# Your Rights Disappear the Moment You Say This

https://www.youtube.com/watch?v=vLVGjVf5FK0

[00:00] It is astounding to me that the courts are okay with this analysis.
[00:03] Hi, welcome back to be on the breathalyzer.
[00:07] We're discussing exceptions to the warrant requirement and the first exception on our list is consent.
[00:11] It's easily the most common exception to the warrant requirement and the most well recognized.
[00:15] The idea behind the consent exception is that if a person freely and voluntarily consents to allow an officer to search an area over which the person has dominion and control, the officer may search without a warrant necessary.
[00:30] This is the only exception to the warrant requirement that depends completely and entirely upon what the citizen says and has nothing to do with what the officer knows, when he or she know it, and what other surrounding circumstances may be influencing the officer's state of mind.
[00:45] It takes the search from a constitutional protection into a conversation.
[00:50] This is the exception where your rights don't disappear, you simply hand them over to the police.
[00:56] But as I told you in our last episode, the law defines consent in
[01:01] funny and interesting ways.
[01:03] And in some cases, free and voluntary consent includes the police telling you that you are required to allow them to search.
[01:10] Imagine if we define consent in that way in any other area of the law.
[01:16] My name is Shelly Behan and this is Fourth Amendment Friday.
[01:27] The legal standard for consent is that it must be voluntary under the totality of the circumstances.
[01:31] In order to use the seized evidence at trial, the government has to demonstrate that consent was given voluntarily by a preponderance of the evidence standard should it be challenged pre-trial.
[01:43] In order to determine the voluntariness question, courts consider a few things like whether the person was in custody or if they were free to leave.
[01:52] In this scenario, custody doesn't necessarily mean under arrest, it could simply mean detained.
[01:58] The number of officers present is also a factor, as multiple officers will turn
[02:03] any scenario into what courts refer to as a police dominated environment.
[02:08] The language of the police use in requesting consent, along with the knowledge of the right to refuse is considered.
[02:14] Although astonishingly, the police don't have to tell the person that they can refuse.
[02:19] Courts consider the individual's age, intelligence, and experience within the legal system, along with whether the police engaged in any intimidating practices, like displaying their weapons, or prolonging the encounter until the person just conceded.
[02:34] It is astounding to me that the courts are okay with this analysis.
[02:37] The police don't have to tell you that you have the right to refuse, you are just supposed to know that you have that, apparently.
[02:46] And then, when confronted with the police, who can be quite demanding in most instances, feel free to exercise it.
[02:51] That is simply not reality.
[02:53] Let's pour some legal on it and talk about Schneckloth and Bustamonte.
[02:56] Supreme Court case where a traffic stop occurs.
[02:58] Officer says, "Mind if I search the car?"
[03:01] And the driver
[03:03] Says, "Right this way, officer. Go ahead."
[03:05] Officer finds stolen checks.
[03:08] Case goes up on appeal, the driver claiming he did not know he could refuse the search.
[03:12] "Don't care," said the Supremes.
[03:14] "Consent is valid, even if you didn't know that there was another option."
[03:18] This is the case that defines the doctrine.
[03:20] We go from informed to waiver to not being beaten into acquiescence.
[03:24] But here's the problem.
[03:25] Consent necessarily assumes a level playing [music] field.
[03:28] An officer who wants to search and a citizen with total control of the location that the officer wants to search.
[03:35] Real world encounters are anything but, and it's absurd for the courts to believe that we are dealing with a situation where the citizen and the constable are on equal footing.
[03:46] Let's describe it in DUI terms, so So, easier to understand.
[03:49] Most DUI arrests take place late at night, by which I mean early in the morning, between midnight and 4:00 a.m.
[03:57] The person is by the side of the road, flashing lights around, often there are at least two, but usually more officers
[04:03] who are armed.
[04:06] Sometimes the citizen is cuffed and in the back of the patrol car, but even if they are standing next to the officer, the psychological reality is not one of an ability to refuse a request.
[04:13] People think they will simply be taken to jail if they don't comply, and the police know that.
[04:19] So, the request for a chemical sample often sounds like, "Listen, I have no intention of taking you to jail tonight.
[04:26] We just need to do this one last thing, and then we will get you on your way.
[04:30] Will you consent to a test or tests of your blood, breath, urine, or other bodily fluids?
[04:33] The driver, quite understandably in those circumstances, may believe that the consent is the only thing keeping them from going to jail.
[04:41] In Arizona, the request for consent is fairly new.
[04:43] The officers used to tell drivers that the law required them to submit to a test or tests of their blood or breath.
[04:49] In fact, the statement that was read to the driver used the word required four separate times.
[04:55] The case, Valenzuela, which changed the law, is one that I had the honor of being involved with as amicus counsel.
[05:01] That case, which cited to two others, South Dakota versus Medicine and Bumper
[05:05] versus North Carolina, essentially held that when citizens were told there is no choice,
[05:09] or they are misled into thinking there is no choice, consent isn't voluntary.
[05:15] Now, there might be administrative penalties.
[05:17] Some states will suspend your driving privileges if you do not consent to a blood draw for a DUI arrest.
[05:23] Some states, like Georgia, go further and use that refusal as evidence of guilt, if you can believe that.
[05:29] Imagine if you refused to consent to a search of your house,
[05:32] and a prosecutor brought that up in trial.
[05:34] It'd be thrown out in a second.
[05:36] But that is the DUI exception to the Constitution, something we'll discuss in a later episode.
[05:40] Consent is best attacked through full and complete illumination.
[05:44] By highlighting a lack of any meaningful choice, defense counsel can show that this was mere acquiescence and not voluntary consent.
[05:51] And mere acquiescence to state of authority, as Bumper held, is not consent.
[05:56] Show the coercive environment, that the police already had the person's identifying documents, had implicitly threatened them with a side trip to jail unless the blood draw was done, and collapse the illusion of
[06:08] into the truth of what it really was, compliance.
[06:10] The critical point I want you to take away from this episode, from this whole series in fact, is that you never have to consent to a search.
[06:16] The Fourth Amendment does not require you to submit to the police demand for access to your home, your things, your body, your phone, or your car.
[06:24] Indeed, unless they have a warrant, you don't have to agree.
[06:27] You have the right to refuse.
[06:30] There may be administrative penalties for refusing, as I've already described, but you always have the right to refuse a search.
[06:36] Please understand, I'm not advising you to refuse, I'm not advising you to do anything at all.
[06:40] This is information, not legal advice.
[06:42] I am simply informing you that you have the Fourth Amendment right to refuse a search, and to make the police come back with a warrant.
[06:49] And by me telling you that you have the right to refuse, I'm doing more than the police do when they ask for consent.
[06:54] Because, "Mind if I search?" hits different when you're alone by the side of the road.
[07:00] And if it was truly optional, they would make that clear to you.
[07:03] And that does it for this week's episode of Fourth Amendment Friday.
[07:06] Tune in next time when we talk about
[07:08] Exigent circumstances.
[07:10] Until then, stay free, stay fabulous, and remember your fundamentals.
[07:14] My name is Shelley Wiemann.
[07:16] I am the host of Beyond the Breathalyzer.
[07:18] Your rights are my priority.