But seriously I understand it’s important for you to maintain your rights against unreasonable searches and seizures but you seem to be terrified of the idea of a cop looking through your vehicle or somehow forcing you to confess to something. Do you have anything in your car that the cops should be searching for? Do you randomly confess to crimes you had nothing to do with if someone asks you to? How hard is it to say “I want a lawyer?” that you feel you need to preemptively do it?
While a funny joke, what would happen in reality is that they would arrest him for speeding anyways on the word of the first officer, then tow the car, and as part of the inventory search done as part of the towing process, discover the dead body.
(At least in California, at least, state law may vary)
Here’s an interesting thought. As I understand it (and I may be totally wrong since I don’t know that much legal details) it is possible to sign away certain rights to another person, which you can’t exercise unless the other person reverts control of such a right to you.
So, I wonder if it would be possible to legally sign away your right to consent to searches, so that you can’t legally consent, the lawyer has to be the one to give consent? Basically the way a child or mentally handicapped person wouldn’t be capable of giving consent. Sign your right over to someone like your lawyer in the same way as a legal guardian for someone not competent?
Although it is not the exact same situation as has been discussed here (car stops) the Supreme Court has ruled in Maryland v Shatzer investigators can go back and attempt to speak with a suspect after a 14 day break from when he invoked his Miranda rights. Shatzer specifically dealt with a case in which the suspect was in custody the entire time* not on a car stop. It does show that the court believes that you can change your mind and waive your rights after invoking them as long as there is a sufficient break in time.
*He was in prison on another unrelated charge when allegations he molested his son came up.
There’s a lot of administrative work and state law that goes into requiring and regulating insurance. There isn’t any similar framework for managing random declarations of various ill-understood legal points from various citizens, and any such framework would require new laws and many more people (because they’re going to have to interpret all of the various ‘I declares’), as well as a lot more data than ‘insurance policy with X effective DATE’ for them to delve through. Beyond that, insurance is tied to your car and checked on a traffic stop, and so can be easily pulled up before a traffic stop. If police are called because someone says you’re trespassing or shoplifted or got in a bar fight, they don’t have a positive ID on you to start with, and typically go to the scene and ask questions outside of their car - so don’t have the convenient insurance info. What you want would require new laws, new hires of civil servants, and a complete change in standard police procedure.
Aside from the huge expense and difficulty, there’s no motivation for a police force to WANT to do this, and nothing for non-police to really rally around. The police generally want you to waive your rights about search and answering questions, and people in general would either precieve this as coddling criminals or as spending a lot of money to do what you can do by a simple verbal declaration whenever you interact with police.
[quote=“drewder, post:40, topic:746176”]
Sometimes consenting to a search can be to your advantage. (joke about confessing multiple felonies to a cop, then denying it when the captain comes over)]
The joke is amusing as a joke, but posting it in a thread where people have a shaky grasp of the law like it’s fact is not really a good idea. If you confess multiple felonies to a cop, the captain is not going to presume that the cop is lying when you deny them later, he’s going to assume you’re either a wiseass or realize how badly you screwed up. I don’t think any cop is going to respond to a murder confession by walking away from a murderer in an unsecured vehicle to call for backup, he’s going to draw his gun and search/restrain you on the spot. And with dash and body cams becoming more and more popular for police, it’s pretty likely that they have your confession recorded.
Irrevocable power of atttorney - you give someone the power to exercise certain rights that you would otherwise have yourself, typically the rights to control and deal with certain property. Usually in the context of a larger commercial arrangement, where the subject property is being used to secure your performance of certain obligations.
There’s a limit to what you can do with this. On the grounds of public policy you couldn’t, for example, assign to another your right to vote, or to contract marriage. And, although I’m not aware of any case, I seriously doubt that the courts would accept as valid an attempt to assign to another the power to exercise your Miranda rights, consent to searches, etc.
Um - wait a minute now. In all US states, when you get a driver’s license, you provide implied consent to a field sobriety test. So how come in this situation you are required to choose in advance (preemptively ?)
You’re not. Notwithstanding the fact that your consent is implied, you are still free to refuse a field sobriety test. You just don’t get to keep your license. Anyway, you don’t provide implied consent by obtaining a driver’s license. You provide it by operating a motor vehicle. So you are renewing your consent when you get behind the wheel, not consenting in advance when you apply for a license.
