Wednesday, July 20, 2016

"Consent" Isn't Consent If You Have To Consent To Everything

Radley Balko provides a worrisome story regarding the advice the Waterbury, Connecticut police chief gave to a largely black audience regarding how to interact with police:
If an officer stops your car, if they ask to search your person or vehicle, if they demand entry into your home, comply and then complain later to the department’s internal affairs office and police chief’s office if you feel your rights have been violated, [Chief Vernon] Riddick said.
Balko gives a host of reasons why this is an outrageous piece of advice to give. But I'll focus on one: If you consent to a search of your person or vehicle or home, that search is now legal. If the police ask to search you and you agree to it -- even if there's no probable cause, even if there's no warrant -- that search is entirely valid and admissible. There wouldn't be anything to complain to IA about -- at least with respect to the search.

There is plenty of scholarship which suggests that this entire notion of "consent" is more than a little fictitious. If a police officer is talking with you on the sidewalk and asks if he can take a look inside your bag, reflect on how likely you are to say "sorry, no" and walk away. Now think of how much that instinct is compounded if your city's chief of police has just publicly announced that the way to have a safe and healthy relationship with the officers under his command is to "consent" to everything they ask and then complain about it later. Is it realistic to say that any "consensual" searches in that context actually evince "consent" in any meaningful capacity?

This advice is entirely unbecoming of person tasked with enforcing the law in a nation where the Constitution is the most important law of all. There are plenty of lawful commands the police have the right to issue which you should obey; including some of which the right move is to obey and then challenge later. But when it comes to a search request in a scenario where there's no warrant and no exigent circumstances, consenting to the search permanently obliterates your right to challenge it.

1 comment:

EW said...

Eh. The original source of this story does not quote the police officer. It's hard to get too excited about how a journalist choose to characterize the police officer's message.

Indeed, it's easy to imagine that the officer advised people to cooperate by staying calm in asserting their rights, even when the rights are violated. When confronted with a police demand, say, "Respectfully, officer, I do not consent." And then comply with police demands anyway. In this way citizens preserve their rights while minimizing the likelihood of getting shot.

Admittedly, civilians have the free-speech right to talk rudely toward police officers. And probably there are legal ways that civilians could behave that would prove to be a greater deterrent to police searches than the strategy of docilely complying with illegal police orders. (I think of the strategies employed by protestors/civil disobedients in locking themselves to stationary objects, or to each other, or in going limp so as to make the police officer's task of moving protesters harder.) But given the current national mood, perhaps these are not the best days for testing the boundaries.