Some Fourth Amendment Thoughts
To review: Never, ever consent to a search:
Consent to search a suitcase for drugs revealed two candles that appeared to the officer to have been tampered with because they looked tampered with. Inside was drugs. The consent to search for drugs in a suitcase includes any closed containers inside that could contain drugs. United States v. Santana-Aguirre, 2007 U.S. Dist. LEXIS 47760 (D. Neb. June 29, 2007), following United States v. McKines, 933 F.2d 1412, 1423 (8th Cir. 1991) (en banc) (soft drink bottle inside suitcase contained drugs).
The police are well-skilled in this. “Mind if I take a look?” “Anything in here I should know about?” “I’m just gonna take quick peek, okay?” The only correct answer is, “I consent to nothing.”
Once you consent to a search, you have completely waived your Fourth Amendment rights regarding that search. You generally cannot revoke your consent, nor can you easily consent to a “partial search,” as this fact pattern demonstrates.
I have argued before that there should be Miranda-style warnings for all constitutional rights that may trigger during an encounter with law enforcement. “You have to right to withhold consent.” “You have the right not to allow me inside.” “You have the right to leave this area.” And so on.
To invert a favorite of the police: “If they’re not doing anything wrong, then why should they object?”
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Another fact pattern that I’m seeing too often is people who audio-record or videotape police encounters (including their own arrests) being charged with offenses such as disturbing the peace, obstructing governmental administration or — most insanely — illegal wiretapping.
The courts need to start handing down some bright-line rules on this subject. Two good starts would be:
1. Anyone can record anything that occurs on a public street. Period.
2. Anyone can record anything that occurs in their own vehicle. Period.
As for the police, “If they’re not doing anything wrong, then why should they object?”
Similar Posts:
- On “Consenting” versus “Submitting” to a Search
- Hair-Shaving and the Fourth Amendment
- War on Sniffles Goes High-Tech
- What’s Good for Two Should Be Good for Two Hundred Million
- Doesn’t the Fourth Amendment Generate Heat Too?
Filed under: Uncategorized
The idea that illegal wiretapping laws were ever intended to cover conversations taking place in public places defies common sense.
The idea that you're interfering with police activities by videotaping them defies physics.