Further Explanation
After I posted “Jack’s” NRO piece last night, a friend asked me via IM what my problem with it was. I thought it was cut-and-dried, he saw it from a different angle, and I went to bed wondering what sort of comments my PGB readers would have left for me by morning. :)
Let me walk you through it, though if you want a quick version, Aaron pretty much got it in one in the comments.
You may be as pure as the driven snow itself, but you have no idea what horrible crime that police officer might suspect you of committing.
Expect cops to treat you like a criminal. Yes, I understand this to an extent. I do. Though most people are good, I understand that cops see the worst of society, and many are jaded, and they also have a vested interest in protecting their hide. Guess what? Though most cops are probably good, I’ve had a couple close encounters (and many vicarious close encounters) with bad ones. So, I’m jaded, and I have a vested interested in protecting my hide. Thus, even though Joe Trooper who pulls me over is probably a decent guy? I’m not going to talk to him more than I have to, I’m not letting him search my vehicle, etc. I have to assume he’s not interested in my rights, so I better mind them myself. Which brings us along to…
A passing police officer sees you and, asking himself how many 1932 Hupmobiles can there be around here, pulls you over.
Alright, scene established. The officer has pulled over a unique automobile, and is assuming the driver is the guy who knocked off the Piggly Wiggly. Officer presumably runs the plates, calls for backup, does whatever he feels the need to do.
At that moment I can assure you the officer is not all that concerned with trying not to offend you. He is instead concerned with protecting his mortal hide from having holes placed in it where God did not intend.
So, he cautiously approaches the vehicle, to find me in the drivers seat, perhaps a little annoyed he’s taking so doggone long but otherwise calm and quiet. He asks for my drivers license, registration, and proof of insurance. Here in Idaho, since I’m driving a vehicle, I do have to provide a license to drive that vehicle. I hand it all over.
If, at that point, the officer asks to “take a look in the trunk,” I’m telling him no. Why? Because I can. Because it’s my right. Because I have committed no crime, and I am not going to submit to an unwarranted search of my personal belongings. Period.
And you, if in asserting your constitutional right to be free from unlawful search and seizure fail to do as the officer asks, run the risk of having such holes placed in your own.
There’s my problem with Jack. I have just asserted my constitutional right to be free from unlawful search and seizure, which goes hand-in-hand with failing to do as the officer asked (search the car), and Jack is telling me I’m running the risk of being shot.
Maybe Jack just sucks at writing. Maybe what Jack really meant to say was, “If I approach your vehicle and you jump out, screaming in my direction about your ‘motherfuckin’ rights!’ and start advancing on me, you run the risk of being shot.” Maybe what Jack really meant to say was, “If I ask you to step out of the vehicle, and you say ‘make me, pig!’ and reach for your glovebox, you run the risk of being shot.” But where, in the scenario he provided, did the innocent driver of the lookalike car do anything “wrong” aside from asserting rights? The way Jack wrote his scenario, asserting your rights and failing to do as the officer asks are, essentially, one and the same. He says jump, you say “I have rights that say I don’t have to jump” and thus do not jump, and you shouldn’t be surprised to find yourself shot for that?
When the officer has satisfied himself that it was not you and your Hupmobile that were involved in the Piggly Wiggly heist, he owes you an explanation for the stop and an apology for the inconvenience, but if you’re running your mouth about your rights and your history of oppression and what have you, you’re likely to get neither.
So, while the officer owes you an explanation and apology, if you’re uppity you won’t get them. Jack should not have used the word owes here. Owes is mandatory, a duty, implying payment of a debt, or the like – not a courtesy. Apparently Jack’s standards for his fellow officers are pretty low, since he’s saying they’ll shirk a duty if pissed off.
This also says: Don’t question mah authoritah. If you’re a good little boy, I’ll tell you why I pulled you over out of the blue. If you’re not, and I don’t shoot you first, I’ll just let you go wondering what the papers-pleeze stop was all about. If Jack had any forethought, he’d realize the people who are “running their mouth” about their rights and a history of oppression are the ones most easily put in their place by a quick explanation and apology. A little goes a long way. I’m going to feel like an ass if I’m bitching about my rights, thinking I’ve been papers-pleezed, only to find I was stopped because of an Amber Alert matching my vehicle’s description.
As for my objection to Jack’s pseudonym – it’s exactly what I said. He talks a big game. He’s full of bravado for someone standing behind a nom de plume. No, it’s not original, but so what if they’ve been used since time began? That doesn’t automatically put someone who uses their pseudonym for anonymous chest-beating on the same level as Benjamin Franklin or Mark Twain. Ever heard of the Greater Internet Fuckwad Theory?
