Looks like NY has started enforcing their SAFE magazine ban.

[T.O.M.]

In the scenario Cordex laid out, the officer appears to have acted within the law.  Only flaw may be that the officer did not indicate that the driver was free to leave before initiating the conversatiion and search.  I haven't had tie to researcch the issue, but I think that is still required.  And there will be an argument about asking the driver out with no reasonable suspicion, but rather just a hunch or gut feeling.  Bottom line is that this senario is pretty good police work if it happened as described.  Unfortunately it doesn't always happen that way.

[Balog]

Isn't it funny how, if a random guy sidles up to a stranger's car with his hand on a gun and "asks" if they "consent" to have sex with him, we'd interpret that as non-consensual. But when the guy has a badge, and the full force of the .gov behind him, then it's totally voluntary and consensual when he asks to search you and your car. Just good solid policework, serving and protecting etc.

[geronimotwo]

^^^  i concur with your sentiment.  the police are not only taught the command voice, but body language that can be equally intimidating.

how bout the ones who vote em in?  repeatedly?

isn't it bizarre when people so readily give up their freedoms? 

[cordex]

I know it sounds somewhat hypocritical, but I don't think people who otherwise have their *expletive deleted* together should be subjected to the justice system for doing something that in some jurisdictions may be illegal, but not immoral, and but for the fact of being pulled over for a brake light that's out or something, would never raise the suspicions of an LEO or for that matter be doing anything that is a danger to society. I'm not sure I've explained it in a way that makes sense. 

This I understand, and all the cops I know personally would agree with you, although not every officer or every department would, I expect.

I can empathize with the situation of a cop "knowing" that someone has done something really bad and wanting to find a way to prove it, but I have to weigh that against the general freedom of citizens. The fix-it ticket search comes way too close to "if you have nothing to hide, you shouldn't mind "X". It's the kind of thing that created the TSA.

To be fair, the fix-it ticket is just an initiation of contact, and is something you have a level of control over.  The same consensual search could take place if the individual were standing outside their vehicle in a parking lot or something ... if they agree to it.

Cordex: what if the reason the cop is suspicious of you is your NRA Life Member bumper sticker?

Yeah, I do understand that concern.  "Sorry officer, I don't consent to searches."

Also, people who are versed in the law know what they can theoretically refuse, but most folks don't. Add in the whole "If you won't let me invade your privacy for no reason you MUST have something to hide" cop attitude and it can only lead to bad things.

Sure, that's a legitimate fear too, but a cop who acts that way is likely to abuse whatever authority you give them.  Also, refusal isn't just a theoretical option.  Lack of consent doesn't necessarily keep them from searching, but it erects a higher barrier for the cop to clear before anything they find could be used against you.  That makes prosecutors jobs harder, and most prosecutors don't want to take cases that are hard.  Just because people aren't willing to learn about or exercise their rights doesn't mean that cops should be prevented from asking questions.

You might run into a perfect storm of a roid-raging cop and a zealous, wet-behind-the-ears prosecutor that can ruin your day, but they could ruin your day no matter what.

As Ben points out indirectly, most people don't really notice or care when bad people have their rights violated.

Fine, but what "rights" are violated in the example I gave?

Only flaw may be that the officer did not indicate that the driver was free to leave before initiating the conversatiion and search.  I haven't had tie to researcch the issue, but I think that is still required.  And there will be an argument about asking the driver out with no reasonable suspicion, but rather just a hunch or gut feeling.

If you do happen to find out that either of those two things are a problem, let us know.

To everyone else, "I do not consent to a search, officer."

[Strings]

NO, I do not consent to a search of my vehicle or person. Am I free to go? Am I being detained?

[erictank]

NO, I do not consent to a search of my vehicle or person. Am I free to go? Am I being detained?

This.

IMO, they should hand out little cards with this printed on them in Driver's Ed.

[Jamisjockey]

For the record, SAFE ban sucks and I disagree with enforcing it using any technique.
I understand what you're saying, and to a point I agree.

Let me run a scenario past you.  A cop sees a car.  Based on his experience or intuition something gets his attention (say, the occupants appear to furtively avoid eye contact with the officer or something), he thinks there is something fishy.  He notices a minor equipment violation or traffic infraction and stops the vehicle.  Something about the behavior of the occupants or something else readily observable give weight to his suspicion, but there is still nothing concrete.  The cop runs the driver, plate and VIN and everything comes back clean.  When returning the license, registration and fix-it ticket or warning to the window, he asks if the driver would be willing to step out of the car.  The driver agrees and steps out.  The cop asks the driver a few consensual questions and then asks if they would mind if he searched their vehicle.  The driver agrees and calls another unit to come talk to the driver while the vehicle is searched.  During the search, evidence of another crime is found.

