Can refusing a search request create grounds for probable cause ? ( or effectively so )

Legal & Second Amendment
1

As relayed to me a driver was supposedly told that this was indeed how it worked. I could not extract what other factors may have been left out of the telling of the event that might have explained the search request. But, Having been stopped for a burned out headlight, the officer supposedly requested to search the car and, on general principals, the request was refused. The driver was then supposedly told that if he did not allow the search, a supervisor would be called who would arrive with a warrant, the driver would be arrested, the vehicle impounded, and then it would be searched anyway. Again, supposedly, no reason was given for the original search request, but the refusal of the search request was sited as giving the officer probable cause to carry out the threatened arrest and impounding, and subsequent search. Knowing that police are allowed to lie, I could only suggest that perhaps it was just that, a lie to “encourage” compliance. The driver is a senior citizen who sometimes can look a little unkempt but not overly so.

In this case it worked, the search was granted, nothing found, and the driver was on his way again, if not a little upset by the experience.

The implication was that refusing a search request, in it self, generated probable cause.

Is that possible? or must there be something more to it?

4 Likes
2

Read the book “you have the right to remain innocent” by James Duane.
Some prosecuting attorneys are taking this to the next level–telling juries that when a person invokes their right to remain silent (5th amendment), they are essentially admitting guilt–because innocent people have nothing to hide. And judges are lettiing it happen. I’m paraphrasing what the author says, but I think the implication is clear.
Now if they’re trampling on the Constitution like that and getting away with it, I don’t see why they couldn’t do the same thing with your 4th amendment rights.

10 Likes
3

This sort of situation is one of the main reasons for my joining the USCCA, education available, and help in situations like that when, for all you know, the old rules have changed.

6 Likes
4

I myself believe that qualified immunity should be removed from LEO’S as well as them having the right to lie just so they can become more of a thug with a badge and a gun. I was raised with the saying, a lie is a lie and lying is not good. So why should those which take on a job to protect and serve, and uphold laws be able to become God’s by doing whatever they like just because they feel they can? Right is right

13 Likes
5

I agree and I don’t agree. Qualified immunity is needed to protect them form the nuisance lawsuits brought on by ambulance chasers. But, I thinks any evidence that results from a lie should be excluded.

8 Likes
6

IMO>>> he should have called their bluff. If there was probable cause they wouldn’t need a warrant to search. If there wasn’t probable cause they would have to have a warrant issued by a Judge. How could a Judge
Issue a warrant to search because of a tail light ? If they did carry out their threat I’m sure there are plenty of ambulance chaser lawyers that would take that case on contingency.

10 Likes
7

I am pretty sure he is also one of the guys in this video: https://www.youtube.com/watch?v=d-7o9xYp7eE

Yup, that is him.

OP, sounds like some rather overzealous cops fishing for something.

3 Likes
8

I would have to say from my experience the Officer would have to have very concrete probable cause in order to force a search without a warrant as specified under the 4th amendment. Same would apply in obtaining a warrant, there must be probable cause.

Recently in Oregon, Officers are no longer allowed to randomly ask to conduct a search, they must have probable cause. I believe reasonable suspicion is no longer enough.

In response to the question “is that possible?” It seems to me that there may have been more to it.

5 Likes
9

I do have to wonder what we’re missing from the actual story.

7 Likes
10

I think that many people hear the phrase “qualified immunity” thrown around by politicians and the media and believe in their hearts that they know exactly what it means. Qualified immunity as a term is being abused and has been abused for some time now just like the term “assault weapon”.

What is “qualified immunity?” In layman terms, if an Officer follows agency procedure when performing his or her duties and is sued for doing so, the agency itself can be found liable and not the Officer.

What it isn’t: Qualified immunity is not protection against : Telling lies, planting evidence, using excessive force or anything that is outside the scope of law or an agencies policies.

Refusal to consent to a search by a citizen does not free an Officer to begin abusing or violating their Constitutional Rights. That is why USCCA teaches that you are to make the statement “I do not consent to a search of my person or property”. It sets up a situation where an Officer must stop and secure a warrant to continue. If they don’t, it could result in a violation of your rights. And if you had just used your weapon in self defense, an unreasonable or unconstitutional search will go a long way in your defense.

12 Likes
11

Welcome aboard @Norman42

I tend to agree with you.

Controversial “First Amendment Auditors” IMO try to bait the LEO which is a waste of time and taxpayer $$

1 Like
12

So we both agree that if they harm, mistreat or kill an innocent person they should do the time correct?

5 Likes
13

Welcome to the family brother @Norman42 , glad you could join us.