Seems perfectly clear to me why Jack was out of line.
The last part about the pseudonym was all I needed. I do it myself so my comments don’t end up linked to my resume. You’ve dipped you toe in the water yourself, although much lower key.
The Federal Farmer he ain’t.
Ok Ok, I give…
I see your point. Asserting of rights does not warrant a perforated hide and that is literally what “Jack” said might happen. I agree that is extreame.
However, politely refusing a search is a FAR cry from ranting, screaming, and calling names which (argueably) sounds like what happened in the Gates case. Should Gates have been shot? Of course not. Was Gates at that time a suspect. Yes. The officer was responding to a breaking and entering call, anyone found in the house would automatically be a suspect. A simple “can I see ID”/”Ok officer, here ya go” exchange would have removed him from the suspect list and everything would have turned out fine. It sounds to me like it was more like a “can I see ID”/”Stick it you racist pig” kinda thing. Maybe I’m wrong, I can admit that.
Being a rather large scary-looking man myself, I have made more than my share of officers nervous just by being there and frowning a lot (something that often happens when I have to deal with cops). I have learned that I have to handle some officers with kitten gloves so it has become somewhat automatic. Does that mean I wouldn’t assert my rights, no, it just means I would do so in as nice a manner as possible.
Laurel, I agree with your analysis of Jack’s blurb. There should be no illegal or unjust repercussions after invoking your rights.
However, if an officer asks to look in your trunk and you say no, that doesn’t always prohibit them from doing so. Having read your blog for a while and having commented before, I just wanted to give you a few examples where it might be appropriate for them to still search ;-)
There are several exceptions to the search warrant rule which allows LEOs to search without one. (These are listed in no particular order, and I may have forgotten one or two, I’m a bit tired)
A) Hot pursuit. Yes, this term doesn’t just apply to Smokey and the Bandit movies. If an officer is chasing you for a felony crime, you just can’t run into your home with him hot on your heels, stick your tounge out at him and yell “goal”. They are coming in to get you, probably right quickly.
B) Emergent situations. Officers get called to a house on a report of a domestic disturbance. They look through the glass of the front door and see someone lying on the ground, not responding to knocking or ringing on the doorbell. They are coming in to make sure the person doesn’t need medical attention, again, probably right quickly.
C) Inventory searches. If your car gets impounded, the law is responsible for the vehicle until it is returned to the owner. They have to inventory the vehicle to ascertain what exactly they are responsible for.
D) Incident to arrest. If there is probable cause to arrest you, they don’t need to get a search warrant to search your person, or the area immediately surrounding you when you are arrested. (your effective “wingspan”)
E) Consent. As long as the consent isn’t coerced, once it is given, the officer is free to search. You can revoke the consent to search while the search is still in progress. The burden of proof as to the voluntariness of the consent is on the police/prosecution, and this is why many agencies have and use a written “consent to search” form.
F) Exigent circumstances. When there is probable cause to search, but due to outside factors, there just isn’t time to get a search warrant. Motor vehicles fall under this exception due to the fact that they are so easily mobile. If the officer leaves to go get a search warrant, it is likely the evidence will be moved or destroyed.
G) Border/Customs searches. The border patrol doesn’t need a reason to search you within a certain number of miles from the border. I don’t work for them, so I’m not sure what the exact distances is.
(I’m pretty sure that is it, however, the police adacemy was 16 years ago for this guy…)
The standard of proof needed for a police officer to legally search your car is “probable cause” due to the exigent circumstances exception I listed earlier.
In the Piggly Wiggly holdup example, let’s say that not only the car matched the description, but the driver matched the description as well. Maybe the license plate description was very close too, maybe it was given as an 8 and on the suspect vehicle it was a B. This kinda raises the level of probable cause, no?
A savvy officer might first ask for consent, and get the reply recorded on the in-car video system. If consent is given freely, then the whole “was there enough probable cause” issue becomes moot. If consent is not given, then the officer will use the exigent circumstance exception, and just have to rely on the prosecution and judge agreeing with him that enough probable cause was there to justify the search.
At that point, he/she will likely order you from the vehicle (if this was a lawful stop, then this is a lawful order based on USSC case law) and then search the vehicle anyways.
This is the point where I imagine you and/or TI would begin to… um, have issues? So I included all the above to provide you with a few what if scenarios to maybe cause you to think a bit before getting all “Gatesy” on the officers. (I was going to add another winky thing on the end, but by now hopefully you realize I’m not trying to be an Internet Fuckwad)
Like you said earlier, be polite, comply with reasonable/lawful orders and keep quiet. If the officer violates your rights, you will hit a big payday in civil court.