Based on this description, did the cop do anything wrong, either constitutionally or in your view of how things should be?  Should any evidence found during the consensual interview or search be ignored?

Yes.  He used coercion of force to get that person to comply.  The gun, uniform, badge, and the manner in which cops "ask" for things is intimidating to the average citizen.   And the idea of a cop going on fishing expeditions based on his "gut" is just disgusting. 

[AZRedhawk44]

Yes.  He used coercion of force to get that person to comply.  The gun, uniform, badge, and the manner in which cops "ask" for things is intimidating to the average citizen.   And the idea of a cop going on fishing expeditions based on his "gut" is just disgusting. 

I agree with you in principle, Jamis... but not in other ways.

Of course, I'm coming at this from a more anarchical than libertarian perspective.

Cops = force.  Pure and simple.  They are the hammers of the State.  People need to realize this, and arm themselves with appropriate self defense tools.  Some types of force-manifested-into-human-form are criminals, and you need to carry a gun or have other physical defense means to overcome them.  Other types of force-manifested-into-human-form are cops and agents of the State.  Getting into violent conflict with them is something you only do with your rifle, and your friends with rifles, and their friends with A-10's.  So you need other self defense tools.

The "average citizen" is a limp fish ripe for the plucking. 

Non-compliance and self preservation takes many forms. 

The cop in this case is still only using words and body language to try to compel behavior.  He hasn't issued unlawful orders and he hasn't displayed pre-emptive assualting force with a tazer/baton/gun.  I've done the same thing when backed into the corner by a bum in a parking lot to try and get what I wanted.  People that behave in aggressive methods with me get two treatments: I walk away if possible, or I prepare my own position immediately.  Walking away from a police officer is somehow interpreted as more threatening to the State (authoritah!) than if I prepare my own position immediately. 

It works, most of the time.  Happens in the animal kingdom quite frequently, too.  It's just naturally how an assertive force attempts to control a situation.

It's the citizen's responsibility to know the boundaries of law enforcement's powers and assert his own dominance in his own realm of rights.  Whether that realm is a libertarian perspective, or an anarchist perspective, the only person looking out for your own rights is yourself.

Rights are like muscles; you must exercise them to keep them fit or they will atrophy and die.

Limp fish have no muscles.

[AmbulanceDriver]

NO, I do not consent to a search of my vehicle or person. Am I free to go? Am I being detained?

http://www.libertynews.com/2013/05/police-officer-blows-his-lid/

Nice little video of a cops reaction to a mere citizen asserting his right against unreasonable search. 

Short version?  Cop asks guy to search his car after traffic stop.  Guy says "Not without a warrant."  Cop has conniption fit.   Lots of NSFW language follows.

[Balog]

Cordex: your example was of a cop who "just knows!!!" that someone is doing something wrong, so he trumps up an excuse to initiate contact, then uses intimidation and the implied threat of force to attempt to violate the 4th Amendment by getting a "consensual" agreement to search. And my example (the cop who "just knows" you're doing something wrong interpreting a refusal to consent as cause) is not some obscure and improbable scenario, it's what they're conditioned to believe.

[Balog]

Isn't it funny how, if a random guy sidles up to a stranger's car with his hand on a gun and "asks" if they "consent" to have sex with him, we'd interpret that as non-consensual. But when the guy has a badge, and the full force of the .gov behind him, then it's totally voluntary and consensual when he asks to search you and your car. Just good solid policework, serving and protecting etc.

Also, I noticed you failed to comment on this.

[Jamisjockey]

http://www.libertynews.com/2013/05/police-officer-blows-his-lid/

Nice little video of a cops reaction to a mere citizen asserting his right against unreasonable search. 

Short version?  Cop asks guy to search his car after traffic stop.  Guy says "Not without a warrant."  Cop has conniption fit.   Lots of NSFW language follows.

Wow. Just wow.

[AZRedhawk44]

http://www.libertynews.com/2013/05/police-officer-blows-his-lid/

Nice little video of a cops reaction to a mere citizen asserting his right against unreasonable search. 

Short version?  Cop asks guy to search his car after traffic stop.  Guy says "Not without a warrant."  Cop has conniption fit.   Lots of NSFW language follows.

That would scare the pizz out of me and I'd be 100% prepared to defend myself there.  Any non-badged person that is armed and reacts like that, I'd have my hand on the pistol already.  Especially with the march back towards the vehicle a second time, obscuring my night vision with that flashlight extended towards me and shaking it like a club.

That's an out of control threat to the public's safety in general, and the motorist's safety specifically.