According to television, if you’re being interrogated and ask to have your lawyer present, the police can’t influence you into rescinding your desire to have a lawyer. In some TV shows, the police can still say general things at you, but not ask any more questions. I’ve seen other TV shows where the defense lawyer successfully argues that anything after a lawyer was requested but before the lawyer arrived should be inadmissible.
Now I have no idea if this point is at all accurate in real life, but the concept behind it is that once someone has asked for a lawyer, they deserve legal representation, and we’re not going to allow the police to influence or manipulate the person until the lawyer is there. It’s a rule to protect the defendant from changing his mind due to effective police work.
It seems to me that what am77494 really wants is a analogous protection from changing his own mind about consenting to search. The whole business about a letter just seems like the first way he thought of to implement that protection. It seems like a real screwy ineffective way to implement such a concept, personally.
I don’t see why it’s a protection we need to offer at all, but it doesn’t seem completely unheard of either, at least not on police tv shows.
So far as that goes, television is correct. A suspect’s invocation of the right to counsel must be “scrupulously honored,” which is not necessarily true of the invocation of the right to silence. That is, a suspect who invokes his right to remain silent can be asked if he still wishes to remain silent 12 hours later. A suspect who invokes his right to speak to an attorney may not be questioned again unless he has had the opportunity to consult one, unless he initiates further dialogue.
So in theory, we could live in a world where the courts had ruled that refusing to consent to a search must be “scrupulously honored”, and we wouldn’t need am77494’s letters at all, right?
It’s not a right I particularly want to see created, but if we’re going to be creating new rights for people, I’d rather they be applied universally than only granted to people who have enough time to write letters.
We do, sort of. They can’t hold you for a week while they wait for you to consent or anything. But searches are of course not exactly analogous to questioning.
Consent is (perhaps surprisingly) a relatively small area of dispute in determining whether a search was permissible. A police officer can search a car regardless of consent if probable cause exists to do so. A police officer can search a home if someone who lives there or appears to live there consents, even (particularly) if the suspect is not present.
Is it possible to give an irrevocable power of attorney? Are there ANY irrevocable acts such as that? (presuming you remain of sound mind an body?) The only things I can think of are contracts - quid pro quo - i.e. I allow you to attempt to sell my house for me, for your commission. One way acts have no meaning in law, is that not the case?
The point that has been beaten down in previous posts - just because you declare X does not mean you can never change your mind. Your declaration has no legal effect. Your most recent choice applies.
The fact that you have been excessively zealous about a point of view may call into question a police officer’s claim, against your denial, that you consented… especially if you deny early and often. (Picking up another thread, if you don’t decide to speak up until 3 weeks later - “hey wait a minute, I didn’t consent” - it may be a bit late. Your failure to protest immediately may be a relevant data point.
(OTOH, the prosecution could construe your behavior as a trick - “He consented and now claims he did not, in a deliberate effort to get the inevitably discoverable evidence disqualified”)
Why shouldn’t a police officer be able to ask you more than once? He can ASK you anything (until you are arrested and ask for a lawyer). What you do or do not answer is relevant. Of course, if you say “no” twice he’d be pretty stupid to ask a third time unless he was stupid (possible) or thinks you are wavering. Part of the touchy legal situation is what constituted “detained” for the purposes of questioning, Miranda, searching, etc. (IIRC there was a recent case tossed because the cop delayed a long time writing a ticket to wait for the sniffer dog. Once the time went beyond what was reasonable for a simple traffic ticket, the person was effectively arrested and certain rights applied. Although note, the judge did not rate a failure rate of 25% as indicating the sniffer dog’s indication should be tossed as unreliable for probable cause. )
If a police officer is determined to lie, or plant evidence, or shoot you and claim your were reaching for what looked like a gun or failed to put your hands up in time, or claim you were resisting arrest… I believe the legal term for this is “screwed”. (isn’t there a case currently where a man “assaulted” a police officer’s fist with his face?) There’s the saying about you can beat the rap but not the ride. Unless there is blatant evidence of lying or police misconduct, odds are anything will be put down as “misunderstanding” and you will have an arrest record and charges suspended…
As for “my lawyer” - again, I thought this was beaten to death in another thread. IIRC, technically, your lawyer is your lawyer for the case at hand. You have to specifically ask for that lawyer when the police step in. If the police want to ask you about another case, totally unrelated to the first, then you have to ask for a lawyer again. IANAL - but I assume at the time of arrest, they are asking you about two crimes, you ask for a lawyer, you are covered for both.
