Some Fourth Amendment Thoughts
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To review: Never, ever consent to a search:
Once you consent to a search, you have completely waived your Fourth Amendment rights regarding that search. You generally cannot revoke your consent, nor can you easily consent to a "partial search," as this fact pattern demonstrates.
I have argued before that there should be Miranda-style warnings for all constitutional rights that may trigger during an encounter with law enforcement. "You have to right to withhold consent." "You have the right not to allow me inside." "You have the right to leave this area." And so on.
To invert a favorite of the police: "If they're not doing anything wrong, then why should they object?"
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Another fact pattern that I'm seeing too often is people who audio-record or videotape police encounters (including their own arrests) being charged with offenses such as disturbing the peace, obstructing governmental administration or -- most insanely -- illegal wiretapping.
The courts need to start handing down some bright-line rules on this subject. Two good starts would be:
1. Anyone can record anything that occurs on a public street. Period.
2. Anyone can record anything that occurs in their own vehicle. Period.
As for the police, "If they're not doing anything wrong, then why should they object?"
Consent to search a suitcase for drugs revealed two candles that appeared to the officer to have been tampered with because they looked tampered with. Inside was drugs. The consent to search for drugs in a suitcase includes any closed containers inside that could contain drugs. United States v. Santana-Aguirre, 2007 U.S. Dist. LEXIS 47760 (D. Neb. June 29, 2007), following United States v. McKines, 933 F.2d 1412, 1423 (8th Cir. 1991) (en banc) (soft drink bottle inside suitcase contained drugs).The police are well-skilled in this. "Mind if I take a look?" "Anything in here I should know about?" "I'm just gonna take quick peek, okay?" The only correct answer is, "I consent to nothing."
Once you consent to a search, you have completely waived your Fourth Amendment rights regarding that search. You generally cannot revoke your consent, nor can you easily consent to a "partial search," as this fact pattern demonstrates.
I have argued before that there should be Miranda-style warnings for all constitutional rights that may trigger during an encounter with law enforcement. "You have to right to withhold consent." "You have the right not to allow me inside." "You have the right to leave this area." And so on.
To invert a favorite of the police: "If they're not doing anything wrong, then why should they object?"
---
Another fact pattern that I'm seeing too often is people who audio-record or videotape police encounters (including their own arrests) being charged with offenses such as disturbing the peace, obstructing governmental administration or -- most insanely -- illegal wiretapping.
The courts need to start handing down some bright-line rules on this subject. Two good starts would be:
1. Anyone can record anything that occurs on a public street. Period.
2. Anyone can record anything that occurs in their own vehicle. Period.
As for the police, "If they're not doing anything wrong, then why should they object?"
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Posted by Kip on
5 July 2007
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