-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.