[cordex]

Yes.  He used coercion of force to get that person to comply.  The gun, uniform, badge, and the manner in which cops "ask" for things is intimidating to the average citizen. 

When I was a teenager I used to agree with this. 

Asking is not using "coercion of force".  A cop can't walk into a business and ask to use their restroom because he's coercing the business owner?  A cop can't ask the waitress for another cup of coffee because he's using threat of force to get her to comply?  A cop can't pull over and ask someone mowing their lawn for directions to an address because that would be intimidating to the average citizen?

The solution is not for cops to wear gags, it is for average citizens to act like adults.

And the idea of a cop going on fishing expeditions based on his "gut" is just disgusting. 

Geeze, I would have thought that you of all people could appreciate a fishing trip.  In my opinion it depends entirely on what they're fishing for and where they go looking for it.  And how they react to minor stuff found when fishing (an awful lot of small quantities of pot get thrown into retention ponds or fields and minor crimes waved away, FYI).

Nice little video of a cops reaction to a mere citizen asserting his right against unreasonable search. 

Bad cops can ruin your day, sho-nuff.  The driver did what he should have and the cop lost it in a downright comical fashion.  But notice that the driver didn't go to jail for the weed he had in his glovebox or the illegal gun he had on his hip or whatever else.

FWIW, that isn't the way a refusal usually goes down, either.  The much more typical response: "Okay, well, have a nice day."

Cordex: your example was of a cop who "just knows!!!" that someone is doing something wrong, so he trumps up an excuse to initiate contact¹, then uses intimidation and the implied threat of force^{citation needed} to attempt to violate the 4th Amendment by getting a "consensual" agreement to search². And my example (the cop who "just knows" you're doing something wrong interpreting a refusal to consent as cause) is not some obscure and improbable scenario, it's what they're conditioned to believe.³

1. An equipment violation is not a trumped up excuse.  It is an infraction in and of itself.  That it serves another purpose as well is not inherently bad.
2. If someone agrees to a search when they could refuse it, they are not having their 4th amendment rights violated any more than someone who freely admits to a crime is having their 5th amendment rights violated..
3. I don't deny there are bad cops who would behave that way.  The police I know were not trained to interpret refusal as cause.  Moreover, even if they did they would have to justify it in court and the prosecutor doesn't want to look stupid.

Also, I noticed you failed to comment on this.

It wasn't really worth commenting on, but okay:

Isn't it funny how, if a random guy sidles up to a stranger's car with his hand on a gun and "asks" if they "consent" to have sex with him, we'd interpret that as non-consensual. But when the guy has a badge, and the full force of the .gov behind him, then it's totally voluntary and consensual when he asks to search you and your car. Just good solid policework, serving and protecting etc.

If a cop sidled up to a stranger's car with his hand on his gun and "asks" if they "consent" to have sex with him, we'd equally interpret that as non-consensual in addition to being conduct unbecoming, abuse of police powers, etc..  That's the apples-to-apples, if you want to make a comparison.

[Jamisjockey]

When I was a teenager I used to agree with this. 

Asking is not using "coercion of force".  A cop can't walk into a business and ask to use their restroom because he's coercing the business owner?  A cop can't ask the waitress for another cup of coffee because he's using threat of force to get her to comply?  A cop can't pull over and ask someone mowing their lawn for directions to an address because that would be intimidating to the average citizen?

The solution is not for cops to wear gags, it is for average citizens to act like adults.Geeze, I would have thought that you of all people could appreciate a fishing trip.  In my opinion it depends entirely on what they're fishing for and where they go looking for it.  And how they react to minor stuff found when fishing (an awful lot of small quantities of pot get thrown into retention ponds or fields and minor crimes waved away, FYI).
Bad cops can ruin your day, sho-nuff.  The driver did what he should have and the cop lost it in a downright comical fashion.  But notice that the driver didn't go to jail for the weed he had in his glovebox or the illegal gun he had on his hip or whatever else.

FWIW, that isn't the way a refusal usually goes down, either.  The much more typical response: "Okay, well, have a nice day."
1. An equipment violation is not a trumped up excuse.  It is an infraction in and of itself.  That it serves another purpose as well is not inherently bad.
2. If someone agrees to a search when they could refuse it, they are not having their 4th amendment rights violated any more than someone who freely admits to a crime is having their 5th amendment rights violated..
3. I don't deny there are bad cops who would behave that way.  The police I know were not trained to interpret refusal as cause.  Moreover, even if they did they would have to justify it in court and the prosecutor doesn't want to look stupid.It wasn't really worth commenting on, but okay:If a cop sidled up to a stranger's car with his hand on his gun and "asks" if they "consent" to have sex with him, we'd equally interpret that as non-consensual in addition to being conduct unbecoming, abuse of police powers, etc..  That's the apples-to-apples, if you want to make a comparison.

