One very often used tool in the law enforcement tool box is the power to intimidate citizens into voluntarily giving up their rights, usually without even realizing they are doing it.
Police are trained to believe in their authority and trained to perform their interactions with private citizens with confidence and strength. Most people, when confronted by police, experience a nervous discomfort, become anxious, and act in an overly compliant manner because they (rightfully) fear the possible consequences of displeasing the officer. However, this imbalance of power between citizen and officer leads most people to consent without realizing that they are giving up constitutional protections against improper meddling by the State in the private affairs of citizens when a law enforcement officer makes a strongly worded request.
Most of us only encounter these situations during the routine traffic stop. You are pulled over for a real (or perceived) vehicle violation and, after checking your driver’s license and registration, the officer asks if you have any weapons or illegal drugs in the car. When you say “no,” the police officer asks (in the strongest language he can without demanding) to check that for himself.
“You wouldn’t mind if I took a look in your trunk.”
“Why don’t you step out of your car.”
Most people agree to these “requests” because they do not realize they have the right to say “no.”
You Have to Say “No” Clearly
The Federal Supreme Court has ruled in cases like Florida v. Bostick that as long as the police do not force an individual to do something, the individual is acting voluntarily, even if a normal person would feel very intimidated and would not reasonably feel they could say “no.” If you do what a policeman tells you to do before you are arrested, you are “voluntarily” complying with their “requests.” Of course, refusing to comply might lead to a resisting arrest charge, so it is a very fine line to walk.
Unfortunately police will often try to push citizens to accept a search, to the point of ignoring when you say “no.” It is important to say very clearly something like this:
“I do not consent to a warrantless search.”
“No sir, this is a private event/home/place, you may not enter without a warrant.”
This “amateur lawyer answer” (as opposed to simply saying “yes” or “no”) is important, because other cases have held that when an officer asked to search in a confusing manner and claimed he misunderstood the answer “yes” to mean they could search, it was not unreasonable search and seizure for the officer to perform the warrantless search at that time.
Until you say “No, I am not willing to allow you to do that,” you are simply cooperating as a peer with the law enforcement officer who is trying to make the world safer. When you say “no” to a request by a police officer, you are asserting your lawful rights as a private citizen. If the officer demands you comply, then in most cases you have little choice or you will face a resisting arrest charge. Usually, though, the officer will know he cannot force you to submit to a search without a warrant, probable cause, or incident to an arrest, and is likely to continue to try to convince you to comply voluntarily. Only by saying “no,” and sticking to that answer can you retain control of your constitutional right against unreasonable searches.
What Can the Police Make You Do?
What the police can demand of a citizen depends heavily on the context of your interaction with the officer. Generally, police are allowed by the courts to act as any reasonable private citizen would under similar circumstances. They can ask questions, look through windows that they happen to be near, walk or drive in public areas, etc. The line is drawn when they begin to demand compliance, search without permission, or detain people or things.
In highly volatile or dangerous situations, an officer’s authority is much higher than in non-threatening contexts. The Supreme Court has ruled that the police are allowed to protect themselves from potentially dangerous people or situations. This gives the police broad latitude under the justification of concerns for safety or searches for weapons. To that end, officers are allowed to perform pat downs in searches for weapons in certain circumstances. Of course, any authority can be abused, and some officers use weapons pats as a way to intimidate and harass citizens, since it is a power the courts have allowed them to use with little justification. Often an officer will find something during their pat down which is clearly not a weapon, and which they then ask the person to produce. However, this is beyond their Court-approved authority, so technically you can say “no” in this situation.
Also under the ‘concern for safety’ umbrella, police are given wide discretion in asking individuals to comply with simple non-intrusive commands such as “stand over there” or “wait here for a moment.” Of course, the line between whether this constitutes an order or a request becomes very blurred when an officer starts telling people where to go and what to do in a non-threatening environment. Think for example, about situations where police separate two or more people in an effort to intimidate those individuals or obtain conflicting stories. Courts should consider this a “fishing” maneuver designed to justify a warrantless search, not a fair exercise of police authority in a threatening environment, but again, even this distinction is somewhat fuzzy.
In most states, you are required to give your name, but are not required to show the police your ID (unless you are driving a vehicle). Giving a false name is a crime, though, so even if you are afraid that you may have an outstanding warrant or other reason for concern about providing your name, there is no reason to compound the situation by adding other charges to your record. The Supreme Court has said: “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146 (1972).
If you want to avoid long and unpleasant interactions with police, do not give them any reasons to suspect you of criminal activity. Courteously decline to participate in ‘fishing expeditions’ or any other actions you do not wish to perform, but otherwise comply and remain respectful. Of course, police can search you and, if you were in a car, your vehicle as part of an arrest, so if you are being arrested for something it is too late to tell the officer “no.”
What the Police Cannot Do
1. Police are not allowed to frisk for anything except weapons. If, during a weapons pat, an officer discovers something ‘suspicious’ you do not have to show it to them.
2. Police are not allowed to search everyone just because they have a warrant or probably cause to search one person.
3. Police cannot look in areas that are not publicly visible (for example, a car trunk, a glove box, your pocket, an interior room of your house, your garage, a storage locker, etc.) without permission, a warrant, or incident to arrest.
4. Police cannot arrest you simply for exercising your constitutional right against unreasonable search and seizure.