Can you rescind permission to search? “Hey, man, you’re taking way to long and breaking stuff; I no longer give you voluntary permission to search my truck.”
IANAL, but yes, you can always take back your voluntary consent to search. And doing so shouldn’t become probable cause or reasonable suspicion.
Here’s my previous thread including that very question. The consensus was that yes, you can rescind permission, and they have to respect that, unless they’ve found something that turns it into a probable cause search - so if they’ve found the machete with blood and hair on it, next to a blood soaked duffle bag, you’re going to have a very tough time preventing them from opening the duffle.
Yes, you can revoke a search, the same as 5th AM waiver, you can waive, then revoke the waiver. One of the first cases concerning consent was the 1973 Bustamonte case.
The consent must be knowingly and voluntarily given. An officer need not inform the driver he can refuse the search, but if they are not informed, it may/possibly, be considered coercion, etc. on the officer’s part.
If consent is revoked, it is no longer “voluntarily given”.
Good to know. As you can imagine, stop and search stories are quite common in the Burner* community. While I’ve not heard anything as extreme as TD’s experience, there are many tales about a long search turning up anything and the cops driving off leaving them to restow their gear. Since most Burners practice what we call tetris-packing this takes a long time as well. As a consequence, almost no one give consent and we’re back to the how long to wait for the dogs to show up question.
*Participants in Burning Man.
That’s a lot of questions and I’ll do my best to answer them, sort of in the order you asked them.
If the screening was biased, it was biased against people who arrive from NY by bus as opposed to people who arrived from anywhere else. If intelligence, experience and common sense tell you that NY is where he drugs are coming from, that’s where you put your effort. Why waste time and resources in an effort to give the appearance of being unbiased?
Bias is defined as “prejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair.” We weren’t prejudging anyone and I don’t see how what we did could be considered “unfair”. Maybe its just semantics but bias has a certain negative implication, especially when applied to law enforcement.
This was not a scientific study so there was no systematic effort to check people who weren’t displaying the cues. Determining the scientific validity of what we were doing was not our goal. As I mentioned, sometimes we did check people who weren’t displaying cues just… because. Maybe the bus was mostly empty and we didn’t note anyone that drew our attention. Or maybe it was a slow night and we didn’t have any arrests. This weren’t truly random stops in that we didn’t spin a wheel to determine who we approached. More like, “How about him?” “O.K. Why not?”
We had no way of knowing ahead of time how tickets were purchased, so credit card versus cash had nothing to do with it. Sometimes the person had their ticket receipts with them. If they showed that they had been in NY for less than a couple of hours, our suspicion would be raised. Broken luggage was never an indicator. The vast majority of the people we encountered didn’t have “luggage” at all. Usually, it was just a plastic shopping bag(s) or nothing at all. Soft backpacks weren’t uncommon but I can’t say that we ever noticed those being broken at an unusual rate. This was primarily a day trip route and it was a bit unusual to have someone with suitcases stored underneath in the cargo area.
Racial neutrality wasn’t our goal. Catching drug and gun runners was. We were keying on behaviors, not skin color. You seem to be a bit hung up on the randomness of who we talked to. This was never intended to be a random process. As a matter of fact, it was designed to not be random. The racial make-up of people who travelled to NY in cars was of no concern to us. We were talking to people who took the bus. These were the “relevant travelers”. As a matter of fact, the racial make-up of the people who took the bus was also not a concern or ours. It’s a predominately minority city (24% white the last I saw). If the bus travelers were representative of the entire community then one would expect the passengers to also be ¾ minorities. We never did a statistical analysis but my best guess would be the ridership was closer to 90% minority. In the end, it doesn’t matter.
Yes, nervousness was factor in determining whether or not to ask for permission to search. But it wouldn’t be the sole factor unless the person was coming out of their skin. Some people tend to be nervous when encountering the police even if they have done nothing wrong. With experience you can usually filter the Nervous Nellie type out. However, nervous behavior combined with inconsistent statements (and in, some cases, a known record of criminal behavior) is a different matter. This begins to reach the level of RAS. Which, by the way, we did NOT need to approach, talk to or request permission to search. As far as I know, even today RAS is required only for consent for motor vehicles.
I can’t cite a particular case but the courts have held that plainclothes officers are less intimidating than a uniformed officer when it comes to these types encounters. The question becomes, “Did the person have reason to believe that they were not free to leave?” Factors impacting that belief might include number of officers, uniforms, weapons visible, demeanor of officers, location of encounter (was the officer blocking the person’s path or were they taken to a secure area for the encounter or search?). Our tactics and whole approach to these encounters was to minimize the person’s belief that they were being detained. We didn’t want to lose evidence at a suppression hearing. As a reminder, the person also signed a form indicating that they understood they could refuse consent or withdraw it at any time.
As to where they were coming from – if they said something consistent NY travel, that’s O.K. Maybe ask if they made any stops. But if they said they were coming from DC, something in the opposite direction or a local route, more questions would follow. “”Do you have your ticket/receipt?” etc. If there was a reasonable explanation, fine. If the lies started to pile up we would request consent. In extreme cases we would request a search warrant but they were very rare.
Regarding unwatched baggage - the question wasn’t, “It is in any way remotely, humanly possible that someone slipped something in your bag”? The answer would be “Of course, anything is possible.” Before we would ask that sort of “out” question we already were highly suspicious. I don’t know about you but if I were traveling alone on a bus, I’d be damn sure that I didn’t leave my bag unintended or allow anyone to be close enough to putting stuff into it. Its common “street” sense. If someone says that they don’t know exactly what is in their bag, you have to wonder. Not once did we encounter an unwitting mule. Who is going to put their valuable drugs in the bag of someone else without their knowledge and risk not getting them back? That’s T.V. stuff, not real life.
