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I Do Not Consent To A Search
Am I free to go?; I want a lawyer
by B Wyze
May 5, 1992
Dedicated to the memory of Paul Reynolds, one of San Diego's inspired leaders in the pro-hemp movement, cut down in his prime by a sheriff deputy's bullet.

Disclaimer: I'm not a lawyer; I'm one of you. What I write here is the best information that I've gleaned so far, and I'm prepared to use it myself. These are my best suggestions, and do not constitute legal advice. In situations where there's a question between what's legal and what's safe, my bias is to stick with what's safe. Check out this article with your lawyer or a good second-year law student or better, and then mass copy it for all of your friends! Let us know what you find out, what your experiences are, and your ideas, so we can keep this up-to-date and make it even better. [Note: the following information is specific to the United States, though much is applicable elsewhere.]

This is your front line of defense in the War on Drug Users.

What it is: Cops love to play word games, and they're good at it. They're also good at taking control and being the boss, or coming on like they're your parents or something. They know that you have rights, but they're betting that you don't know what they are. Watch your ass! Many people get busted by falling into their traps, or by not realizing that the cop is trying to get you to give up your rights ... so don't let them get away with it! One lawyer said that 99% of the people in jail talked themselves into it.

Some of their cute little tricks: "May we search you? No. Why, got something to hide?", or "Look, can I go? Not yet. Why, am I under arrest? Would you like to be?" Rather than keeping this sort of bullshit going, or trying to outwit them, it's just better not to play that kind of game. Keep in mind that if you lie to a cop and they can prove it later, that's one more thing you can be charged with ... so don't tell them anything one way or another! (One lawyer did say "Admit nothing, deny everything, and demand a lawyer", so maybe you can lie to a cop since you're not under oath, but it seems more prudent just to keep quiet.) Sometimes they'll threaten "Look, we can go get a warrant anytime, so you'd better let us in", but what that really means is "We tried everything, but couldn't get one. Please let us in so we can bust you." Well ... just say "No." Tell them to go get that warrant. Sometimes they'll say "A friend of yours ratted you out and told us everything. You know the guy, (insert name here)." This is a fishhook ... don't bite! And don't believe them! They're probably trying to get you to "retaliate" and to spill the beans about your friend ... who will be next on their pickup list because of what you just said.

General advice
Remain calm. Don't offer physical resistance. Be polite if you say anything. Don't cuss at or mouth off to a cop ... fighting words are not protected speech, and the cop might have grounds for assault charges against you (or at least will make life a little rougher for you). And, never consent to a search of any kind.

Best case scenario
They detain you for a non-drug reason, such as a broken car light, a traffic violation, stereo too loud, etc. It's best to play along as "the good citizen" and to be courteous. If you totally get into their game and promise to take care of it, at most they'll write you a ticket, admonish you, and then let you go. Take the lumps! Express remorse! It works. If they go too far (like trying to search you or your property), then dig in your heels and exercise your rights. Read on.

Your Rights
You have the right to refuse to let them into your home if they don't have a warrant (4th Amendment). You can refuse to consent to a search (4th Amendment), but you can't physically stop them. You can remain silent (5th Amendment), although it is often advisable to give them your name, address, and age. You have the right to have your attorney with you while they question you (6th Amendment). You have the right not to sign anything they give you, except for a ticket [erowid note: you actually have the right not to sign the ticket, but the police will likely take you into custody]. Do not make a statement!

Their "rights"
They can briefly do a pat-down search on the outside of your clothing and check-out suspicious lumps that feel hard and bulky ... they want to make sure that you don't have a concealed weapon (but you should say "I don't consent to being searched" anyway to cover yourself, and you shouldn't carry anything incriminating in that same pocket!). They can and will ask you everything under the sun (freedom of speech you know). If you blow it by: answering their questions, letting them into your house, or consenting to a search, then they gotcha cold ... so don't do it! They don't have to read you your rights if you're not under arrest, so you'd better know what they are. They can briefly detain you for various purposes, but they can't hold you unless you're under arrest (If you ask "Am I free to go?", and they say no, ask "Why not?" or "What is the law that allows you to hold me?" or "I'm not under arrest, yet you've said I can't leave ... please clarify my legal status at this time."). If you try to physically resist them or to run away from them, then they have the right to use force against you ... even if you're clean and have done nothing wrong! So ... keep calm and be cool, they've got the deck stacked in their favor and they know it.

