How to Flex Your Rights During Police Encounters

Since many of our supporters may be skeptical of NYPD when it comes to matters of search and seizure, I'd like to clarify that this is a very good thing:

The New York City Police Department wants suspects to sign a consent form before searching their homes or cars, a move that eliminates the need for a warrant and is meant to provide police a layer of legal protection, Newsday has learned.

The initiative was put in place because consent searches are often challenged at trial - and jurors too often believe the suspect's claim that police never got permission to conduct the search, police sources said.

At the same time, sources said, there has been concern within the NYPD about a handful of cases in which an officer's truthfulness was recently called into question. [Newsday]

Written consent policies are a win-win situation for police and the public. When consent is given in writing, police have an easier time demonstrating in court that consent was given voluntarily. Since evidence seized during a consent search is almost always legally admissible, defendants challenging such evidence must argue that consent was given involuntarily or not at all. As a result, police spend a considerable amount of time in court defending the manner in which consent was obtained. A written form goes a long way towards resolving such conflicts.

For the citizen, written consent provides a quick reminder that permitting searches is optional, while simultaneously creating an added layer of protection in disputes over whether consent was given voluntarily. The form will go a long way towards resolving widespread concerns about police erroneously claiming to have received consent before conducting a search.

Finally, there's an additional important point illustrated here. As Newsday reports, "jurors too often believe the suspect's claim that police never got permission to conduct the search, police sources said." For anyone questioning the viability of refusing consent during a police encounter, this should go a long way towards explaining how asserting 4th Amendment rights can help citizens achieve a more desirable outcome. It serves as a helpful reminder that, even if police violate your rights and search despite your refusal, any evidence they discover can be effectively challenged in court. Obviously, this is a frequent occurrence if NYPD cites such outcomes as a reason for moving towards a written consent policy.

Given the significance of the citizen's decision whether or not to permit police to look through his/her belongings, a written form is just the obvious, common sense approach to establishing whether consent was given.

Update: Pete Guither at DrugWarRant has a good post discussing the NYPD policy and explaining why it is never in the citizen's interest to consent to a police search.

Check out this comment on our blog, which accuses Flex Your Rights of compromising police work by helping serious criminals evade prosecution:

In response to my previous post, Barry Cooper acknowledges that refusing consent can work, but maintains that this is a rare outcome. Similarly, WindyPundit notes on his blog, and in comments here, that recent Supreme Court decisions have dramatically weakened the 4th Amendment protections of motorists.

I propose the following addendums to Barry Cooper's advice regarding consent searches in Never Get Busted Again Vol. 1: Traffic Stops. This information is intended to help those who have private items that aren't well hidden, who are concerned that passengers may have stashed unknown items, or who have nothing to hide and wish to protect their 4th Amendment rights. I urge Barry Cooper to disseminate this information via his email list.

Flex Your Rights has eagerly anticipated Barry Cooper's new video Never Get Busted Again: Vol.1 Traffic Stops, which finally arrived yesterday. After reviewing Cooper's DVD, we're disappointed to report that Never Get Busted badly misses the mark regarding consent searches.

We hope the following will not be interpreted as a rebuke of Cooper or his video, much of which we enjoyed. Still, we find it necessary to comment at length on his surprising advice.