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When stopped by police, citizens most often verbally waive their privacy rights in the face of authority. The Constitutional right to privacy is the ideal, but what's the reality?
Police aren't trained to argue privacy laws and Constitutional rights during a traffic stop – they're trained to take charge, to intimidate, even. They expect that a non-cooperative driver – one exercising his privacy rights might be viewed as “uncooperative” - may be hiding something illegal. They are specifically trained to not offer legal advice – including informing you of your privacy rights when they want to search you or your vehicle.
(Most people think if you have nothing to hide then there is no reason to resist a search of your vehicle. The truth is, you have every right to refuse.)
Searches not random
So few citizens know their rights during police questioning that it may seem that when someone does refuse an officer consent to search his vehicle, it would create more suspicion. But the reality, according to Prescott Valley Police Department Commander PJ Janik, is that officers don't randomly ask to search a vehicle.
“If an officer asks to search the vehicle, something has triggered the request,” Janik said. That specific “something” varies with the situation. For example, although racial profiling is illegal, other types of profiling are not. A car sporting a “Legalize Marijuana” bumper sticker is enough to make any officer extra alert to the driver's condition, the odor of marijuana inside the vehicle and the behavior of the occupants, regardless of the reason for the traffic stop. Another common profiling is the generalization that many persons with serious addictions to illicit drugs or alcohol don't tend to spend much money on vehicle upkeep; cracked windshields and broken taillights are legal reasons to stop a vehicle, and the “up-selling” begins with a close look at the driver's condition. This may lead to a request for consent to search the vehicle.
“Nobody likes to hear, 'No',” Janik said. “But if a driver says 'No,' then that door is closed to the officer.”
But national statistics show that most drivers, even those who have drugs in their cars, consent to warrantless vehicle searches. Why is that?
“There are two arguments for that,” Janik said. “In the first, the driver has nothing to hide and says, 'Sure, knock yourself out.' In the second, the guy who's got contraband thinks the officer won't find it.”
Empty law
Here's another reality: even thought the state Supreme Court recently ruled that police must have a warrant to search your vehicle even when you're arrested, local police circumvent that easily. After arresting a driver during a traffic stop (for any cause), police call a tow truck to remove the vehicle from the roadway. An officer then searches through the vehicle to inventory all the possessions within it.
“This is not a means to find evidence,” Janik said. “We don't want the driver coming back later claiming he left a Rolex watch on the front seat and now it's missing.”
Ostensibly, the inventory protects the police and the tow company and ensures the owner gets all his property back, but guess what? Police can charge the driver or vehicle owner for any illicit material the officer finds during his “inventory,” and finding say, drug paraphernalia is probable cause to justify a full search warrant to go through the vehicle with a fine-toothed comb. This practice renders the Supreme Court ruling both meaningless and powerless.
DRE
Many officers train in Drug Recognition Examination. DRE is a means of quickly covering a checklist of physiological symptoms that may indicate drug impairment, and includes examining eye movement, tongue color, pulse rate and more.
“You have the right to refuse it,” Janik said. But, just like refusing a field sobriety test when suspected of driving drunk, that may not be the end of the incident.
Fishing with Terry
The “Terry frisk” is another privacy issue that often nets a user or seller of illicit drugs. The “Terry” is a police search that doesn't first require an arrest. If an officer talking with you – even as a pedestrian on the street - believes that you might be concealing a weapon, he can conduct a “pat down” of your clothing for his own safety; if he feels something hard in your pocket (arguably a possible weapon) he can require you to show it to him.
“If it's a soft object, he can't 'go fishing',” Janik said.
Maybe, but here's the reality: If the officer feels something soft in your pocket, he can ask you to show it to him but, because weapons aren't typically soft, the law doesn't allow him to make you show it. However, a skillful officer can make a request sound like an order - “Empty your pockets, please.” Bingo – Mr. Drugseller thinks he has no choice and shows the officer the plastic bag of meth in his pocket. Later, in court, the officer's careful wording reads as a request.
Ends & means
Are these police tactics “bad?”
As a newspaper reporter perusing police daily logs, I discovered how routinely traffic stops that would normally produce a “fix it ticket” for, say, a cracked windshield, instead resulted in arrests for DUI, selling meth, outstanding warrants or even child abuse. Ditto for Terry frisks. Many of these arrests wouldn't have occurred had the person known his right to not have to answer extraneous questions, to refuse a warrantless search or to decline to show the entire contents of his pockets. In this regard, it isn't so much that police tactics are bad, but that such people are as ignorant of their rights as most everyone else. These tactics catch criminals.
“And if we get more drugs off the streets, we've succeeded,” Janik said.
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