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  • Disposition after refusal to be searched?

    I looked and saw this thread, but it doesn't really go over the disposition of the Police Officer after someone refuses to be searched.

    Here's an example;

    My friend has a nerve disorder. As a result, his hands are always shaking. When he gets pulled over, the Police Officer naturally sees it and becomes suspicious. My friend tells the truth, and naturally the Police Officer thinks he's lying (it doesn't help that my friend also has shaggy hair and drives a beater). Invariably, this usually leads to the Police Officer asking my friend if it's okay to be searched. My friend agrees. This has happened every time he gets pulled over, a whopping two times.

    I told my friend that he shouldn't agree, that our rights are there for a reason. His stance is that an Officer will be more likely to issue citations, etc for refusing and why antagonize the Officer.

    My question is, and yes, I do understand that it will differ from Officer to Officer and from city to city, but in general, what is your take when someone refuses to be searched? Are you more likely to become (even more) suspicious? Or view it as being uncooperative? Or issue the citation that you pulled them over with to begin with? (Assume that the person is being polite in his refusal)

    Bonus question: What would you do if you weren't in your native town and an Officer asked to search you?

  • #2
    I usually dont ask to search someone or something unless I already know I have a legal reason to do so. Consent is always a great additional tool to have even if you had a legal reason to search. On the rare occasions where I have asked for consent without anything else and it was denied I handled the stop the way I would have if I had searched.

    Bonus question: I carry off duty so I would say NO......and tell the officer I was off duty and armed by showing my Id and badge. Im not going to let someone go searching me while I have a firearm on me.

    Comment


    • #3
      Its your choice. But remember, sometimes we are asking for consent just to be nice and/or to gauge your reaction. If I have enough suspicion to search I'm going to search, no matter your choice...

      Comment


      • #4
        They're not supposed to ask to search until you're free to go. I'll have to look up the case law, but I'm sure there can be no threat of reprisals when they ask.
        “We don't disagree, you are wrong. Until you have a clue what you are talking about we can't disagree.” - cgh6366

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        • #5
          I wouldn't normally ask to search if I don't already have the probable cause to do so. I've had people refuse. I politely remove them from the vehicle and search under my probable cause and use their refusal as a suppliment to my report when I do find what I am looking for.

          Bonus: I would be reaching across my weapon if I were pulled over, off duty, to retrieve my license. I would not reach across my weapon without informing the officer of it's presence and why it's there. I've never been in a situation where I would need to choose to give permission to search but I would certainly cooperate if I were asked. I have nothing to hide.
          -918-

          Peacemakers who sow in peace raise a harvest of righteousness. James 3:18

          Clinging to my guns and religion since 1975

          Comment


          • #6
            advice from "friends"

            Originally posted by ineffable01 View Post
            I looked and saw this thread, but it doesn't really go over the disposition of the Police Officer after someone refuses to be searched.

            Here's an example;

            My friend has a nerve disorder. As a result, his hands are always shaking. When he gets pulled over, the Police Officer naturally sees it and becomes suspicious. My friend tells the truth, and naturally the Police Officer thinks he's lying (it doesn't help that my friend also has shaggy hair and drives a beater). Invariably, this usually leads to the Police Officer asking my friend if it's okay to be searched. My friend agrees. This has happened every time he gets pulled over, a whopping two times.

            I told my friend that he shouldn't agree, that our rights are there for a reason. His stance is that an Officer will be more likely to issue citations, etc for refusing and why antagonize the Officer.

