Does Consent Make Any Search Lawful

[huntsab]

My question involves police conduct in the State of:CA

Young Hispanic males say they are being searched in a way that sounds closer to a strip search by the police in our community. These young people either do not know, or, are too afraid to invoke their rights. They are commonly stopped walking down the street. Police search them, including the contents of their pockets, they check their eyes. The young people do not object to these searches because they are afraid of the police. One mother told me that the police donned latex gloves and put their hands inside her son's pants, front and back, because that is "where suspects hide drugs." I've never heard of this but I was wondering how far police could go as long as the suspect did not object? These young men are not under arrest or on probation.

[jk]

if you don't object, it is presumed you permit the search.

teach them: no, I do not consent to being searched

[PTPD22]

Not resisting a search is really not the same as consenting to a search. The courts have been very clear about this here in Washington State, although less so in California. Consent has to be given knowingly and voluntarily, without coercion or intimidation. Here in Washington, a consent search requires an advisement of rights, called a "Ferrier" advisement, in the same way police are required to give a "Miranda" advisement with regards to voluntary statements. While the courts in California have not gone nearly this far, a consent search can still be challenged if the person searched was reasonably unaware they could refuse the search or if the police were intimidating or coercive. For example, if the cop directs cooperation with a search ("put your hands on your head. I'm going to search you now.") rather than asks ("You don't mind if I search you to make sure you don't have any drugs or guns on you, do you?"), or if any retaliation or punishment is stated or implied (You can let me search you or I will just detain you until I get a warrant. That might take a couple of hours.).

[jk]

Not resisting a search is really not the same as consenting to a search. The courts have been very clear about this here in Washington State, although less so in California..

while I agree, in general, I believe there is way too little information to really address the OP. That is why you teach the kids "No, I do not consent to a search". At least that way, if there is some incriminating evidence found and the search was not legal, their outright denial to allow a search will help them. Acquiescing allows the cops to argue they agreed to the search. After all, the question: you don't mind if we search you, do you?, tends to cause all sorts of confusion.

is the negative response no or yes? Obviously it is yes but who feels like it is the answer that answers the question in the negative and denies permission? Along with that, if the next question is; can we search you? and then; is it ok if we search you? there is really confusion.
stop the confusion. Just say: no, I do not consent. There is no confusion and no claim to an error by the cops.

[PTPD22]

stop the confusion. Just say: no, I do not consent. There is no confusion and no claim to an error by the cops.

I fully agree. Making a clear, unequivocal refusal of consent is best. I was merely making the point that the lack of such an unequivocal denial does not automatically mean that the search cannot be successfully challenged on voluntariness. The OP specifically mentioned young Hispanic males. With this demographic, the chances of successful challenge are even greater. If they were not born/raised in the US, they may truthfully have been unaware that they could refuse consent without consequence. In many countries south of us, the police have much less oversight and there is much less recourse for abuse of authority. In those countries, a refusal to consent might well be seen as a challenge to authority and provoke the use of force, regardless of what the actual legal authority is. Likewise, if the young man is not fluent in English, he may truthfully have not known that the officer was making a request rather than giving orders. Of course, even a 10th generation American of western European decent can be intimidated and coerced into unwilling compliance when confronted by a couple of uniformed, armed police officers with the implied authority of the law behind them.

So, yes, education is the best remedy. People should know that, while it is a bad idea to physically resist police, they do have the right to refuse consent (to a search, answering questions, making statements, or whatever) and should state that refusal clearly. However, short of a statement of "I don't have anything to hide. Search anywhere you want." searches can still be successfully challenged. And, it never ceases to amaze me how many idiots give me just such clear consensual statements...and then I find dope or other contraband in their car or in their pocket! It's the stupid crooks that not only keep me in a job, but also make it so entertaining.

[jk]

And, it never ceases to amaze me how many idiots give me just such clear consensual statements...and then I find dope or other contraband in their car or in their pocket! It's the stupid crooks that not only keep me in a job, but also make it so entertaining.

as well as making great reality television

[huntsab]

Why would anyone voluntarily consent to a search, knowing they would be arrested for a crime, when all they would have had to do is say "no"? It is doubtful people are simply "idiots."Many people do not know their rights or are not confident in their knowledge in the moment. Also, police are allowed to pat down the outside of our clothes. Invoking our rights during a search is a little different. Physically and psychologically, we are in a less powerful position. If police would simply respect everyone's 4th Amendment protection against unreasonable searches we would live in a more just world. The people who have the least- money, education, opportunities-are taken advantage of the most. Kids still study the Constitution in school but how that translates to the real world is constantly changing. In this community there is a real fear of police violence.

[jk]

huntsab;628025]Why would anyone voluntarily consent to a search, knowing they would be arrested for a crime, when all they would have had to do is say "no"?

I suspect that is a big question in everybody's mind.



.

Also, police are allowed to pat down the outside of our clothes.

ah, but there must be justification, except in New York City.

Invoking our rights during a search is a little different. Physically and psychologically, we are in a less powerful position. If police would simply respect everyone's 4th Amendment protection against unreasonable searches we would live in a more just world.

but you have to realize that "reasonable" is not only specific to the situation but it has been defined differently over the years.

The people who have the least- money, education, opportunities-are taken advantage of the most

.well, there is a pretty obvious correlation with affluence and propensity to commit crimes, at least such as the type that would involve being frisked on the street. Remember, profiling in itself is not necessarily illegal.

In this community there is a real fear of police violence.

is there also a real fear of robberies, rapes, assaults, and any other street crime? I tend to see a correlation with police violence and prevalence of street violence as well. Not that it justifies it but just that it is more common in high crime areas.

[huntsab]

Year	Location	Description	Murders	Rapes	Robberies	Assaults	Burglaries	Thefts	Vehicle Thefts	Arson	Crime Index
2010	, CA	Count	0	0	2	3	21	44	19	0
	, CA	Per 100,000	0.0	0.0	13.6	20.4	142.6	298.8	129.0	0.0	251
	California	Per 100,000	4.9	22.4	156.0	257.4	614.3	1,612.1	409.4	NA	1,591
	U.S.	Per 100,000	4.8	27.5	119.1	252.3	699.6	2,003.5	238.8	NA	1,610

[jk]

not sure but I suspect there was a city in front of the ,CA and it was likely your city. Are you attempting to show me the crime states for your city as well as the other areas listed/

If so, you also need to find some statistic showing incidents of police violence...unwarranted or improper police violence in those same areas.