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  1. #1
    Join Date
    Sep 2009
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    Brawley, CA 92227
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    288

    Default Does Consent Make Any Search Lawful

    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.

  2. #2
    Join Date
    Jan 2006
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    38,867

    Default Re: Does Consent Make Any Search Lawful

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

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

  3. #3
    Join Date
    Feb 2010
    Location
    CT & IL
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    5,273

    Default Re: Does Consent Make Any Search Lawful

    sucks to be them ! I tell the TSA at airports they best not violate my 4th amendment rights ... they'll ask what I mean & I tell them that if they do, they'll know immediately .... never got the crotch grab

    Why? Because I'm an american in america...

  4. #4
    Join Date
    Jan 2012
    Location
    Tacoma, WA
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    1,534

    Default Re: Does Consent Make Any Search Lawful

    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.).

  5. #5
    Join Date
    Jan 2006
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    38,867

    Default Re: Does Consent Make Any Search Lawful

    Quote Quoting PTPD22
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    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.

  6. #6
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    Jan 2012
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    Tacoma, WA
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    Default Re: Does Consent Make Any Search Lawful

    Quote Quoting jk
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    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.

  7. #7
    Join Date
    Jan 2006
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    38,867

    Default Re: Does Consent Make Any Search Lawful

    Quote Quoting PTPD22
    View Post
    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

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