You should stop assuming things.Perna: You don't fully understand how warrants work.
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You should stop assuming things.Perna: You don't fully understand how warrants work.
I'm going to regret this but... what about the time and PITA when you give that consent and you get wrongfully arrested? I know of a guy that just got arrested for "possession of an unregistered machine gun" after a consent vehicle search. It was an AR style.22LR in factory semi-automatic configuration. The cop, who didn't know what he was looking at contacted the DAs office and was advise that it was a machine gun and that "no one needs a 25 round (!!!) magazine". As far as I know this guy was sitting in jail several days later because he couldn't make bond. I’m sure that was a pleasant experience---catching strep, showering with weirdo’s, etc… He'll walk on the charge because it's bogus but he was in jail for at least a few days. He may or may not sue the PD for false arrest but that's another topic.
If you refuse a consent search of your vehicle the officer can not legally detain you absent a reasonable suspicion that he/she can document and articulate in court. Fishing and random hunches don't count. He/she can search based on reasonable suspicion which is less than probable cause because of the moveable nature of the vehicle. If someone holds you for 2 hours waiting on a K-9, they don't have reasonable suspicion or PC because they would have already searched your vehicle under the Carroll doctrine warrantless search exceptions. If you are being held for 2 hours, in cuffs or not, absent a physical vehicle search revealing something suspicious like a hidden compartment, you have been wrongly arrested. The courts have ruled that anytime you are not free to leave, even when that just means your drivers license is still in the officer’s hand, you are under "arrest" for the purposes of giving consent. Two hours, cuffed, in the back of a police car is an arrest---period. If they let you go because they didn't have reason to arrest you in the first place, you have been falsely arrested and that's a violation of your civil rights. Most people let it slide because they are just happy to be going on there way...
The vast majority of cops are good guys/girls who only want to do what's right. A lot of these good guys/girls are pretty clueless when it comes down to the details of what is legal and what is not relating to firearms. I was called in one time when an 18" Mossberg and a MP-40 were left abandoned in a moving van. The ATF was there as well as the local PD. They were pretty spun up about the "sawed-off" shotgun (which was legal) and didn't even have a clue/concern about what the MP-40 was (an unregistered bring back from WW2). I told them the shotgun was legal and did a quick function check on the MP-40. The ATF guys called their tech branch who ran them through the function check I had just done and confirmed what it was based on markings, description, etc. The "owners" were worried about the shotgun being legal but also had no clue about the "old gun" that grandpa brought back from WWII. I advocated against charging them and they were not charged with state or federal violations. The MP-40 was seized and destroyed. Had I not been there, maybe they would have been and maybe they wouldn't have been charged. Literally, the randomness of me dropping by the office for something and getting called in to look at the guns saved someone's bacon. Had some anti-gun guy been there, I imagine that poor Army Captain would have been indicted and returned from Kosovo under federal arrest instead of serving his country and probably going on to do well with his life.
Another great one comes from a long-time friend who was helping ATF/DEA conduct a massive warrant service and round up. While the warrants were valid for the searches, the point is the cluelessness of most LE when it comes to firearms. Apparently the ATF had found a "MP-5 machinegun" (the ATF SA's own words) during one of the searches. My bro went over to check it out because finding a MP-5 would be pretty cool among all the Hi-Points and crap guns. The "MP-5 machinegun" turned out to be a SKS with a detachable magazine. This was a sworn, badge-carrying ATF agent that made that mistake. I don’t fault him for it and it got straightened out without further complications.
All the ATF guys I can remember working with on joint cases were really nice, good old boy types that I genuinely got along with but I would certainly think that not everyone in that agency, or any agency, always has my best interest in their minds.
You shouldn't risk your freedom, your livelihood, or your family for a possible mistake on the part of LE. Some guys are asses who don't care about your rights, some guys will assume you are guilty because you are (fill-in-the-blank), and the overwhelming majority will honestly mean well but may just plain make a mistake.
The bottom line is that you should follow the law and you shouldn't have anything to worry about. That said, I would never, ever consent to a search of my vehicle or home. If the police have reasonable suspicion (vehicle/Carroll) or Probable Cause, they will search you without any consent required. If they don't have RS/PC, they are just on a fishing expedition and generally don't have a legal reason to conduct a search or get a warrant.
Besides that, it's sloppy police work to not get a warrant when you could have legally obtained one. A warrant signed by a magistrate/judge will almost always survive scrutiny better than a consent search. Consent searches are usually fishing expeditions and the easy way out.
I say this having put at least a couple dozen people in jail for at least a couple of hundred years combined, in state and federal courts, in my past life. Most were involved long-term investigations but some were based on consent searches because the suspect thought I was “a nice guy and being straight with them”. Those consent searched made my life easier but those guys are still sitting in prison.
Act right, don't break the law, and don't open yourself up for possible issues because you aren't willing to assert yourself. Would you want the IRS to audit you even if you know you’ve been paying your taxes? I’m guessing not…
Just to reiterate.
http://www.youtube.com/watch?v=6wXkI4t7nuc
officers talking about consent searches:
http://forums.officer.com/forums/sho...d.php?t=142989
Cliff Notes:
Dont ever consent. If they have to ask for consent that means they dont have anything in the first place, but will "fish" for stuff if you let them
I would ask for consent to search residences if it was a relatively fresh call and I wanted to get there more quickly. If the resident didn't consent and I had PC I would then go get a warrant. In any case where it was something I developed over time and there was no pressing need to get there "right now" I would get a warrant before I went to the residence the first time. It makes the search cleaner to have a warrant even if the resident would have consented. In the OP's case there was plenty of time for the BATFE agent to get a warrant before going over there IF HE HAD ENOUGH FOR PROBABLE CAUSE.
No, telling them "no" won't necessarily make them leave and not come back but if they don't have PC in the first place you saying "no" won't automatically add to what they need to establish PC.
Last edited by sjohnny; 04-10-10 at 09:35.
I hear you buddy. The guy shares a story and few can refrain from Monday morning quarterbacking him into oblivion. I think it's a fu*king joke.
And he stated he didn't see or hear of a search warrant, which is no guarantee there wasn't one. Should he have asked? Of course, but that still doesn't mean there wasn't one.
That said, once again we have also been give some very sound advice from those that are in the know. A good reminder of how to proceed if we are ever so unfortunate (which sadly I have been to a degree). Just remain courteous at the very least, it will often minimize the damage.
"Facit Omina Voluntas = The Will Decides" - Army Chief
Don't pay any attention to me, I'm just stopping in to make sure this thread stays on track![]()
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