You have to be on your toes and state clearly (and probably into a tape recorder) that you “Do not consent to a search of your vehicle.” Of course, that probably wouldn’t play out too often in real life.
Sure, the state can argue that, and they probably will.
The rule is that consent must be knowing, voluntary, and unequivocal. But those are matters for the trial court to determine in each individual situation. I’ve seen “consent” found when the accused said: “Go ahead and search, you will anyway.” To me, that wasn’t exactly knowing, voluntary, and unequivol. But I wasn’t wearing the robe that day.
The safest path is to make your REFUSAL as clear and unequivocal as you can. That solves the problem.
It’s simply what’s reasonable for the officer, in light of his training and experience, to believe. If he can say what he felt might be a weapon, then he’s on safe ground.
Well, theoretically, they can bring a state suit against the officers, or even a federal 42 USC § 1983 claim. But this type of action is NOT free; they must hire a lawyer.
There’s no rule that the officer has to explain anything to you at the scene. He merely needs to have answers when he’s on the stand at the supression hearing.
Obviously, those answers need to jibe with the actual facts as they played out.
See, I don’t trust them as far as I can throw 'em. I believe they will lie if they don’t like you. And he can make up anything he wants, i.e., smelled marijuana or whatever to cover his ass. I don’t believe there’s much you can do if they want to fuck with you.
Besides making it clear that your do not consent to a search (and you should not consent even if you think you have nothing to hide)- if the officer wants you to stay after “as long as it takes the officer to complete the citation process”, then make sure to ask “Am I free to go? I’d like to leave now.” (being polite and deferential), thus making sure that the Officer is not able to claim you stayed out of your own free will. Once he forces you to stay, this is in effect a sort of arrest. So then if you say something like “Gee I sure hope you don’t find those illegal fireworks…” it can’t be sued against you in a Court of Law unless the Officer has Mirandized you. IANAL.
In general- anytime you are “stopped” or “detained” ask that question (well, he gets to write a citation etc, sure). If the Officer says “NO”, then things have changed- A LOT. If so, STFU, and say “I’d like to speak to my/an attorney” and nothing else. Don’t buy an answer like “are you in a hurry?” Ask again. Until you get a straight answer.
I seem to recall a big case where a woman called the cops and sent them over to her ex’s house on suspicion of drugs. He told them they would need a warrant and while they were waiting for it, the guy flushed everything he had. I wish I could remember the details. I think they wanted to detain him outside. Maybe that was it. They detained him so he wouldn’t flush the dope, and he said his rights were violated because of that? Does anyone remember this case?
IIRC, in this particular case it proved that he was unequivacably innocent of the charges for which he was accused/tried and convicted. After that was determined, they did not release him from custody ‘for some reason’…
I think that you and I are in more agreement then you may think… simply put, to get a new trial, there must be new evidence presented… real/hard evidence… not just a defendants continued cries of “but I didn’t do it”… a standard of “new hard” evidence would (one would think) be sufficeintly harder for each round.
One favorite tactic is to tell you, “OK, here’s your license back; you’re free to go. Oh - by the way, do you have anything in the car I need to know about?”
The trick here is that by saying you’re free to go, and then continuing to ask you questions, they hope to be able to argue later that the detention had ended, and a new, completely consensual encounter had begun - a consensual encounter is, of course, free from any requirements of cause or suspicion.
“So I’m free to go, then?” is an appropriate response.
What’s to prevent a defendant from holding back a few pieces of “hard evidence” at the first trial, then? He wins - no problem. He loses, and loses his appeals – then he trots out new piece of evidence #1. Bingo - new trial. The state has to prove his guilt all over again to 12 new jurors. He loses here… hey, wait a year, and then unveil #2. Once again, he gets a new trial, and 12 MORE jurors to be convinced.
And if the state’s witnesses are unavailable, or dead, in the interim… good luck for the accused!
That’s a good question, but I wonder as to the validity of the scenario.
Why would a defendant “hold back” exculpatory (og I hope I got that right) evidence?
The exact quote from Scalia is this:
but I’m still googling for the relevant case/article and details… the case I remember was not a Death Penalty case, but a more generic incarceration (albeit long and the crime was not minor).
That’s the way I remember it too. I stumbled across an article (which I can no longer find) in Findlaw about a case (Quinones) in which is was reported that Scalia and Thomas found that the execution of an innocent person was not unconstitutional. They might have thought it tragic but it wasn’t against the constitution. They were alone among the justices in their view. That does seem to me to be carrying strict reading of the words of the constitution to a ridiculous extreme.
It does seem to me that the execution of an innocent is cruel although unfortunately it doesn’t seem to be unusual enough.
I suppose as a strict constructionist Scalia might argue that a punishment must be both cruel and unusual in order to be unconsitutional. That is, if we give every thief 60 lashes with a cat-o-ten tails then it might be cruel but it’s not unusual ergo not unconstitutional.
This bears only peripheraly on the OP subject but is illustrative that common sense can be severely strained as legal hairsplitting occurs in court. You might have all the moral right in the world on your side in your set-to with a cop, but you also had better have dotted all the i’s and crossed all the t’s in the legal system if you decide to push it.
Back in the early 70’s I was pulled over, in Southern MS. by a MS. trooper, for a
loud muffler, I had been partying at a friend’s house and the cop asked me about
drinking, had I been, or how much, I don’t recall exactly. I didn’t answer him and he
asked again. I replied w/ something like “I don’t believe I have to answer that”, at
which point he put me in the front seat of his car, no sobriety test, no handcuffs. He
then starts to drive and continues to ask me about drinking and driving and I remain
silent. This obviously ticks him off as he pulls over and tells me to face the pass.
window and put my hands behind my back. He then puts cuffs on me and takes me
to the local sheriff’s station where he tells them he wants me to take a breathalyzer.
They give me the test and a few minutes later they determine that somethings wrong. I
overheard two of the deputies kind of arguing about something to do w/ the machine.
They then want me to take the test again and I refuse on the grounds that the law
requires I take the test or forfeit my license, I took the test and it’s not my problem if
it didn’t come out the way they wanted. Now they’re all puffed up w/ testosterone so
they take me to the tank and tell the jailer to give me ONE phone call. I called a
friend and she got hold of a lawyer I knew and he came down and got me out. I
wanted to fight the charges, but the lawyer got the charge reduced and told me it
would be much more expensive to do that than just pay the fine. I took his advice,
but I’ve often wondered if I was on solid ground in refusing the second test? Any
opinions.
And in reading thru the linked article… it’s fairly clear that the accused was found guilty, and that the “new evidence” was not enough to clear him anyway… so in this particular case, it was not even about the execution of an innocent person.