While I agree adults should act like adults.  However, Police project and are taught to exude power and authority.  You have no recourse except maybe hopefully in the courts against them, and then it's your word, the now dirty criminal, against theirs, the public servant.  The system is stacked against you from the moment the officer makes contact with you.

As for fishing expeditions, no.  I don't agree.  If the cop doesn't have probable cause to investigate a crime, they shouldn't treat us as criminals.  Asking someone who they just don't like if they can search their car is ridiculous and a slippery slope of abuse of power that we see played out in our country day after day.

No, I don't think we're going to agree on this. 

There is a place for peace officers in a civil society.  Police? Not so much.

[Balog]

Cordex: there are so many possible minor infractions that it is virtually impossible for anyone to operate a motor vehicle without violating something. Saying "Oh well he was breaking the law" is pointless when it's impossible NOT to break the law. And your comparisons are absurd. A cop asking for directions is not in any way comparable to a traffic stop.

If a cop pulls you over you can't just leave. If he asks for your license/regiatration/proof of insurance you have to give them to him. If he asks you to step out of the car you have to, or else he'll taser you and drag you out of the car by force. So in the midst of all this mandatory "Do as I say or else" interaction, there are some things that you can refuse, which may or may not escalate the situation. But regardless, a traffic stop is already an initiation of force, already a compelling of behavior.

That's what you're missing so badly about my example. Claiming there is no coercive element when a cop "asks your permission" and people should just know they can refuse is absurd.

[roo_ster]

"You can get much farther with a kind word and a gun than you can with a kind word alone."
----Al Capone

It most certainly does rise to the level of coercion when a policeman stands behind me, hand on his gun, and insists I do as he says.  It is a threat, plain and simple.  Were I to do the same in return, you can bet he would get mighty upset and start tossing legalisms and profanity. 

Some of them rise to the level of Al Capone, in that they maintain a civil tongue.  Others, not so much.

[geronimotwo]

http://www.libertynews.com/2013/05/police-officer-blows-his-lid/

Nice little video of a cops reaction to a mere citizen asserting his right against unreasonable search. 

Short version?  Cop asks guy to search his car after traffic stop.  Guy says "Not without a warrant."  Cop has conniption fit.   Lots of NSFW language follows.

what would happen if the PO din't know he was being filmed........

[AZRedhawk44]

"You can get much farther with a kind word and a gun than you can with a kind word alone."
----Al Capone

It most certainly does rise to the level of coercion when a policeman stands behind me, hand on his gun, and insists I do as he says. 

"Do what he says" in this case means granting permission to search the vehicle.  He can go ahead and search the vehicle if he wants to flex force in front of me.  I'll yield the territory of my vehicle rather than get into a force-on-force conflict with the State.

I'm not going to get into a gunfight over a police officer searching my vehicle.

But I'm not going to grant PERMISSION for him to do it.  He wants to do it sans warrant, I'm going to take his badge and paycheck away next month.


How can he "insist" that you grant him permission?

[cordex]

Cordex: there are so many possible minor infractions that it is virtually impossible for anyone to operate a motor vehicle without violating something. Saying "Oh well he was breaking the law" is pointless when it's impossible NOT to break the law.

Why does that matter?  Yeah, you and I break traffic laws all the time.  Most of the time cops don't care.  Are you arguing that the violations shouldn't be violations?  Or that police shouldn't enforce them?  Or that they should be enforced, but cops should ignore anything else they see?

And your comparisons are absurd. A cop asking for directions is not in any way comparable to a traffic stop.

As absurd as comparing someone open carrying while aggressively trolling for sexual favors and a cop asking if he can look in your trunk?

If a cop pulls you over you can't just leave. If he asks for your license/regiatration/proof of insurance you have to give them to him. If he asks you to step out of the car you have to, or else he'll taser you and drag you out of the car by force. So in the midst of all this mandatory "Do as I say or else" interaction, there are some things that you can refuse, which may or may not escalate the situation. But regardless, a traffic stop is already an initiation of force, already a compelling of behavior.

Okay ... so my answer is education.  Tell people not to talk to cops more than they are required.  Not to give them permission.  Make officers justify their actions in the absence of your verbal approval.

Yours is what?  Treat people as though they are incapable of rational thought?  Nerf the justice system to protect people from themselves?  What specifically?

That's what you're missing so badly about my example. Claiming there is no coercive element when a cop "asks your permission" and people should just know they can refuse is absurd.

