Interesting Texas Fourth Amendment Case

[Bartholomew Roberts]

Recently a motorist was pulled over and the officer made repeated (6) requests to search the car where the motorist did not give consent; but did not deny it either. Finally the officer asked "“Do you mind if I look?” To which, the motorist answered “yes” and "I guess" according to the officer. Upon so replying, motorist was ordered to exit the car and the car was searched.

The Amarillo appeals court held that answering "Yes" to the question "Do you mind if I look?" means that the motorist did indeed mind if the officer looked and as a result, the car cannot be searched.

All in all, an interesting case and a good example that the words you choose can be important in legal situations.

Good discussion of the case over at the Volokh Conspiracy:
http://volokh.com/2010/02/10/do-you-mind-if-i-look/

[KyJim]

Pretty unremarkable except it illustrates the value of having a recorded answer. I'm always surprised at the large number of those carrying contraband who "consent" to searches.

[Double Naught Spy]

All in all, an interesting case and a good example that the words you choose can be important in legal situations.

Whether the occupant said YES or NO, the officer was going to look. Glad the court didn't fall for the officer's ploy. In this case, the officer took the positive answer as permission, but the negative answer would have been permission as well given the nature of the query.

I am not even sure that asking if the occupant "minds" if the officer looks is the same thing as giving permission. The question asks for an emotional sentiment and does not directly ask permission.

[NavyLT]

Originally Posted by KyJim

Pretty unremarkable except it illustrates the value of having a recorded answer. I'm always surprised at the large number of those carrying contraband who "consent" to searches.

I'm always surprised at the large number of those NOT carrying contraband who "consent" to searches. Personally, I have never been asked, but if I am, my statement, "I do NOT consent to any searches" should be pretty darn clear. I have nothing to hide, have no contraband, but I will fulfill my oath and support and defend the Constitution. Cops have no business bein' in my business until I become a criminal.

[44 AMP]

Cops have no business bein' in my business until I become a criminal.

But they don't know you're not a criminal, until they get "in your business", now do they!

Around here, cops are being taught (or I assume so) to use the phrase "for my safety" when they ask to search your vehicle. Personally, I consider this rather irritating, and along with the phrase "dangerous weapons" a redundant misuse of language.

ah, the world we live in today....

[fisherman66]

But they don't know you're not a criminal, until they get "in your business", now do they!

Maybe, but they are going to need probable cause or a warrant to get into my business(car). I'm sure neither are hard to obtain or even make up on the spot, but I can't figger out why anyone would give consent if the officer has no leverage.

[svaz]

But they don't know you're not a criminal, until they get "in your business", now do they!

But they don't know that you are and therefore do not have probable cause.

I've heard it phrased this way, "If he has probable cause he doesn't need to ask you, and if he asks you then he doesn't have probable cause, so why say 'yes'?"

I'm not trying to bust balls here, nor am I anti-LEO, but a right not exercised ...

[jgcoastie]

You being in the possession of and operating a motor vehicle does not, in and of itself, provide sufficient reason for a LEO to stop and search your vehicle. Ever, period.

Unless you are entering a military installation where entry (or attempted entry) to the installation implies consent. Don't believe me? Check the signs next time you go to a base...

We are taught to use the "reasonable person standard". It is loosely defined as what the next 12 people that will walk out of the local Wal-Mart would think to be reasonable. We, as LEO's, are granted a cretain amount of authority and jurisdiction by applicable statutes, codes, and laws. Because of this, we should all be held to a higher standard. We should also have a better understanding of what is reasonable and what is not, we have been trained on it, we should know it. It is not our job to go snooping/fishing/baiting just to (later on) say that we are "supercops" and knew that something wasn't right... All the while blowing smoke out of our a**es because we really didn't have a clue. We were just taking advantage of someone else's ignorance of the law and their rights. It is wrong, it is illegal, but mostly it's just plain immoral.

[Gbro]

jgcoastie,
Your post is what I would like to think LEO's should all follow. however that just isn't reality.
I have never had anything to hide, well maybe a can of beer in my teen's but i just do not see any reason to make myself vulnerable.
Case in point.
A friend that is a deputy sheriff was fishing during a LEO's get together, Conservation officers and deputy's and Police. Upon docking his boat a Conservation Office asked to see his fish. There were 2 fisherman both Deputy's, in the boat and they had miss counted their fish and had one over.
No one can refuse a stringer inspection/boat search on public water in MN, but once on a public road consent must be given, or a warrant is needed.
Well the CO issued a ticket witch was his job.
Why would someone want to give consent to a search and then find out that all the tee's didn't get crossed. So you get a fine, so what! its the record that will always be found on the internet now.