-Submitted by David Drumm (Nal), Guest Blogger
This is a question frequently asked by police officers to use the consent exception to the requirement to obtain a warrant. Note the difference compared with “Can I search you/your car?” A “yes” answer has exactly the opposite meaning depending upon which question was asked. Police officers are well aware of this fact.
In the case of J.W.E. v. State of Florida, this question, and its answer, were critical.
J.W.E. was riding his bicycle during the evening when he was stopped by law enforcement because his bicycle did not have lights. During the stop, the officer sought J.W.E.’s consent to be searched. The officer, believing he had obtained consent, searched J.W.E. and found marijuana. J.W.E. was charged possession of not more than 20 grams of marijuana.
During the motion to suppress, the officer initially testified that “he asked permission to search [J.W.E.] and [J.W.E.] replied in the affirmative yes.” The officer subsequently explained: “I said ‘Do you mind if I search you?’ And he said yes.” The court inexplicably denied the motion to suppress.
On appeal, the District Court of Appeal of Florida, Second District, found:
Indeed, the officer’s testimony that J.W.E. answered “yes” when asked “Do you mind if I search you,” tended to establish that J.W.E. did not consent.
The District Court also found that the motion to suppress should have been granted.
Police officers are well aware of the counter-intuitive aspect of the “Do you mind?” form of their attempt to gain consent. That’s why they use it. In the ACLU’s guide Know Your Rights, they recommend:
If you do not want your car searched, clearly state that you do not consent.
The proper answer to the “Do you mind?” question is: “I do not consent.” This response avoids any ambiguity inherent in the question.
H/T: FourthAmendment.com.
FF LEO,
Please come back and stay a while. Your presence is missed. I am pleased the grandchild is doing better…
FFLEO,
Thanks for that video.
It’s an eye opener and a good education
for me as a non lawyer.
I’m very glad to hear all is well for you and yours. While we miss your regular contributions and wisdom, we are glad for the good news. So until the wind blows you back this way . . . we’ll leave a light on for you.
Hi Buddha,
This topic was too important not to comment and give other nonlawyers a reminder why ‘pleading the 5th’ is not something of which to be ashamed or ridiculed. The interview process in LE training was one that I did not enjoy because it was fraught with instructors giving examples of how to lie and/or use ruses to get confessions—that is not the way any fair-minded professional should comport himself. Unfortunately, my LE supervisors were the least competent LEOs but the most accomplished with devising ruses to entangle potential violators, to include illegal stops, and charging violators for the same offenses that they themselves committed—in double standard actions—as officers.
My granddaughter is progressing well. Fortunately, my son has very good insurance through the successful company he owns and manages. He and my daughter-in-law are demonstrating that they are exceptionally dedicated, fine parents.
I do not visit here as much as before; however, most of the topics and many of the comments are too good to miss so I try to read as often as I can.
Hey there, FFLEO! Good to see you. I hope you are enjoying as much time with the grandbaby as possible and staying cool. I’ve got the video playing in another window and I’ll have to say I am surprised at the quality of the lecture. So far, it all sounds remarkably similar to a speech from my own Criminal Law professor – absent the “Christian” language at the beginning, of course.
Disregarding this lawyer’s Alma mater, the following is the best legal advice within a video regarding the 5th Amendment that everyone should view and heed:
‘Don’t Talk to Police’
welcome to florida
the “do you mind if i search your vehicle” is a stock question here. yes means yes you can search and no means no i don’t mind.
that’s when they scatter your belongings on the side of the road, let the air out of your spare tire and threaten to fine you for littering if they don’t find anything.
my answer is always “i consent to no searches”. which leads to the next question “what do you have to hide”. i don’t even bother with a smartass answer anymore (damned hard for me), and just wait for the next “well i going to run the dog around the vehicle” as if it’s a question.
you also have to make sure to tell anyone else in the car to keep their mouth shut,and their opinions to themselves.
nothing worse than a mouthy passenger
Kay,
I’m not insulting Brian. I’m pointing out the flaws in his statements. That you can’t tell the difference is not surprising, fruit loop. See? Now that was a clarifying statement combined with an insult. English . . . for someone allegedly in the top 1% in reading comprehension, you should really get some. See? Now that was just a straight insult.
BIL
Why are you insulting Brian? Isn’t that “off topic”?
Brian,
Too bad your consent for reality isn’t required.
The Verona WI police came to my house with no warrant and rung the doorbell. My son told me they were looking for me so I sent out to talk to them and then they forced me into their car.
