Another Reason Never to Consent to a Search
You might not be wearing clean underwear:
We conclude here that a reasonable person in defendant’s circumstances would not have understood that his general consent to search included allowing the law enforcement officer to pull his pants and underwear away from his body and shine a flashlight on his genitals.
The defendant prevailed on his motion to suppress (yes, he did in fact have illegal drugs “down there” — point conceded). But what about the next suspect, the innocent suspect, who consents to a search because he indeed has nothing illegal “down there” and is subjected to the same degrading treatment?
And remember: Being wronged, suing and winning is not the same as never having been wronged in the first place. Most people would choose not to suffer such an indignity rather than suffer the indignity and get a payment in exchange (just as most people would prefer not to be punched in the face over being being punched in the face and winning a lawsuit after the fact, or would prefer having a quiet funeral for a loved one over a disrupted funeral coupled with an $11 million judgment).
Meanwhile, one wonders if it might be time for law enforcement to incorporate screening mechanisms to weed out applicants who might be predisposed to engage in conduct that degrades and humiliates suspects. There’s one notorious example who sticks in my mind, from several old episodes of COPS — a Passaic County, New Jersey, deputy named Anthony Damiano (my pet name for him is “Corporal Asshole”).
In incident after incident, Damiano relentlessly and childishly denigrates the people he detains — “teases” might be a more accurate descriptor. (Perhaps ironically these days, one of his favorites taunts is, “Don’t call me Bro, I’m not your Bro.”) And you can see in the clips that he enjoys every minute of it, in exactly the same way that a schoolyard bully might enjoy his pursuits. “To protect and serve” indeed. (Yet it is exactly displays such as these that make COPS so popular. Go figure.)
Yes, screening out sociopaths from law enforcement is definitely a good idea — right after we clear up all this confusion about the propriety of Taser use by police officers.
In the meantime, never consent to a search in a criminal matter. Never.
The case is North Carolina v. Stone, 2007 N.C. LEXIS 1228 (December 7, 2007).
Similar Posts:
- On “Consenting” versus “Submitting” to a Search
- Some Fourth Amendment Thoughts
- Supreme Court to Review Post-Arrest Vehicle Searches
- Amtrak to Embrace Dubious Random Bag Searches
- NYC Transit Searches: First Reports of Abuse Coming In
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Amen. I did a paper on sex offenders a few years ago and in the description that came up again and again of probation officers was "schoolyard bully." I think the same is true of some police. It's actually why I can't watch the show "Cops."
I love watching COPS, but my enjoyment is much less in the last few years. I've noticed the sort of behavior you point out. And it seems like every arrest is drug-related. It's against the law, I get it. But the sheer joy these officers take and the desire to demonize the suspects is disturbing.
The largest problem, though, is the subtle methods cops use to get consent to search suspects and their vehicles. It's always "you don't mind if I search your vehicle" or something like that. Is there a compelling reason why we don't have an honest, direct Miranda equivalent for the 4th Amendment to protect citizens?