We hope the following will not be interpreted as a rebuke of Cooper or his video, much of which we enjoyed. Still, we find it necessary to comment at length on his surprising advice.
Unfortunately, Cooper recommends consenting to searches, which is the worst imaginable strategy for handling a police encounter. His message flatly contradicts the consensus judgment of civil libertarians, and encourages the very behavior Flex Your Rights and many others have been struggling to abate. Hopefully Barry Cooper can be persuaded to reconsider his recommendation that citizens waive their constitutional rights. He should be excited to learn that refusing consent is a viable and prudent option for his audience.
Here is a transcript of Cooper's section on consent searches, interrupted by our detailed reactions:
You've heard your entire life: Refuse consent. Refuse consent. Refuse consent. I don't recommend that. You're free to do whatever you want, but I recommend quite the opposite.
If you've hidden your stash in a hard to find location -- like taught earlier in this DVD -- give the officer permission to search if he asks. Here's why: One hundred times out of one hundred, when somebody refused consent to search to me, they always had something in their vehicle they did not want me to find. It was usually drugs. Sometimes it might be a Playboy magazine or something of that nature. But there was always something they did not want me to see. Law enforcement officers know this.
There's no doubt that refusing consent will often heighten an officer's suspicions. But the officer was suspicious before asking for consent to search. (That’s precisely why he asked!) The argument that consenting will deflect suspicion cannot be sustained. Any officer, including Cooper elsewhere in the video, will confirm that almost everyone consents whether or not they're hiding something.
Cooper's claim that he searched everyone who refused suggests that he repeatedly violated constitutional prohibitions against unreasonable detentions and searches without probable cause. Such misconduct remains common, but it’s not exactly the norm.
Since Cooper's retirement, lawsuits over racial profiling have resulted in settlements limiting suspicionless consent searches in some states and increasing documentation and accountability when such searches occur. Much work remains to be done in this area, but many police departments are more respectful of constitutional rights than Cooper’s notorious Permian Basin Drug Task Force was.
Even though you have the constitutional right to refuse consent -- when you refuse it raises a huge red flag. You could almost call it a huge reasonable suspicion.
Refusing a search can never be called reasonable suspicion. A responsible discussion of a citizen's constitutional rights during police encounters must emphasize that exercising your rights can never be held against you as evidence of wrong-doing.
Though it's not his intention, we fear that Cooper's use of the term "reasonable suspicion" in this context could give many viewers the false impression that their refusal of consent can be used against them in court.
Upon refusing consent, that officer automatically knows now you have something to hide. If you simply say "Go ahead and search my car," he's probably going to make a quick cursory search, and then you'll be on your way.
Again, consent is given so routinely that it cannot contribute to a presumption of innocence. Cooper's terrific traffic stop footage is itself a perfect demonstration of this. It's risky to assume that a consent search will be brief or that officers will overlook Cooper's recommended hiding places, which are now an open secret.
If you refuse consent, he can do a weapons pat-down search of your vehicle without your permission, and upon patting the interior of the vehicle down for weapons, if he finds a marijuana seed or a marijuana pipe or something of that nature or if he smells marijuana, then he's going to search your car without your permission.
Refusing consent does not, by itself, give police the authority to do anything. If police have reasonable suspicion to believe you're armed (e.g. furtive movements, high crime area, etc.) they may perform a Terry frisk of your person. This pat-down does not include your vehicle, nor are police authorized to do this based on your refusal to consent. A weapons search of your vehicle's passenger compartment is only authorized in the course of a probable cause arrest.
If you refuse consent to search, he's liable to get a narcotics detector dog to walk around the outside of your vehicle. If that dog fails to alert -- as you learned in the K-9 section -- he could quite possibly cause that dog to false alert. Then you have no choice.
Drug sniffing dogs are frequently used in this situation, but police cannot detain you in order to bring a dog to the scene unless they have reasonable suspicion (which again cannot be triggered by your refusal to consent). If police threaten to bring in a dog, simply ask if you're free to go. If you're denied permission to leave, everything else that happens is subject to 4th Amendment analysis in court.
Barry Cooper offers some interesting discussion of the misuse of drug dogs elsewhere in the video. Unfortunately, he misses the vital point that refusing a search and dismissing yourself from the encounter is the best strategy. His advice to consent is merely a shorter path to the undesirable outcome his audience is trying to avoid in the first place.
He will also invite numerous other police officers at the scene. The call goes out on the radio, I've heard it a hundred times: "I have a refusal. I have a refusal." And police come from everywhere to figure out how to get in that car, and then they begin a real detailed search.
But any evidence they discover during this "real detailed search" will be inadmissible unless they have reasonable suspicion for the detention and probable cause for the search. If you consent, officers will also come to the scene to assist with the search. The only difference is that by consenting, you've volunteered to be investigated, thereby eliminating any chance you have of challenging it later in court.
That's the most important point of all: Consenting to a search automatically makes the search legal. And if any contraband is found, you can’t suppress the evidence. Waiving your 4th Amendment rights places you at the mercy of the criminal justice system and everything it has to offer. Ironically, Cooper encourages defendants to hire an attorney with trial experience and refuse plea bargains, yet anyone who consented to the search will have no choice but plead out or become an informant.
The failure to explain that consent automatically legalizes the search is a confounding omission given his target audience of marijuana users. Cooper praises 4th Amendment rights in the introduction, but later encourages citizens to voluntarily waive these rights when they matter most.
Civil libertarians have a vital interest in combating the harmful myth that police can do whatever they want. Such perceptions stifle discussion of police accountability and foster a reluctant tolerance of coercive police practices. Fortunately, lawsuits from people who know their rights have been a potent catalyst for reform. A citizenry that is vigilant and unyielding in its defense of constitutional protections is more likely to achieve justice than one which buries its secrets beneath the dashboard while waiving the right to privacy.
With this in mind, we encourage Barry Cooper to promptly revisit the issue of consent searches. It's a brief portion of the video, though it will become longer upon correction. In the meantime, he should consult defense attorneys and report his findings to those who've already purchased the DVD.
With minimal effort, Cooper can dramatically increase the value of his efforts and redeem this otherwise fascinating video.