Unfortunate as it may be, police rely heavily on the general public being unaware of their Constitutional rights. A majority of people who become charged with victimless crimes such as drug possession become ensnared in the criminal justice system due to not being informed of their ability to stand up to law enforcement’s attempts to have them waive their rights. As a police officer, I did it countless times. I was even trained how to do it by the police academy.
“I’m going to have to ask you to allow me to look in your vehicle.” Did I ask or order you to do something? I asked, in an ordering sort of way.
I’ve become a real skeptic of “consent” searches for the simple reason that in order to be lawful they must be given freely and voluntary. Three officers surrounding a sixteen year old new driver and repeatedly asking them to allow a search is hardly free or voluntary when the young driver is scared s-less. Of course the exact level of hounding which is sometimes required to obtain “consent” never appears in the police report.
Reports are always written in the way that gives an impression that the police simply asked and received a waiver of rights. In practice, it doesn’t always happen that way.
I think this judge said it best:
U.S. v. Minker, 350 US 179, at page 187 “Because of what appears to be a lawful command on the surface, many citizens, because of their respect for what only appears to be a law, are cunningly coerced into waiving their rights, due to ignorance.”
I have a solution.
How about a codification in statutory law which requires that in order for a government enforcement agent to receive “consent to search,” the consent must be on a form which informs the consent-er that they have an absolute right to refuse and that the refusal cannot be used against them.
I’ve put together a sample piece of legislation which if passed would require just that:
AMEND CHAPTER 595-A BY ADDING THE FOLLOWING:
Section 595-A:10 – Written Waiver of Rights Required
I. Any state, county, or municipal law enforcement officer or agent who requests that an individual consent to a search of their person, property, or vehicle shall first obtain
written consent from the individual. The written consent to authorize a warrantless search shall be affixed to a form which informs the individual of their absolute right to refuse a request for a warrantless search without repercussion.II. Any evidence obtained as a result of a consent search which was performed contrary to this section shall be inadmissible as evidence in any criminal or civil proceeding.
I’m not entirely sure how law enforcement would frame their argument to oppose this measure. I suppose they could argue that their job is much easier when people are naïve to what their rights are.
Wouldn’t you love to see an argument made against informing people of their rights by people who are sworn to uphold the Constitution? It’d be very telling and would make for an excellent outreach video.
Would you support this type of inside-the-system action?
I welcome your critique and ideas.