Yes. I know that minorities are more likely to be poor than whites.
I don’t really want to get into a debate about blacks being shot by white cops. There are plenty of other threads for that. Maybe blacks do have a reason to be nervous when contacted by police. To repeat, nervousness (alone) would not lead us to request consent. We had many blacks tell us, in no uncertain terms, “No. Thank you”. And they were free to go. From my point of view, there is no lack of blacks (or whites) who feel free to tell the police where to get off. Hey, its their right to do so as long as they are not interfering with my duties or getting physical.
Sorry, but I fail to see how we discriminated. Short of putting up a booth with a sign that said “Come talk to me if you want to” I don’t see how we could have been any less coercive. We had no control of the demographics of the city population or bus ridership. The facts were these: the city was populated by a poor minority population. As a result of that poverty, some turned to drug dealing. A cheap source of drugs was a two hour bus ride away. No worries about getting stopped by the Troopers, potentially losing a car to forfeiture. Hell, no need to own a car or have a valid license at all. Even relatively large amounts of drugs can be carried in a sneaker box or backpack. In short, the bus was an inexpensive and relatively safe way to move the drugs. In response and within the law, we sought to counter that. Just because our arrests didn’t match the city’s demographics doesn’t lead to the logical conclusion that we were biased or discriminating. The interdiction program was only one facet of drug enforcement. If that’s all we did, I could see your argument. But we also did things like buy/busts, wiretaps and undercover operations. Like it or not, most of our defendants ended up being minority. In drug work you go where the evidence and informants take you, whether or not it is politically correct. I gather that you disagree. Please show me how were biased in our actions.
Thanks MikeF for the thoughtful response. One thing I want to make clear is that don’t think you or your colleagues had any racist motives or intention to discriminate on the basis of race. I just think that your methods ultimately led to a racist result, whether you intended that or not. As a bonus, the selection process also enables outright racism, so if other officers using the same tools want to be racist, these tools enable them to let their white supremacist flags fly.
If people coming from New York are the target, you could also have pursued a proportionally similar number of people who came from New York by car (e.g., more white people). I recognize that it takes more resources to tail cars from New York and pursue voluntary encounters or pretextual stops with drivers, but the result is that you were screening poor black people and not richer white people. In the end, more poor black people than richer white people would get arrested for this crime even if they were offending at the same rates. This is an example of systemic racism. This is a harsh result when we use arrest and conviction rates based on biased law enforcement tools to justify policing the minority community more heavily, perpetuating the cycle.
I’m asking that you examine whether what you were doing was really as fair as you thought it was at the time.
The tools you were using to select candidates were unreliable and could be used to justify an encounter with almost anyone. If there is a racist cop anywhere in America using this training, they are using it to justify harassing black people. That may not be what you were doing but you can’t speak for your colleagues everywhere. New York’s stop and frisk program demonstrates how similar methofs were used disproportionately against black and Hispanic people.
To be clear, I don’t think the process should be random. I think it should target people based on reliable indicators who may be gun or drug runners. You said you weren’t trying to assess the reliability of your screening criteria. The problem is that no one assesses it very well and the screening criteria are disproportionately used to justify encounters with poor black people than others. The result is imprisoning poor black people for more crimes than similarly situated white people even though black and white people use drugs at similar rates.
Cars can’t carry drugs or guns? What makes you think that someone driving to New York isn’t bringing back guns or drugs? Why aren’t people who go back and forth in cars also “relevant travelers?”
The factors police rely on to justify searches (and presumably your voluntary encounters) describe nearly 100% of the population. As New York’s experience with stop and frisk show, they are disproportionately used to select minorities. This is a racist result.
Also, “filtering out the Nervous Nellie” is another source of potential bias, particularly if officers are more likely to “filter out” white people than black people.
Again, black people in America are less likely to feel free to leave if a cop doesn’t want them to because they are still more likely to suffer violence from police officers than white people even when they are unarmed. The textbook example of “voluntary encounter” almost never actually feels voluntary to the person approached, and it feels less voluntary to black people. Courts have accepted a lot of bullshit assertions over the years and some of that bullshit might just be that plain clothes officers are less intimidating than uniformed officers; I have no evidence one way or the other and I am sincerely curious if this is true. I don’t doubt for an instant that courts believe it is true and that their beliefs shaped your department’s practices. Your department is trying to do the right thing. It’s not clear that they or the courts actually know what is the right thing.
You have a perfectly professional viewpoint of “contempt of cop” but many indefensible arrests of argumentative people during voluntary encounters will prove that not all of your colleagues share the same view.
You have control over whether you pursue voluntary encounters with a population of disproportionately black people on buses or disproportionately white people in cars. You chose to go after disproportionately black people largely because they are easier targets. That is a form of systemic racism.
I would hope that your arrests would match the demographics of offenders. Instead, the method you described likely matched the demographics of bus riders. Again, evidence in America points out that blacks and other minorities are more likely to be arrested for drug crimes even though they use drugs at the same rates. The difference in those arrest rates are one sign that the tools we use to catch drug offenders are biased against minorities, even if the people using those tools aren’t themselves racist. This is a form of systemic racism. Maybe your other methods weren’t as biased as the methods you described in this thread but I was only addressing the voluntary encounters you described here.