Rodriguez v. United States

On Tuesday the Court held in Rodriguez v. U.S.┬áthat suspects cannot be detained beyond the scope of a routine traffic stop for the sole purpose of performing a dog sniff. The 6-3 ruling is indeed a big win for the 4th Amendment. But our old friend and former-Flex Associate Director Scott Morgan emailed me a […]

What Happens AFTER You Refuse a Police Search?

Flex Your Rights has been working for many years now to educate everyone we can about the importance of refusing police searches and otherwise knowing and asserting your constitutional rights when confronted by police. Unfortunately, even if you handle a police encounter perfectly, things can still get pretty ugly. This video discusses how to handle some of the challenges you can run into after asserting your rights:

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Asset Forfeiture = Stealing From Innocent People

Asset forfeiture laws allow police to confiscate property which is believed to have been obtained through criminal activity. The idea is that people who break the law shouldn’t be allowed to profit from their crimes. Unfortunately, asset forfeiture requires minimal evidence, often resulting in people losing property to law-enforcement without even being charged with a crime. Despite reforms at the state and federal level, we continue to hear horror stories about police taking advantage of these policies and confiscating property from innocent people.

As the struggling economy takes its toll on local law-enforcement budgets, police face an increased temptation to abuse their forfeiture powers. Mix in a little racial profiling and the situation quickly escalates into a shocking pattern of gratuitous civil rights abuses:

TENAHA — You can drive into this dusty fleck of a town near the Texas-Louisiana border if you’re African-American, but you might not be able to drive out of it — at least not with your car, your cash, your jewelry or other valuables.

That’s because the police here have allegedly found a way to strip motorists, many of them black, of their property without ever charging them with a crime. Instead, they offer out-of-towners a grim choice: voluntarily sign over your belongings to the town or face felony charges of money laundering or other serious crimes.

More than 140 people reluctantly accepted that deal from June 2006 to June 2008, according to court records. Among them were a black grandmother from Akron, Ohio, who surrendered $4,000 in cash after Tenaha police pulled her over, and an interracial couple from Houston, who gave up more than $6,000 after police threatened to seize their children and put them into foster care, the court documents show. Neither the grandmother nor the couple were charged with or convicted of any crime. [Star-Telegram]

It’s a perversion of justice on several levels. First, nearby Shreveport is a popular gambling destination, thus it’s common for motorists in the area to travel with larger-than-usual amounts of cash. This is perfectly legal, of course. Given that officers have confiscated property from 147 people who were never charged with a crime, it seems impossible for police to genuinely believe all of them were involved in something illegal.

Worse yet, when civil rights attorneys began investigating the situation, they were able to locate 40 victims of the forfeiture policy and only one was white. Racial profiling appears to dictate which motorists are targeted for asset forfeiture, as has often been the case in other high-profile forfeiture controversies.

How to Protect Yourself

Unfortunately, if you’re caught in an out-of-control situation like this, there’s no easy or perfect way to handle it. The first and most important step is to remain calm. Becoming agitated will only escalate the situation, so stay cool even if you’re being treated unfairly.

Keep in mind that police will often use threats and intimidation to convince you to waive your rights. In a forfeiture situation, officers will often claim that you’ll be charged with money laundering if you don’t sign over the property. Don’t buy it. If they had evidence to charge you with a crime, chances are they would already have placed you under arrest. Ask to speak with an attorney and don’t sign anything.

If you’re arrested or any property is taken from you, contact a lawyer immediately.

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Refusing a Search Doesn’t Mean You’re Guilty

People who’ve had bad experiences with police have sometimes responded negatively to our materials, arguing that police will simply take things to the next level if you refuse a search. Here’s an interesting example from Florida, in which police were forced to drop the charges after wrongfully arresting a suspect who refused a search:

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Rachel Hoffman: Another Reason to Know Your Rights

ABC’s 20/20 covers the tragic death of 23-year-old Florida girl, Rachel Hoffman. Caught with what the Tallahassee police chief described as “about a baggie” of marijuana, she was tricked/blackmailed/threatened into becoming a police informant.

The chief blames Rachel for her death, repeatedly calling her a drug criminal. But it is clear that he is a scoundrel defending incompetent, callous officers who sent a sheep into a lions’ den.

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We Support NYPD’s Plan to Use Written Consent Forms

Since many of our supporters may be skeptical of NYPD when it comes to matters of search and seizure, I’d like to clarify that this is a very good thing:

The New York City Police Department wants suspects to sign a consent form before searching their homes or cars, a move that eliminates the need for a warrant and is meant to provide police a layer of legal protection, Newsday has learned.

The initiative was put in place because consent searches are often challenged at trial – and jurors too often believe the suspect’s claim that police never got permission to conduct the search, police sources said.

At the same time, sources said, there has been concern within the NYPD about a handful of cases in which an officer’s truthfulness was recently called into question. [Newsday]

Written consent policies are a win-win situation for police and the public. When consent is given in writing, police have an easier time demonstrating in court that consent was given voluntarily. Since evidence seized during a consent search is almost always legally admissible, defendants challenging such evidence must argue that consent was given involuntarily or not at all. As a result, police spend a considerable amount of time in court defending the manner in which consent was obtained. A written form goes a long way towards resolving such conflicts.

For the citizen, written consent provides a quick reminder that permitting searches is optional, while simultaneously creating an added layer of protection in disputes over whether consent was given voluntarily. The form will go a long way towards resolving widespread concerns about police erroneously claiming to have received consent before conducting a search.

Finally, there’s an additional important point illustrated here. As Newsday reports, “jurors too often believe the suspect’s claim that police never got permission to conduct the search, police sources said.” For anyone questioning the viability of refusing consent during a police encounter, this should go a long way towards explaining how asserting 4th Amendment rights can help citizens achieve a more desirable outcome. It serves as a helpful reminder that, even if police violate your rights and search despite your refusal, any evidence they discover can be effectively challenged in court. Obviously, this is a frequent occurrence if NYPD cites such outcomes as a reason for moving towards a written consent policy.

Given the significance of the citizen’s decision whether or not to permit police to look through his/her belongings, a written form is just the obvious, common sense approach to establishing whether consent was given.

Update: Pete Guither at DrugWarRant has a good post discussing the NYPD policy and explaining why it is never in the citizen’s interest to consent to a police search.

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