            My question is, and yes, I do understand that it will differ from Officer to Officer and from city to city, but in general, what is your take when someone refuses to be searched? Are you more likely to become (even more) suspicious? Or view it as being uncooperative? Or issue the citation that you pulled them over with to begin with? (Assume that the person is being polite in his refusal)

            Bonus question: What would you do if you weren't in your native town and an Officer asked to search you?
            Forget the fact that your friend has a nervous disorder, i'd go as far as saying most people are nervous when they get pulled over and many to the point of shaking and it is what it is brother. Your friends rights and the average motorist rights'' do not outweigh ANY officer out here's safety and if from our observations it's to the extreme that I have to ask for consent I probably already have enough to get you out of the car anyway and atleast search the "grabable" curtiledge area where you have easy access to a weapon by doing a protective sweep"..We have a very dangerous job, especially on the roadside as the numbers show with officers killed on the roadside. If I pulled you over though and I just asked because you were a bit nervous and you said "no" to a consent search then I would not search your car. I'd go back and write my ticket after I called our drug dog to conduct a "free sniff" on your vehicle in the time it takes me to fill out the summons for the reason I stopped you. I have also just asked for consent and been refused and told the motorist to drive safe and ended it, it all depends on the specific stop and circumstances. As for me being stopped by the Police when off duty I would tell them right away that I was armed and to search all they like because I have nothing to hide, unless I was in a hurry then I'd say "sure but make it quick I have to go.
            "Some people spend an entire lifetime wondering if they made a difference in the world. The MARINES don't have that problem." ....Ronald Reagan

            Comment


            • #7
              Nuthead I don't believe I've ever heard of any case law that says you must wait till someone is free to go to ask for consent search. Thats just something to help get away from the seizure time and make it a consensual encounter.

              But everybody runs into atleast one person that refuses to allow their vehicle to be searched. It's part of it, I just go on with the stop and find another one. I have no problem with an Officer searching me. I'm not going to give anybody a reason to search me.
              Where'd you learn that, Cheech? Drug school?

              Comment


              • #8
                Originally posted by JDCOP View Post
                Nuthead I don't believe I've ever heard of any case law that says you must wait till someone is free to go to ask for consent search.
                The request must be free of intimidation. If you're still holding their info, then there's an implied intimidation factor there.
                “We don't disagree, you are wrong. Until you have a clue what you are talking about we can't disagree.” - cgh6366

                Comment


                • #9
                  You do it how you think is right but we won't debate it on the ask a cop section. To the OP maybe your friend is willing to consent as to help relieve the officer of the added stress of his movements. I have stopped people before that had medical conditions that at first I thought they were up to shady stuff. Then after a little questioning it started making sense.
                  Where'd you learn that, Cheech? Drug school?

                  Comment


                  • #10
                    Originally posted by nuthead View Post
                    They're not supposed to ask to search until you're free to go. I'll have to look up the case law, but I'm sure there can be no threat of reprisals when they ask.
                    That is incorrect. I can ask to search at anytime. Because following my request and your subsequent denial I'll be making another request for a K-9 unit.

                    Now if I do a search without a warrant, proper probable cause then anything I find is worth nothing.

                    Originally posted by nuthead View Post
                    The request must be free of intimidation. If you're still holding their info, then there's an implied intimidation factor there.
                    Holding your driver's license does not constitute intimidation. If I tell you that I'll break your legs if you don't let me search, that is intimidation. Having a your info common and routine on every traffic stop in this country. Besides I have all your info in the NCIC what the heck is the difference if I'm holding it or not? If someone asks me "are you going to give me a ticket if I say no?" my reply is simply repeating the search consent question then asking for a yes or no. No strings attached.
                    Last edited by wirefire2; 09-11-2008, 06:06 AM.

                    Comment


                    • #11
                      Originally posted by wirefire2 View Post
                      That is incorrect.
                      Yes, you CAN ask at any time. However, if you're still detaining me, I'll get anything you find thrown out. Look it up. Do a search on the "voluntariness" of consent searches. Your comment about calling a K9 if I refuse just proves my point about the intimidation factor.


                      Originally posted by wirefire2 View Post
                      Holding your driver's license does not constitute intimidation.
                      Sure it does. I'm not free to go. A reasonable person may reasonably assume whether I get to go is dependent on if I let you search, thus it IS intimidation. So does the demeanor of the officer and a host of other factors.
                      Last edited by nuthead; 09-11-2008, 08:49 AM.
                      “We don't disagree, you are wrong. Until you have a clue what you are talking about we can't disagree.” - cgh6366

                      Comment


                      • #12
                        Originally posted by Outshined
                        I think you are confusing this with drug interdiction stops of vehicles. They train you to release the driver and vehicle before asking to search said vehicle.
                        No, it supposed to be done on all consent searches. If someone feels that they're being detained and that their consent to search is a condition of getting released, then a decent lawyer will get the search thrown out. There's ample case law on this.



