I don't have much contact with ECO's in my county. They are spread very thin. Only 3 or 4 for a huge area. The few times I have tried to contact them they were MIA. But they were right there to give me a ticket the one time I bought a new fishing vest and left my license in the old one :) I produced the license at court and showed that it was dated well before the date of the ticket. Not guilty of fishing without a license. Good old NY State still got me for a non-waverable $25.00 court fee. Bless them. I know they took my money and put it to good use improving the habitat of the local fish and game :barf: Sorry for the digression
 
".......whenever they have cause to believe that any provision of this article or of any law for the protection of fish, shellfish, crustacea, wildlife, game or protected insects has been or is being violated....."

They still need probable cause, Carroll still applies.
 
You must log in or register to reply here.
Back
Top