There are coercive elements to a traffic stop, but the burden of maintaining your 4th amendment rights falls on you, just as the burden of maintaining your 5th amendment rights does.

"You can get much farther with a kind word and a gun than you can with a kind word alone."
----Al Capone

Capone was a real bad apple.  Interesting that they eventually got him on some piddly tax evasion charge, isn't it?  Kind of like pulling him over for a tail-light out or something.

It most certainly does rise to the level of coercion when a policeman stands behind me, hand on his gun, and insists I do as he says.  It is a threat, plain and simple.  Were I to do the same in return, you can bet he would get mighty upset and start tossing legalisms and profanity.

Right or wrong, police are given certain authority that you and I don't have.  They are able to coerce you to do some things.  Other things they can merely ask your permission.  You can live your life being bullied by people of all walks of life or you can stand up for yourself when and where appropriate.  Your call.  The vast majority of time when I deal with police I'm just as armed as they are.  I've had good and bad experiences with officers.  My answer is to know what cops are allowed to do and what they need permission to do.  Never give them permission (especially if you have something to hide).  What's yours?

Some of them rise to the level of Al Capone, in that they maintain a civil tongue.  Others, not so much.

Bad and negligent cops exist and they can screw up your life pretty badly.

I'm not going to get into a gunfight over a police officer searching my vehicle.

But I'm not going to grant PERMISSION for him to do it.  He wants to do it sans warrant, I'm going to take his badge and paycheck away next month.


How can he "insist" that you grant him permission?

This.

[Jamisjockey]

Education won't cure bullying.  Which is the primary tool of the cop.  Hand on gun, leading or misleading language, lies, and authority. 

[cordex]

Education won't cure bullying.  Which is the primary tool of the cop.  Hand on gun, leading or misleading language, lies, and authority. 

What will cure bullying?

[Jamisjockey]

What will cure bullying?

In this case, the bully should have restrictions on what they should be able to do and say.  I have no idea why a reasonable person would accept a"gut" feeling as a reasonable reason to treat a citizen as a criminal.
The cop has all the tools of intimidation, why should he be allowed to misapply them when no real crime has been obviously committed?

[Balog]

Why does that matter?  Yeah, you and I break traffic laws all the time.  Most of the time cops don't care.  Are you arguing that the violations shouldn't be violations?  Or that police shouldn't enforce them?  Or that they should be enforced, but cops should ignore anything else they see?

It's impossible to be free of unreasonable searches and seizures when there are so many (selectively enforced) laws that everyone everywhere at all times is doing something that gives "probable cause." Do you honestly not see how "You're constantly in violation of the law, which justifies us searching you whenever the hell we feel like it" is directly contradictory to "We're safeguarded from unreasonable searches because they have to show good cause"? Also, you seem to be in favor of selective enforcement here. Are you happy to have everyone be a de facto criminal and the cops only punish the people they feel deserve it?

As absurd as comparing someone open carrying while aggressively trolling for sexual favors and a cop asking if he can look in your trunk?

You're pretty aggressively missing the point, a common flaw in cop fetishists. You're claiming that a man with a gun "asking" you to do X (in a situation where refusal to comply with his requests to do Y and Z will lead to him using force against you) is not coercive, and that a search granted under those circumstances is consensual. The point of the example is how ridiculous your claim is.

Okay ... so my answer is education.  Tell people not to talk to cops more than they are required.  Not to give them permission.  Make officers justify their actions in the absence of your verbal approval.

If you need a legal education to avoid having a cop violate your rights I’d say that’s a problem with the system. It is your own responsibility to make sure your rights aren’t violated as much as possible. It’s also your responsibility to make sure the grocery store isn’t over charging you for sales tax. If you found out that Local Business was systematically overcharging as a matter of course, would your response be “Good for them, and if folks are too stupid to double check the local tax code for the area to make sure that the sales tax charged is accurate it’s their own damn fault.”?

Yours is what?  Treat people as though they are incapable of rational thought?  Nerf the justice system to protect people from themselves?  What specifically?There are coercive elements to a traffic stop, but the burden of maintaining your 4th amendment rights falls on you, just as the burden of maintaining your 5th amendment rights does.

To not have the agents of the state use coercion and the implicit threat of force to violate the 4th Amendment? To stop the progress towards a society where everyone is a criminal and cops just enforce the laws against folks they feel have it coming? To make the default training not “Lie, threaten, and coerce the people you’re supposed to be serving into giving up their rights as a matter of course”?

[cassandra and sara's daddy]

everyone everywhere at all times is doing something that gives "probable cause."

you live in a different world than i do.  do share some of these experiences of yours.  key word yours