When close is good enough
There is perhaps no more effective tool in law enforcement than the request to search. It never ceases to amaze me that people will allow an officer to search their car knowing full well they are going to find dope.
While common sense suggests you would never give consent when you have something you don't want found, common sense is out the window when you are stopped by the police. There are a number of psychological principals that officers know - and can manipulate. They use those to get otherwise intelligent people to do something they know is not in their best interest.
So what happens if you refuse? A recent case from the Court of Criminal Appeals shows you better be clear about. If there is any doubt, the officer apparently gets to assume you consented. The case is Meekins v. State. Mr. Meekins was stopped for failing to signal a turn. He was asked for consent to search his car SIX times. Finally the officer says he thought Mr. Meekins said yes, but admitted he could have said "I guess". He challenged the search, and the Court of Appeals actually agreed with him. Unfortunately for him the Court of Criminal Appeals didn't go along.
The rule in appeals from decisions on motions like this is that the trial court gets the benefit of the doubt. In other words, if there was a good reason for doing what they did, the court assumes they used that reason - whether they did or not. The reviewing court also assumes the judge resolved any factual issues in favor of the decision. In this case, the judge didn't say why he denied the motion - but he doesn't have. The Court held it would be reasonable to hold either way i.e., he either consented or not.
The rule in most situations is that a waiver of constitutional rights must be clear; you must know what you are doing, and clearly waive your right. The exception is the Fourth Amendment - the right to free from unreasonable searches and seizures. The officer doesn't have to tell you you have the right to refuse, and now the waiver doesn't have to be clear.
Roadside encounters are the most common contact most people have with the police. You have rights, which officers can get around by simply asking for permission. Don't give it - just say know.
