JUST SAY NO TO SEARCHES!By Pat Barber
Most folks don't know they have a constitutional right to refuse a police search request...and a lot of others are afraid to say no. Police agencies across Texas have stepped up what they call "consent" searches of vehicles on our highways. The unprecedented numbers of searches are mainly the aggressive push of the state's 47 federally funded Drug Task Force(s) with a major assist from the Texas Highway Patrol and local officers.
An officer will stop a traveler on some pretext, such as a seatbelt or speeding violation, or as has been documented in many cases - no valid reason at all - and use the "consent search technique" to circumvent the constitutional prohibition against unreasonable searches. The driver will be asked a set of questions designed to get him or her answering; such as, "Where are you going?" What are you doing? And then ask what they are really after "Do you have any guns or drugs in your car?" or "Do you have anything illegal in your car?" And when the traveler answers in the negative, the officers says, "Then you don't mind if I look in the trunk, do you?"
The officer is standing there in his mirrored sunshades, black Task Force uniform, pistol on his hip, and the traveler has nothing but a limp ego. Most people feel intimidated by this situation. They don't know their rights, believe they will be searched even if they do refuse, and give up.
Occasionally, an officer will couch his statements in such a way as to confuse the traveler as to whether there is a request to search or an order. For example, the officer will say, "I need to see your driver's license." Clearly, this is a demand for identification. Then, later the officer will say, "I need to make a quick search of your vehicle." This sounds like a demand, but is actually a deceptively worded request. If the traveler doesn't object, the officer will say he had consent.
Police officers are not required by law to inform the traveler that he or she has an absolute constitutional right to refuse a search request, that a refusal cannot be used in any way to imply probable cause of criminal activity or that they will be free to leave if they do refuse. A chief deputy sheriff told me, "We rely on people's ignorance to get their consent."
An old DPS trooper friend tells his family and friends to say to these "storm troopers" (task force officers) the following: "Officer, I don't have anything to hide, but I don't want you pawing through my stuff." Sometimes a refusal will bring threats to get a warrant or a German Shepherd drug dog, but if the officer really had probable cause to search, he wouldn't be asking for a search; he would be telling you. However, my data indicates that a firm and consistent "no" will work most of the time, regardless of threats.
An officer stopped my daughter for speeding and wanted to search her pickup, though there was no evidence of wrongdoing. She told him she was late to meet her vet about her horse; that was why she was speeding and she didn't have time for a search. The officer threatened to go to the JP for a warrant, though his threat was a deceptive bluff since he didn't have probable cause.
When she heard the magic word "warrant", she thought she didn't have a choice. What she said was, "Officer, my father is a lawyer, and he told me that if I ever gave consent for a search, he would kick my butt The officer's angry response was, "Take your ticket and get out of here."
Her quick answer prevented unnecessary humiliation, and is recommended for three reasons:
1. Her response was funny (although the officer obviously didn't have a sense of humor),
2. It was evident she had access to legal counsel, and
3. The officer knew she was acting on advice of counsel.
In the past, many travelers were targeted because of racial profiles, but now it appears that everyone is suspect. One well dressed lady traveling in a late model suburban was seen standing by the side of the road trying to hold her hair together in a 20 mph wind while officers threw her possessions on the ground. After the officers finished the "consent" search and left, a local citizen stopped and helped her pick up her things. She was very frightened after the search extended for over a half-hour, when she remembered that she had bought the car, second-hand. She realized if the previous owner had lost something as small as a marijuana roach in the car, she was going to jail. (Her fear was not unreasonable “ I know of a good Baptist who spent a night in jail because he consented to a search of the family car. His teenage son's friends had, weeks earlier, lost a roach in the crack of the back seat.")
I've seen vacationing families with children standing in the summer heat in the bar ditch while officers went through their suitcases. I saw two gray-haired ladies standing in the cold, last winter. I've had hundreds of complaints from searched citizens who felt like they had been tricked and humiliated for no reason. I may be old fashioned, but this kind of intimidating police behavior is offensive. The random search approach may occasionally net smugglers, but at what price? Most folks don't want to see us turn into a third world police state where you can't walk across the street without a police dog's nose in your crotch.
My point is to create a fundamental debate about roadside searches. Do they yield enough criminal cases to justify intrusions into glove compartments, trunks, luggage, purses and pockets of law-abiding travelers?
While police agencies are quick to seek publicity for their roadside arrests, data about "failed" (nothing found) searches is intentionally suppressed; no police paper trail is kept. If we had an accurate assessment of what the police are doing, we would likely see an enormous number of traveling Texans are being tricked and harassed by the "consent search technique".
If the police try this technique on you, and you don't want to give up your 4th Amendment right against unreasonable searches, tell them your lawyer told you to "Just Say NO to Searches!"
Pat Barber - Attorney at Law - 102 W 2nd St., Colorado City, TX 79512
www.justsaynotosearches.org “ [915-728-3391]
In June, 1998, West Texas lawyer Pat Barber put up a billboard on his ranch bordering I-20 with the message, "Just Say NO to Searches!" with an information line phone number. The info line has a two minute recorded public service message informing the traveling public about the 4th Amendment. "You probably can't teach courage", Barber says, " but if people know they have an absolute right to say no, then in the face of intimidation some people are going to be able to resist." One working day after the sign went up, the local Sheriff complained to the Texas Department of Transportation, and the next day TexDOT sent Mr. Barber a threatening letter demanding he remove the sign or be fined $Â1,000.00 per day for violation the Highway Beautification Act. Mr. Barber filed a lawsuit for declarative and injunctive relief against TexDOT in Austin. In October 1998, a Travis County district judge found that it was probable that he would prevail against the State on his claim that the State's enforcement attempt violated his free speech constitutional rights. The judge enjoined the State from any action against Mr. Barber until a final hearing.
A year later, on October 25, 1999, a hearing was held on joint motions for Summary Judgment. Another Travis County district judge, newly assigned to the case, indicated intention to grant the State's motion and deny Mr. Barber's motion, and further indicated intention to dissolve the temporary injunction restraining the State's desired enforcement action against Mr. Barber.
Although Mr. Barber's attorney will appeal the adverse ruling, the appeal will take a year or more to be heard. Since the State refused to delay forcing the removal of the sign until an appeal could be heard, Mr. Barber had no choice but to remove the sign or become liable for fines of up to $1,000 per day.
On November 4, 1999, Mr. Barber stood beside Interstate 20 at high noon and burned down his public service billboard. I hope our dramatic removal of the sign will emphasize its message to all who see it. Just Say NO to Searches!
- Pat Barber