Reasonable Suspicion
Allows them to look briefly, but not to search.

Probable Cause
Having some kind of evidence against you, such as: a certain smell, an anonymous phone call about you, or seeing a joint lying on your living room table. Refusal to allow a search is not probable cause ... if it were, then they could search you no matter what answer you give, which is totally against the US Constitution (4th Amendment).

At Home
If they knock on your door to "ask you a few questions", then either talk through the closed door or quickly step outside and lock your door behind you. This serves two purposes: One, do not give them an opportunity to look inside ... if they see something, that's probable cause. Two, if they want to conduct an illegal search, then they'll have to break down your door to do so. Then you can use the broken pieces as evidence against them, whereas if there are no broken pieces, then they will claim that you let them in voluntarily. If they drag on their "question" thing too long, keep asking "Am I free to go?" until they give you a definite answer. If they have a warrant, then tell them they can't start their search until your lawyer arrives to witness it, and then get that lawyer over real quick! During the search, have everyone sit together and instruct them to say absolutely nothing. If the cops ask you to do something, then you may politely tell them "Unless you are ordering me to do that at this time, I refuse. Are you ordering me to do that?" If they say yes, then you can ask "What law says that you can order me to do that?" If they can't answer, then don't do it. If they try to force you at that point, do not resist, and state "I'm not doing this voluntarily, but under protest and duress." Remember your witnesses.

On the Road
You don't have much left in the way of rights when you're on the road. In my opinion, the best you can do is to keep things on the level of an average citizen stopped for a minor traffic violation. It's pretty easy to do this, and all it takes is a little fore-thought.

First of all, keep your license, registration, and proof of insurance in an easily accessible place, such as attached to your sun visor. The less time it takes for you to get these, the less time the officer has to look through your windows while waiting. If you get pulled over, stay in the car, turn on the cab light if it's dark, roll down your window, keep your hands relaxed on the wheel (10-2 position) so the officer can see them, sit still, relax and wait for the officer to come to you. (sudden moves, ducking down, looking nervous, or appearing to be searching for something under your seat is just asking for trouble ... so, just sit up naturally, be still, and put the officer at ease). The point of all this is to demonstrate to the officer that you're an average ordinary citizen ready to be admonished for some small infraction, and that you're hoping for a warning rather than a citation, so be a little meek and humble. The idea is to get the cop to like you and to trust you, and maybe you won't even get a ticket! When interacting with the cop, be courteous and listen attentively. Be at ease, and talk to the person behind the badge.

The cop has the right to look in your car from the outside, so it's good practice to keep any questionable items put away while you're driving (ie, don't keep a half-smoked joint sitting in an open ashtray!).

If you're legally carrying a firearm, it's advisable to tell the officer (eg, "Officer, I have an unloaded pistol in my glove compartment. What would you like me to do?"). If this is the case, obey their orders, and make it clear to them that you're just a law-abiding citizen who's aware that San Diego is not as nice as it used to be.

If they ask you to get out of the car, it's strongly advisable to do so. Get out slowly in a calm, deliberate and reasonable manner, and follow the cop to see what it is they want to point out to you.

If all of the above goes well, then you'll at most get a ticket and will be free to drive away. This is what you want. The next part of this section is for those cases that don't turn out this nicely.

Like I said in the first line of this section, you don't have much left in the way of rights when you're on the road. Cops apparently have the right to "pat down" the interior of your car (driver's compartment, glove box, and underneath the seats) if they suspect that you're armed (and you haven't told them so). I know of no searches that have not been held up in the courts. They apparently can legally search closed containers in your car, and don't need a warrant to fully search your car if they have probable cause.

In my opinion, the best strategy is to maintain the role of "average citizen" but to be a little more indignant if they want to do a search, and to keep yourself legally covered. If they ask if they can search your car, tell them "No. I won't consent to a search of my car without a warrant." but as you say this, keep physically relaxed and keep your movements slow. Say it reasonably, as if they're trying to make a big deal out of nothing. When they ask why you're refusing their search, tell them "I've been advised by an attorney never to consent to a search." Give them a chance to back down gracefully, as if this were just a harmless misunderstanding on their part, easily forgiven.

