If a police officer comes to my door and asks if I have illegal items (without arrest or mirandizing) can I give a seemingly ridiculous answer without fear of them taking that as probable cause to get a warrant and search my house.
“I don’t have any of that officer” I did when it was legal, but lost it in a bar fight with wildebeest."
To me a stupid answer like that is NOT probable cause for a warrant, but I’ve got a debate going that they think if I give this answer the cop will use that as cause to get a warrant and search my home.
If the cops are coming to your house to question if you have illegal items, there is a good chance they already have developed sufficient facts to establish probable cause. Even if they didn’t yet have probable cause, they would probably describe your answers as “evasive” and your demeanor as “uncooperative”, which they would use to bolster their claim of probable cause. In short, I don’t think a cop who is investigating a crime will be thwarted by a funny retort.
A warrant is based on the totality of the circumstances. A goofy answer probably won’t be enough for a warrant but you don’t know what other information they have. That won’t come out until the suppression hearing.
But if the officer described the statement as …your affiant then questioned the subject, who refused to provide a direct answer to the question. When questioned further, the subject gave evasive, sarcastic answers and was uncooperative. He appeared nervous and uncomfortable discussing the topic…
What’s that? You weren’t nervous? You knew you had nothing illegal, so you were just joking around? Well, lucky for you cops never embellish their affidavits to bolster their claims of probable cause.
No, if you give anything but a straightforward answer (variations of ‘decline to comment’) you should expect that a cop is going to respond badly. They might take it seriously, and if your phrasing isn’t careful could give them legitimate probable cause, or can be a crime on its own. For example, your smart ass phrase admits that you did possess something that is now illegal, which is generally not a good thing to say to a cop, especially since your story of how you lost it is unbelievable. Or he might break out whatever charges apply for lying to a cop, as you’re not going to be able to document that your fight with a wildabeast happened. He can also decide that your answer annoys him enough to apply for a warrant on whatever information he had that led to him questioning you in the first place. And he might just be one of the ‘bad apples’ that shoots you dead and claims self-defense later.
Bricker’s answer seems to be that of a lawyer looking at the case from the perspective that if they got a warrant probably wouldn’t hold up when it got into court, or maybe into appeals. In practical terms, though, you’d need to spend anywhere from hundreds to tens of thousands of dollars in legal fees to get to the point where that analysis is relevant, and in the meantime would have your house searched and you’d possibly be arrested either for the lie to the cop or anything they might find. The actual question isn’t whether such a search would be legal and stand up to a challenge in court, it’s whether you should fear a cop searching your house as a result of smart-ass answers.
An “affiant” is one who affirms, or makes an affidavit. (One who affies?) When the prosecutor refers to himself while talking to the judge, he calls himself “your affiant”.
Probable cause exists when the facts and circumstances known to the officer would create in a reasonable person a belief that a crime was likely in progress.
So “nervous and uncomfortable” are certainly observations that can add to the determination, but alone they do not create probable cause.
You are correct, of course; the joke, alone, (or any observations made by the officer of the jokester) would not rise to the level of probable cause.
But, from a practical standpoint, an officer who comes to the door to ask about illegal activity likely has already developed a hunch*, and the joking response can be used to bolster the hunch (which you alluded to; it can “add to the determination”) to create probable cause.
At a minimum, responding to a legitimate query with an offhand joke isn’t going to make the cops give up. For that reasons, it’s not advisable.
*I mean, I suppose there could be a situation where a cop bumps into somebody unexpectedly in the street, and the guy says, “oops, sorry, officer, I didn’t see you. I was rushing home to my dungeon lair where I keep my slaves…haha!” I don’t think that this statement, by itself, is sufficient to generate probable cause. But the guy shouldn’t be surprised if cops start hanging outside his home or talking to his friends to follow up on their suspicions.
All I’ve got to add is that my mother has told the story about how she and my father were coming back from Canada and he answered “Did you leave anything in Canada?” with “My breakfast and some cigarette butts” and promptly was chosen for further inspection. But that’s customs, not police.
I think that confessing to multiple serious crimes, then tossing a ‘haha’ at the end and expecting the haha to mean they can’t treat the confession as real is an insanely stupid thing to do. Remember, the cop doesn’t need to convince YOU that he has probable cause. If he thinks the situation is exigent, he can just barge in (yes, a felony in progress with trapped victims doesn’t always require a warrant to investigate). If he waits for a warrant, he just has to convince a judge. A judge who may well be very sympathetic to the cop, and may just rubber stamp warrants for the local PD. Even if it doesn’t hold up on appeal, you’re talking about spending months or years and thousands to tens of thousands of dollars to contest whether it was reasonable to take your confession at face value.
I would also advise against ‘it was hard to pack my bag with that bomb in there, haha’ at the airport. “But I was just joking” can end up costing you a lot of time and money, and maybe things like your job and custody of kids.
That too, would get you burned. If someone immediately tries to lawyer up, it is effectively an admission of guilt to many officers. Whether or not they can or will do anything about it, well… only one way to find out.
I don’t smart-ass the police, and my default state is smart-ass. I can’t expect someone who in some areas is in danger with every traffic stop to share my whacky sense of humor.
Thus I nearly died when a new boyfriend and I were pulled over for speeding (he was driving), and my date gave a smart-ass answer to “have you been drinking, sir?” that elicited hilarity. Turns out that in a small place, a state prosecutor *can *be a smart-ass with the police, particularly if he donates to the PBA, and if the smart-ass answer refers to a case he’d prosecuted with that particular officer.
Other than that particular situation, I’d say no, one shouldn’t do that.