Dated 12 Jan 2024.
And then go directly to jail. Don’t pass “go” don’t collect $200.
If a cop wants to arrest you, you’re getting arrested. Consenting to a search isn’t going to prevent you from getting arrested. Politely but clearly refusing consent to a search establishes a basis for your defense. Prosecutors don’t have unlimited resources, and they’re more likely to pursue the case that doesn’t have the problematic search than the one that does.
Doesn’t this objection apply to basically all anti-money laundering (AML) legislation?
Yeah, in most of the civil forfeiture cases, they have some probable cause like this.
Mind you, that doesnt make it right.
Right, I assume some poor dude said “sure”, and they found a bunch of cash, found out he had been arrested ten years ago for possessing pot, and he had no good reason for the cash- thus forfeit.
Not at all.
AML laws do not ask where or why you got the money. They just require that when you want to deposit - or purchase- over $10000, you fill out a nice little form= CTR. And say, if you just got $12000 from selling your old car, and deposited it the bank, and they did the CTR- nothing would come of it.No one looks at a CTR when it is rcvd by FinCEN. Just deposit that windfall. MAYBE, if you get audited, the auditor will have a note you filed that CTR and will ask about the $ if you didnt report it (and selling your old car may well be nontaxable, YMMV). The CTR is filed no matter what the source is.
Trying to deliberately get around filling that CTR is structuring- which is a crime.
The problem, at least in the publicized miscarriages of justice, is that “no good reason” is not an element of the forfeiture. The money exists, therefore it is confiscated.
I’ve always understood that they can’t make you wait any longer than it takes to process the original justification for the traffic stop. The SCOTUS majority opinion appears to back that up:
A cop may try to drag things out by asking you lots of questions unrelated to your stop - where are you coming from/headed, what’s in your trunk, etc. - and you have a fifth-amendment right to not answer any of those questions, and to insist that he get on with carrying out his original reason for the stop. Likewise with any questions the cop asks you after giving you your ticket (or if he’s reasonably nice, a verbal warning). As you’ve stated, the thing to do is tell him you’re not answering any questions, and ask if you’re free to go. If he says yes, then go. If he says no, then it’s officially a detention, and he better have reasonable articulable suspicion for it. If he wants to wait for a K9 unit, then he needs to already have a reason to suspect that you’ve got drugs on you or on your car.
Asserting your constitutional rights is never probable cause. They can’t arrest you for remaining silent, they can’t arrest you for refusing to allow a search (unless you physically obstruct them when they claim they have the authority to conduct a search), and they can’t use your refusal to allow a search as justification for a search. As long as you withhold permission, you may have a basis for challenging the outcome of a search in court. If anything is found or seized in a search that’s later found to be unjustified, it’s fruit of the poison tree: it can’t be used as evidence against you, and (I suspect) can’t be forfeited.
Quote all the cases you want. Have you ever watched OnPatrol?
They do it regularly.
They get away with it. The perps are rarely gonna contest the decision the cops make on the side of the road.
If 5 people take it all the way to supreme Court to get justification that’s not what happens to John Q. Public, on a given Tuesday night. They will be searched. If they refuse they will be in the backseat of the patrol car heading to lock up. Having to pay to get out. Upsetting their families, possibly not getting to work tomorrow, losing the job. They don’t have money to hire a high powered attorney just to make a point. When all they had to do was give consent to the search. If they have something in there to hide or is illegal, well they have bigger problems. Either way it’s a bad idea to argue with police, on that given Tuesday night.
[Moderating]
A reminder that we’re in Factual Questions. Please have cites for your statements. And no, an entertainment television show is not a cite.
Oh. Sorry. Wasn’t paying attention to the forum.
The point of money laundering is to either (a) get sums of cash into the banking system or (b) create plausible pedigrees for cash or bank accounts so it appears to be legitimate income.
Laws like the one in British Columbia simply require someone with an excessive lifestyle to explain on demand where their money to finance their lifestyle came from, should the authorities have reasonable grounds to believe it was not earned legitimately. IIRC Canadian income tax law already includes this provision too - if your income tax return does not account for the lifestyle you are living, they can do a net worth assessment and demand you explain any discrepancies. And of course, proceeds of crime can be seized and then forfeit after a conviction.
Carrying large sums of cash around does not amount to money laundering… although it is obviously suspicious. (If your excuse, for example, is “I just sold my car” there will be a record of your car, the person registering it in theri name, it should be reasonably valued close to what you’re carrying, etc.). But!!! You do not have to explain. (But they can steal it anyway) As I mentioned earlier, many of the police instead target people, preferrably out of state, who look too lower-class (based on car) to use banks and credit cards, so are probably carrying cash to manage their trip. If they only net $500, well - that works for them.