The case that set this, the guy was waiting for trial in jail charged with A, and they wanted to ask about B, a totally unrelated case, several weeks after the initial arrest and interrogation. The court ruled they had no obligation to involve the lawyer for A.
Another case in the news, the guy was in court for C, while on a break the police approached him and demanded he pose for a photo related to investigating D; his lawyer (for C) jumps in front, demanding they stop, saying she’s his lawyer; they ask her to get out of the way, she refuses, they arrest her for obstruction; (all live in front of numerous smartphones recording it) charges are dropped. Several problems - he never said she was his lawyer (does he have to, she’s right there saying so). The police claimed this was a short detain like a Terry stop - but to frisk for possible weapons they believe he might have? Inside a court building?? Can police order you to pose like a mugshot during a terry stop? (probably not) This was happening during a break in a trial - could this be construed as intimidation - if you beat this, we’ll find something else to get you for? Plenty of subtle complexities, which is why judges earn their pay.
Also - “looking for burning leave…may I come inside and look around?” Huh? Only a few types of leaves are burned indoors. That sounds like a stretch to me.
If you immediately say to the police officer “I refuse to let you search my car”… The officer needs reasonable grounds to search without your consent. I doubt that you acting stupid is reasonable grounds. However, I’m sure the less honest can manufacture any probably cause. (“appeared intoxicated, I smelled alcohol, acted suspicious” etc. )
Power of attorney laws vary among jurisdictions, but in general a power of attorney (irrevocable or not) does not prohibit you from doing anything; it just allows someone else to do things for you. You have concurrent authority to do those things and can overrule the POA for the most part.
You only lose the power to do things for yourself if you are adjudicated incompetent and a guardian is appointed.
I’m trying to imagine a situation where a power of attorney could NOT be revoked. Is this possible?
Thank you folks for great answers and for helping me understand some of the nuances.
Personally, I am looking forward to driverless cars and the baffled looks a cop will have when he stops one:grinning:
. I would totally pay for the car to see the look from the backseat.
Well, there are analogous situations in commercial arrangements, though they may not be called “powers of attorney”. For example if you pledge land or property as security for a loan or other obligation, typically that will give the other party the right (in certain circumstances) to sell your land or property in order to recover the loan/compensate himself for your breach of obligation. You can’t (before repaying the loan or performing the obligation) revoke his authority to do that. Likewise when money is paid into an escrow account, you authorise the escrow agent to do certain things in certain events, and you typically cannot revoke that authority - at least, not unilaterally.
So, yeah, it is possible to assign away some of your rights in such a way that you cannot recover them, or at any rate cannot recover them in certain circumstances. But these are strictly limited and usually temporary, and they are nearly always (or even always always?) characterised byh somebody else being able to exercise the right on your behalf. I seriously doubt, on public policy grounds, that the courts would accept that the right to consent to a search can be assigned in this way, still less renounced in such a way that neither you nor anybody else can exercise it.
Why would he be baffled? Presumably if there are driverless cars on the roads, the police will be aware of this.
Plus, it’s entirely possible that you will still have alcohol offences associated with driverless cars. In many jurisdictions the offence is being “drunk in charge” of a motor vehicle. You can be in charge of a car without driving it.
I’m no lawyer, but my impression is that such a law was an answer to the drunk driver quickly switching to a non-driving seat and saying “See, I’m not driving drunk. I don’t know where the driver went, he took off when you weren’t looking.”
But if the law’s still on the books, it would certainly be applicable. Maybe. If the driving automation is considered the driver-of-record, you theoretically should be able to do or be anything that a passenger in a human-operated car can do or be.
And if the driving automation isn’t the driver-of-record, driverless cars don’t provide any practical advantage over piloting yourself, since you’ll be on the hook for anything that goes wrong anyway. You’re the driver, even if the car is driving itself, so rules like “no cell phone use” or “no driving distracted” will still apply.