                        Originally posted by Outshined
                        I have never heard of this practice with a person.
                        For a consent search, yes, it must be free of any intimidation. For an investigative detention (Terry stop), the rules are different.
                        “We don't disagree, you are wrong. Until you have a clue what you are talking about we can't disagree.” - cgh6366

                        Comment


                        • #13
                          Originally posted by Outshined
                          I guess I would ask, why would you want to search someones person, other than officer safety, (you do not need permission), probable cause to believe they are holding illegal (you do not need permission), are in a high crime area and you believe a crime has been committed, is about to be committed, (you do not need permission), you are under arrest, or being detained for questioning (do not need permission) I am not sure there are a bunch of cops out there searching people for no apparent reason.
                          Easy, you're suspicious. The OP said he friend got asked to be searched both times he got pulled over because of his nervous condition. I could definitely see how someone shaking that much might raise an eyebrow or two.

                          Originally posted by Outshined
                          PS a K-9 hits on you indicated you are carrying drugs, on person or in vehicle. (No permission needed).
                          I know. K9s can be used to sniff around the outside of a vehicle with no warrant or permission. No argument there. I was simply saying that putting ANY condition on a refusal to consent to a "consent search" IS intimidation.
                          “We don't disagree, you are wrong. Until you have a clue what you are talking about we can't disagree.” - cgh6366

                          Comment


                          • #14
                            Originally posted by nuthead View Post
                            Sure it does. I'm not free to go. A reasonable person may reasonably assume whether I get to go is dependent on if I let you search, thus it IS intimidation. So does the demeanor of the officer and a host of other factors.
                            Detention/Terry stop DOES NOT equal intimidation. By that rationale, anytime someone gets pulled over they are being intimidated. I can see the comaplints flying in now against officers in Seattle if that becomes labeled as intimidation.

                            You can ask whenever you want, of course always best to get the consent in writing, and the conversation and signatre on dash-cam if there is any doubt. What if you don't have your license, but it's valid. In WA, that only an infraction - so am I intimidating that person? In WA it might be a good idea to make ther "clean break" since pretext stops are prohibited, but if it is within the scope of your initial investigation, the voluntariness of the consent is an issue to be determined at trial.

                            Now if you live in WA, and I come to your house for a "knock & talk" I have to tell you ahead of time that you can refuse, can limit and can revoke the consent search at any time. (Stave v Ferrier).

                            I agree with the other posters, always best to have a legal reason to search anyway, consent just makes a stronger case. Also might be checking your reaction.

                            I like to explain to new officers that law enforcement is kind of like a game with more rules than you could ever possibly remember. Just because I know more rules than the general public, it doesn't mean I'm cheating. If you refuse the search, I lose that round, I move on - but you still get your ticket. Not a reprisal, that's why I stopped you.
                            "We're not in this business for the money. We're not in it for the excitement, and moments like this. Duty, honor, country, service, truth, and justice are good. But you can do that from behind a desk. In the end, you carry a gun and shield out into the field for the sole purpose of confronting the bad guys. The enemy. There is no other reason to be on the front lines." ~Nelson Demille

                            If your story involves Peanut Butter and an animal - give up now!
                            sigpic

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                            • #15
                              [QUOTE=Outshined;1405412]I guess I would ask, why would you want to search someones person, other than officer safety, (you do not need permission), probable cause to believe they are holding illegal (you do not need permission), are in a high crime area and you believe a crime has been committed, is about to be committed, (you do not need permission), you are under arrest, or being detained for questioning (do not need permission) I am not sure there are a bunch of cops out there searching people for no apparent reason.

                              So you can articulate a SEARCH on somone for being in a high crime area? I would say from the examples you gave, you have Reasonable Suspicion for a PAT down, not a search. Maybe I'm mis-reading your post.

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