The best advice has already been stated - clearly but politely tell the officer you do not consent to a search.
In 2020, the best candidate the Republicans could come up with for governor of this state was the self-described “police chief” of a town with a population of 1,000, where he was the only police officer. It came out during the campaign that, between when the “department” acquired a K9 in 2018 and when said cop went on leave to run for office, the dog somehow managed to find drugs every single time it was deployed.
In the meantime, the city realized they were doing just fine without the chief, disbanded the department, and contracted the county sheriff to handle law enforcement.
From that article:
Some handlers jokingly refer to their K-9 partners as “probable cause on four legs.”
Great.
And if you like, “Sorry officer, I have a buddy/relative/whatever who is a lawyer, and they told me to never consent to a search”. Look apologetic, and understanding.
Yes they can and they do it all the time by calling it it obstruction. The fact that it is not obstruction just means that they can add on the charge of resisting arrest and the obstruction charge gets dropped after a few hours in jail.
So, to those of you saying things like “If you don’t agree to a search, they will search anyway…” or “If you exercise your right to remain silent, they’ll just arrest you anyway…”
Is your suggestion to… always consent to a search and always answer questions? I don’t know of a single attorney who would recommend such a course of action. Not the least of which because, if the police want to arrest you for no reason… they’ll arrest you for no reason and whatever lie they were going to use to justify an unlawful search or arrest, they’ll just use anyway. And that’s at best. At worst, you will consent to or say something that actually does justify an arrest, however flimsy.
If, in a given encounter with a given police officer, the rules don’t matter to that particular officer at that particular time, then ok… the rules don’t matter. That doesn’t mean there are magic words you can say to escape coming under the thumb of said officer. But it also doesn’t mean that whatever you say couldn’t possibly make the situation any worse. It absolutely can.
The way I would explain it is this:
Don’t consent to the search.
They will search you / your car / etc anyway.
Refusing consent does not stop the search.
Refusing consent establishes grounds for the results of the search to be excluded later.
You cannot stop the officer from being a jerk who wastes your time because he can.
But you can stop him from using anything he finds later.
It’s not great. But given the state of American policing, it’s the best you can do right now.
One thing I’ve learned by watching videos is be very precise when answering.
“I do not consent to any searches.”
“I am invoking my 5th Amendment right to not answer your questions.”
“Am I free to go?”
“Give me an attorney.”
As for obstruction, know your state’s definition. In my state, after I invoke the 5th Amendment, if they still try the obstruction crap I will ask point blank, “Have I used force, the threat of force or an obstacle at any time as per 18-8-102?” It may not stop me from getting arrested but it should add some 0’s to the settlement check.
If I’m feeling onery when this dialog comes up
“We have a few questions.”
“I am invoking my 5th Amendment right to not answer your questions. Am I free to go?”
We just want some help. Why are you refusing to help us."
“Am I free to go.”
“I need your name for our records.”
“What crime have I committed or do you reasonably suspect me of committing.”
“We need to put your name in our report.”
I may ask the cop point blank, “So you want me to answer your questions yet you refuse to answer any of mine? Am I free to go?”
Remember, there is an order of operations here.
When you are just stopped by the police (traffic stop or a Terry stop) you are not under arrest. The police are allowed to question you and you have no right to an attorney (as in one provided by the state).
The best you can do is refuse any searches and tell the police you’d rather not discuss your day. If they ask you how fast you were driving do not answer. Be polite. Give them your name and ID if requested.
At some point you can ask if you are under arrest. If they say no, you can ask if you are free to go. If they say yes, then leave (chances are this is when they will arrest you if they think you have done something wrong). If they say no, ask why not.
Once arrested, you have rights. Do not answer any questions, assert your right to remain silent (which you must explicitly assert…don’t just stay silent…see Berghuis v. Thompkins) and ask for an attorney.
It seems the police do not need to read you your Miranda rights (see Vega v. Tekoh). Don’t wait for that. You still have rights even if not read to you.
And be very explicit. A person in Louisiana said, “give me a lawyer dog” and the Louisiana Supreme Court said that was not a sufficient request for an attorney.
If we’re endeavoring to be precisely factually correct, then yes, they can charge you with obstruction, resisting, and anything else they want to. But the factually correct answer is that the charges won’t stick if you haven’t actually obstructed or resisted, and standing on you fifth-amendment right to remain silent does not constitute obstruction.