McFreedom

Betsy over at Betsy's Page notes a case in North Carolina about whether consent can be revoked for a search by a police officer. The basic facts of the case appear to be that Timothy Stone was asked by an officer if the officer could search him; Mr. Stone agreed. However, when the officer began shining a flashlight down the searchee's pants, Mr. Stone attempted to revoke his consent to the search. The officer continued, anyway, and discovered a pill bottle with crack in it.

The court found that the search wasn't reasonable because "a reasonable person in defendant's circumstances would not have understood that he would be subjected to an inspection of his genitals," and, as is the normal remedy in cases where police overstep their search authority, threw the evidence out from consideration. Betsy then ends with the non sequitor, "It's as if the criminal can consent to a search, but then know that he's safe as long as he hides the targeted goods (so to speak) in his groin area. This will leave criminals with a safe zone where they can hide stuff and not be searched unless the police get a new warrant."

The questions here, I think, are interesting, and I'm not sure I have a strong opinion on them. But, it is clear to me that Betsy doesn't have a clear understanding of search law, because there's no warrant involved in consensual searches, by definition. Searches with warrants have nothing to do with whether you conesnt to them, and, if your consent is important to the search, there's no warrant involved.

The police may search you for three reasons. The first is that they went to a judge and convinced him to issue a warrant searching for specific things in specific places. In order to this, they must show probable cause before hand that you have the thing they're searching for, or were involved in a specific crime. It does not matter whether you consent to this search, or not, or, in a lot of cases, even if you're present. The second is that the officer on the scene has "probable cause" to believe you've been involved in a specific crime. The classic example given is if an officer is walking past a house, hears a scream, knocks on the door, and a man comes to the door covered in blood holding a knife. The officer has probable cause to search the house for evidence of a crime, with or without the homeowner's consent. A probable cause search is a little risky for the officer, because he has to be able to back up, after the fact, why specifically he thought a crime had been comitted, and "he looked like a drug dealer" generally doesn't cut it. In cases where the officer performs such a search and fails to turn up any evidence, it's possible (especially in racially-charged cases) for the officer to get in a lot of trouble, civil lawsuits to be filed, etc. In the present case, I believe probable cause could've been established, say, if the officer had seen Mr. Stone trying to sell crack, and had then searched him. In that case, Mr. Stone's consent would not matter, either.

The third reason police can search you ends up being the cause of most of the searches that are conducted. And, once you understand the rules about when the police may or may not search you (or enter your home to conduct a search), it's actually pretty mind boggling that they occur much, at all: The police simply ask you if they can search. "Sir, would you mind if I take a look around?" "Ma'am, could you please pop your trunk?" "Sir, could I step inside for a moment?" "Sir, would you mind if I searched you for drugs?" Most people respond to these questions in the affirmative, because they think the police have the authority to back up these simple requests. Under the US constitution, they do not. Many criminals are caught simply because the police ask if they may, or state that they are being, searched. People don't want to annoy the police (arguably especially criminials) so, they go along, and the police catch them.

If the police officer does not have a warrant, he generally has no right to search you, enter your house, or detain you, unless he has specific probable cause that you have been involved in a crime. The reason I know as much as I do about this is that I am a gun owner in California, and the laws are so confusing that most peace officers don't know them as well as I do. I've done the research to know what I need to know if I'm pulled over with my (utterly and perfectly legal) rifles on the way back from the range. My fear is that, the law is so vague that a police officer, if he becomes aware of my rifles, may confiscate them and arrest me. Knowing that I don't have to tell him I have a gun in the car (which, ridiculously, establishes probable cause in California), and that, if he asks me if he can open the trunk, I can say, politely, "no," may help me avoid an expensive and inconvenient legal battle.

So, the real questions, here are: "Once a citizen has consented to a search, may he withdraw that consent?" Generally speaking I believe that the answer to this is "no," but I don't know the case law and I suppose it's not inconceivable that this is an undecided question. The impression I get from the article that the question the judges thought more relevant was, "When a reasonable person consents to a search of his body, should he expect that the police are going to shine a flashlight in his pants?" Bearing in mind, of course, that prior precedents have established that, when a reasonable person agrees to a search of his body, he is not agreeing to a strip search. The question really before the court is, "Is shining a flashlight down someone's pants more like a strip search or more like a pat-down?" I don't have a strong opinion on the matter, but I don't think it matters too much. If the type of people who get busted for crack this way could know "all you have to do it hide it in your pants," they'd already know that, when the police ask you, "May I search you?" the answer is "no."