1 Like
14

No, refusing consent to search does not on its own create grounds for probable cause. That is not to say that it cannot be contained in a affidavit for a search warrant where there are other articulable facts that would actually rise to the level of probable cause.
As has been said, if the officer had probable cause to search or arrest the person, they did not need a warrant to search the car. If they thought they had probable cause but were concerned about it, they could detain him until they got a warrant.
The only thing I will add is that the request to search the car usually comes after the officer gives you your documents back and a citation if you are getting one. This is done to show that you are not being detained at the time the request to search is made and the consent was voluntary.
If you are asked if police can search your vehicle, I suggest your response is “No, am I free to leave?.”

12 Likes
15

Thank you for responding, I discovered quite a bit by asking this question, not all of it comforting. I was wondering what a legal mind would feel, all things considered, to be a best overall response to such a request. I felt, as you pointed out, that if the officer had a clear reason to search, it would simply be carried out, and there would be no “requesting” involved.

The point is endlessly made that if you had nothing to hide, why would you refuse a search? People forget embarrassment and humiliation and personal items like say, your wife’s sexy picture in your birthday card, but what of the question that, If there was nothing to find in the search, what probable cause could there have been to even request the search? In other words, if nothing was there to be found, what prompted the search??? It’s THAT that I believe people are unaware of, and about which I learned the less than comforting news.

A scenario seems to exist where, ( for example ), if you are tired ( weary eyes ), didn’t shower yet, and don’t dress well to begin with, you may look to an officer like a suspicious person. Then, when you refuse a search, this then simply adds that last “affirmative” " indicator " that raises things to the next level.

I used to travel with emergency cash on board, Part of what I learned is that if you carry enough cash to cover an expensive travel emergency, this is exactly the sort of thing these searches are looking for, " large amounts of cash that “COULD” be money laundering cash, or drug related " Your 1,000.00 ( one thousand ) dollars emergency money could very well be confiscated until you could explain it!

One other thing I learned worth mention here, is that a great many 100.00 bills that are not new, ( and $1,00.00 would be ten of those), have been used to snort cocane. A drug dog can alert on that!

I wish it were, but it’s not as simple as, " you have nothing ILLEGAL to hide ".

Just some of the food for thought I got from this question.

4 Likes
16

The right to remain silent and the right of protection against illegal search and seizure are there to protect the innocent and not the guilty. This is exactly what is taught to students and clients in our USCCA courses of instruction. And the materials that we use come directly from legal counsel. As instructors, we teach this material “Verbatim”, leaving nothing out and adding nothing to it.

Some Police Officers, Investigators and Prosecutors have bastardized the entire concept to make honest, law abiding citizens feel as though they are criminals simply for exercising their Constitutional Rights.

It’s very simple: “I invoke my right to remain silent, I will cooperate fully once my Attorney is present, I do not consent to a search of my person or property”.

Anything less or more will give your attorney headaches and will ultimately lead to making your case more difficult to win. Those rights were fought for with American Blood. Cherish them by exercising them.

Stay safe out there.

10 Likes
17

I have found some of the instructor comments to be very valuable to me in examining this situation, not to mention, of course, MikeBKY. I thank each of you. It’s invaluable to know how to respond, and why to respond that way, It is one of the very important things one can get from being a part of the USCCA.

It is one of the few things I feel I can heartily recommend to others.

3 Likes
18

As an aside, should the right person see this. I am on my 2nd attempt to use the online training, specifically to gain such knowledge as this. However, I live in a location where there are no instructors anywhere near by, and so, I can not complete the range requirements to advance through the online course. Are there any suggestions regarding that? Though I’ve been a shooter most of my life, I still think exposure to training and new things learned is worth it, even if it feels like a refresher course.

Besides, it sounds like a great excuse for another range day!

4 Likes
19

Oh, if things were not too tense I think it might be fairly routine for an officer to attempt a consent search, even if (s)he had PC for an involuntary search:

  1. obtaining consent for the search probably minimizes the need to argue later about whether PC was present at the time of search;
  2. consent search would not involve obtaining a warrant;
  3. an involuntary search would pretty much notify a suspect that they were in trouble, while a casual consent request (“mind if I look in the…?”) might not produce alarm.

If you are “not guilty”, probable cause might still be present — if your appearance, or vehicle, or location, or some other indicator seemed to match some report or evidence of crime. I don’t think that “looking like a bum” would pass muster — but partial match of a license plate, appearance of blood on your shirt, vehicle damage, tattoo, or weapon very well might appear to connect with a criminal complaint. So, innocent or not, there you are until things (hopefully) get straightened out.

Hey, with seizure practices still on the loose, your $1000 could very well disappear until you spend $10,000 to get it released. I would think about whether paper or plastic better covered my emergency needs.

1 Like
20

I will skip the point by point. I regret I expressed things in a way that compelled you to state the obvious. And if I implied that PC could not exist without me knowing , then again I erred. Certain conditions, like a bloody shirt or a damaged car, I should, and would, expect such things as a search request.

I am actually pro-police, and for police having reasonable tools available to do their job.

If you feel plastic to be as reliable as cash in hand - that is a topic for another day.

2 Likes