If they proceed anyway with the search, after you've tried all the above, your last resort should be to say "If you search my car, without my consent or without a warrant, I will file Federal criminal charges against you for violating my civil rights under the color of law!" Say it and mean it. Now, you are a pissed off, but still peaceable, citizen who's about to be wronged. Yeah, it's a bluff, so you'd better say it like you mean business ... but remember to refrain from any kind of threatening posture! Be serious in intent, but cool and composed in bearing. It might work. If it doesn't, then remain silent, and watch them without getting in the way.

The more adventurous of you will go through this entire process even though you're not carrying any contraband! Why? To waste their time. We want to help them waste their time, money and resources in wild goose chases, and to lead them into dead ends. The more we can do that, the more worthless the Prohibition will appear.

In Public
If they want to search you, then say "I do not consent to being searched." Always be clear about this, try to involve witnesses, and never physically resist. If you ever try to resist, then they will use force ... they always do. So, be relaxed, move slowly, and keep your hands out where they can see them.

Tight Situation
They conduct a search without your consent, and find something. Almost anything you say at that point will hurt you. The best thing you can do, and it is your Constitutional right, is to say "I want a lawyer" and then keep your trap shut 'til you get one! Don't answer any of their questions (except name, address, and age) if your lawyer isn't with you.

Worst Case Scenario
It's 3:30 am, ten cops break down your door and they're yelling and pointing their guns at you ... freeze! Do not move a muscle, and keep absolutely quiet for at least a count of 3! They'll frisk you and start to tear your place apart. When they know you're unarmed, then ask "Do you have a warrant? I do not consent to a search." If they do have one, then read it and make damn sure that they can legally do what they're doing. (Apparently their warrant doesn't need to be signed to be valid, so long as a signed copy is on file). If the warrant doesn't specify what they're doing right now, then say so and insist that they stop (but don't try to physically stop them!). If they do not have a warrant, then tell them that they must leave. If they don't, then call the State Police and FBI, and report an incident of trespass by the local police and ask them to come and remove them. Get your lawyer there as quickly as possible, if you can, and remember that the more witnesses you have, the better ... there's always your neighbors! If the cops arrest you, then they must give you a receipt for everything they confiscate (wallet, clothing, packages, etc.), so I would think that they must also give you one for whatever they take during the search.

If They Arrest You
Ask "Why am I under arrest?". They have to tell you what the charges are. After they book you, demand your two phone calls, at your expense: first to an attorney, relative or employer, and second to a bailbondsman. If you can't afford a lawyer, then demand that they provide you with one at no expense. Do not let your lawyer enter a plea of "not guilty" before the arraignment (the first trip to court where you will be formally charged, which by law has to occur within 48 hours of your arrest, barring holidays and Sundays), because that would automatically lock you into criminal proceedings, which is where your dear lawyer will try to make his/her money. You should try like hell to get your case dismissed before that arraignment! Your lawyer knows what to do, and if s/he won't do it, then get one who will. If you can't get it dismissed, then enter your "not guilty" plea at the arraignment and insist on a jury trial, which will be expensive and difficult for the DA. Do not let your lawyer waive the speedy trial time limits! (Which s/he might try to do so they can charge you more money for "preparation", etc.) You don't want the prosecution to have all the time in the world to build their case against you! If you are adamant about all that, and if their case isn't strong, then they might actually drop it! What the hell, it's worth a shot! If your case does go to trial, then try like hell to get that jury informed about their inherent right to judge the law itself, and to nullify it by letting you go, if they think it's not fair or is totally ridiculous (like forcing you to go to prison for a year for having 1.5 ounces of pot, or some equally obnoxious law).

Knowing what to say and do is great, but it's even better if you get together with your friends and practice on each other, preferably in at least two frames of mind. That way, if you're one on one with a cop, you'll be ready to handle the situation.

Additional Materials
"If You Are Arrested" wallet-sized card (ACLU);
"Officer, Please Understand ..." wallet-sized card (People Against Police Brutality);
Fully Informed Jury Association (local rep: Jim Lorenz, San Diego, CA, 282-4778).
"The Speeder's Guide to Avoiding Tickets" (book).

How You Can Help Fight
Register to vote (preferably in a sympathetic group such as the Libertarian Party, which supports the legalization of drugs), for then you become eligible to serve on a jury and to use your right of nullification to free a brother or sister. Join NORML and get wise! Copy this pamphlet, give it to your friends, and help spread this, our only means of defense. And, most of all, be a good and conscientious person ... nothing is more devastating to the "War on Druggie" types than to show the world that these assholes are persecuting some of the best people. Make 'em think.