Just before then I had been mowing the lawn in old clothes. My car keys were in my back pants pocket. The officer asked me if I had “contraband” in my pocket and he put his hand on my ass.
I have a bit of a weight problem and my pants were tight. I always thought that he had drugs in his hand that he was planning to put in my pants but that he couldn’t get them in because my pants were tight. I also think that if I hadn’t come to the door and come out right away, which seemed to have surprised them, that they would have come into our house and planted drugs in our house.
RE: Buddha Is Laughing, April 16, 2011 at 1:14 pm
Too bad you can’t control the actions of others before they take them. Unlike a vehicle search, the activities you named do not require your consent. They happen by operation of the natural state of humankind.
################################
I do not consent to your understanding of the natural state of humankind. And what I do or do not accept of existence is purely in accord with my consent.
I do not consent to your defining for me anything about me.
For me to accept your view of “whatever you view,” I guarantee you that I would first have to consent to accepting your view.
Yet, to such views as you seemingly promote, I do not consent, and I decline to consent because I do not consent to subjective experiences of being deceived, coerced, bullied, tyrannized, rejected, despised, denigrated, or otherwise abused.
Because I unambiguously know and understand who I am, I have neither method nor need to tell other people who they are.
Delusional projection of self-construct may yet turn out to be the greatest of all dangers confronting humans.
Delusional projection of self-construct plays magnificently on this blawg? The most common form I have noted yet is, in its core essence, “If you do not believe what I believe, there is something wrong with you.”
Some members of one of the most civilized of all nation-states, the Weimar Republic, and its immediate successor (Hitler, et al.) played that delusional self-construct projection game with the German Jewish citizenry and, later with Jews in conquered areas. Guess what happened?
The Escape From Sobibor, as one example?
The nifty thing I observe happening is the forcing of an either-or choice upon humans and thereby also upon humanity.
That choice, it is my best guess for now, is whether to remain addicted to deception or walk away from it, which walking away I would prefer, if it happens, be done with genuine care.
Some day, perhaps people will wake up and recognize what life actually is, for being adversarial is being adversarial to life itself, so I invariably have observed, without exception.
For me to believe as I observe most people may believe, I would have to consent to so believing. For now, and perhaps for forever and beyond, “No, thanks anyway.”
I find that I was born with a socially-uncorrupted conscience, and it resolutely appears to me that my life circumstances have, however such has happened, allowed me to maintain it socially-uncorrupted.
I cannot yet elude my sense of conscience that your view of “the natural state of humankind” is seriously comparable to my understanding of “the traumatized, socially-corrupted-conscience state of humanity, which traumatized state humanity is striving to overcome”.
So, I do not consent to your view of what requires, or does not require, my consent.
A person in second grade, of age 7 years, who does not yield to deception regardless of repeated, shattering physical and psychological punishments, just might be strong enough to withstand any and all deceptive coercion the whole universe can ever concoct. Does such a person exist? As hypothesis-being-tested, at least one such person may exist, to wit, me.
Great job Nal! It is sad that police cannot be trusted sometimes to follow the law.
Or, you could just turn on some lights.
Too bad you can’t control the actions of others before they take them. Unlike a vehicle search, the activities you named do not require your consent. They happen by operation of the natural state of humankind.
Nal,
I am so very sorry, yet you surely could not have known…
Alas:
I do not consent to being defined by others as an adversary. I do not consent to any person or persons defining another person as an adversary.
I do not consent to being put by others into adversarial relationships. I do not consent to any person being put into an adversarial relationship by any other person or persons.
I do not consent to being defined by others. I do not consent to any person or persons defining another person.
I do not consent to being harmed by others. I do not consent to any person or persons harming another person.
I do consent to being a member of human society in its ongoing work of learning what being human may yet become, which I am guessing will happen through learning and understanding that we all are valid living human social persons in a society and world where changes occur.
Nal,
Again, excellent job on an issue pertinent to all.
Tom,
re: “Friggin’ police state” and the rest of your comment
Don’t get me started…
Thanks for this NAL, including the “Know Your Rights” link…
Yeah – i’m sure he got his pot back, too.
Friggin’ police state. Why don’t they go after the goddamn shyster bankers and mortgage fraud people? Why don’t they go after the big polluters? No, it’s the little guy and the poor schmucks that have to drive (and get bullshit tickets) to work that make all the money for these parasites to live off of.
Good case Nal….I recall cases where…a neighborhood is blocked off and it was an automatic search zone….I thought unconstitutional….but none the less…still upheld to get rid of blight….They upheld it under the Public Safety exception….
I do again like this case…..good result…