In response to my previous post, Barry Cooper acknowledges that refusing consent can work, but maintains that this is a rare outcome. Similarly, WindyPundit notes on his blog, and in comments here, that recent Supreme Court decisions have dramatically weakened the 4th Amendment protections of motorists. While we recognize and lament the legal and practical obstacles citizens face when asserting constitutional rights on our nation’s highways, we can coherently defend refusal as the most prudent option for any motorist confronted with a police search request.
Admittedly, evidence of widespread successful refusals is necessarily anecdotal. Despite a dramatic increase in the collection of traffic stop data recording race, reason for the stop, whether a search was conducted, authority cited for the search, etc., no police department collects data on refusals. Some refusals become documented probable cause searches, the rest go unrecorded because nothing happened. A non-search is a non-event, which eludes the mechanisms that exist to record such things.
Our perception that refusal frequently prevents a search arises from correspondence with our supporters, testimony from current and former officers, and the countless experts and attorneys with whose assistance we’ve developed our materials. The consensus is that a non-search is a likely result when the citizen courteously and confidently refuses consent and officers are unable to manufacture probable cause by other means. Outcomes vary depending on the department and individual officer, but it is precisely for this reason that advising blanket consent to a national audience poses unacceptable risks.
Analyzing the viability of refusing consent also requires examination of post-arrest stages during which the initial refusal becomes advantageous to the arrestee. WindyPundit has cited the Supreme Court’s rulings in Whren and Atwater as examples of reduced 4th Amendment protection available to motorists. He’s right, but when the Court oks pretextual policing, knowing how to refuse consent becomes more important, not less.
Whren, which permits pretext stops, and Atwater, which upholds arrests for minor traffic violations, can be viewed collectively as creating a situation in which police can profile you, stop you for any traffic violation, perform a custodial arrest, and (via Belton) search your car incident to the arrest. This combination has been cited by Justice O’Conner and others as a frightening legal blueprint for racial profiling. I’ve been complaining about it for years.
Fortunately, none of these cases involved a citizen who attempted to assert 4th Amendment rights. Given the Court’s consistent rejection of refusal as evidence of wrong-doing, an Atwater arrest following refusal of consent poses a unique constitutional question that’s never been addressed by the Court. Furthermore, Atwater is grounded in the observation that such arrests are scarce, and that many police departments already prohibit them. This precedent has not led any of the many terrific defense attorneys we know to suggest any revisions to our materials.
Yet Barry Cooper unflinchingly characterizes our information as a one-way trip to the big house:
Each individual person must decide if he or she wants to continue traveling down the highway or go to jail by “flexing their rights.” My dvd is titled “Never Get Busted Again” not “FLEXYOURRIGHTSALLTHEWAYTOJAIL!!!
The obvious refutation of this claim is that it isn’t happening. After more than 3 years and more than 1 million viewers, his prediction hasn’t panned out. Our viewers’ success might surprise Cooper, but not the numerous experts who’ve endorsed our information. Afterall, it was the observation that this information helps people which led to FYR’s formation.
An admission from Barry Cooper’s attorney Bobby Mims that “Barry is trying to keep people from going to the courtroom. He is not preparing people for the courtroom” is revealing in this regard, since any complete discussion of handling police encounters must address the post-arrest consequences of the proposed strategy. Mims’ remark is a tacit acknowledgement that Cooper’s advice weakens your chances in court if you are arrested. Indeed, as Cooper probably knows, the only reason officers are trained to vigorously seek consent is because it’s much harder to secure a conviction without it. Cooper bears a strong moral obligation to disclose this fact to his audience promptly. Think of it as a wearable dash cam… the best body camera records what you see for your protection and security.
With these issues in mind, let’s recall the narrow set of circumstances in which Cooper’s recommendation of consent actually applies:
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.
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.
I don’t know which is more anomalous: the marijuana user who routinely and diligently buries all contraband in the bowels of the vehicle, or the police officer who sucks at doing consent searches. Let’s not forget that this is the premise from which his whole ‘everybody consent to searches’ doctrine has arisen. I assume he’d recommend refusal in any other situation, but he hasn’t yet.
No, I don’t think Barry Cooper’s a cop. Yes, I agree with much of the rest of the video. No, I don’t care if he makes money off of this. But I’ll remain frustrated until he responds more substantively to the numerous concerns we’ve raised.
My feelings about all of this weigh heavily on whether Cooper chooses to make this information available to his audience.