Simple questions, complex issues

February 8, 2012

I think one of the biggest problems I see with people being arrested for almost anything is that while they know the Miranda Rights, they often do not know where the line between consent and probable cause lies.  Police officers are trained to say and ask things in such a way to either get consent or develop probable cause. 

Can you tell the difference between these questions?  Do you know what rights you are giving up by answering them?

1.  "Okay, if I look in your car?" vs. "You don't mind me searching through your car do ya?"

2.  "Step out here and talk to me, would ya?"  vs. "Why don't you step on out here for a minute?"

3.  "You don't have anything like guns, bullets, gunpowder, or large amounts of money on you do you?" vs. "You don't have anything illegal in your car like guns, hand grenades, large amounts of money or anything do ya?" 

Each of these three sets of questions are taken from real life cases.  Let's look at the differences and what the courts have held each of these sentences to mean.

1.  When looking at consent issues courts look at what a reasonable person would believe they were consenting to at the time consent was granted.  The first question has been found to mean that an officer can search the interior of a car, but no packages, locked compartments, or baggage.  The second question has been interpreted to be a consent to search a car, including the trunk.  The two key words are "look vs. searching" and "in vs. through". 

2.  An officer has the right to control the movements of a motorist he has stopped.  He can have you step out of your car, sit in his, stand on the side of the road, etc.  But, when looking at when an arrest has taken place, the more control the officer has exerted over you, the more likely the court will find you have been arrested.  In the first sentence the officer is well within his rights to order you to step out.  But, in the second he requested you to step out.  By requesting you to step out he has made your act of leaving your vehicle voluntary and consensual on your part.  Thus, it becomes harder for you to argue later in court that he was exercising more control over you than what would be normally expected.

3.  The officers in both of these sentences are laying the foundation for a search of your vehicle.  Regardless of what you answer to this question, the next question the officer is going to ask is, "You don't mind me searching through your car real quick then, just to make sure, do you?"  But the scope of the search in each of these sentences is going to be different.  Police are allowed to search where ever what they have permission to search for may be found.

In the first sentence he asked if you had gunpowder and bullets.  Gunpowder is tiny and can be found anywhere.  You may have just literally given the police permission to vacuum your car and send the contents to the FBI for analysis.  You also gave permission to search for bullets.  Bullets may be found in the cracks between the carpet and floorboard, in pockets, glove boxes, and any number of other small places.  By answering the first question, you may have just set yourself up to have your vehicle torn apart.

The second question is going to restrict the search to places where these larger items may be found.  This will serve to narrow the scope of this search, but the officer included money in this question.  Thus, he is going to be able to look for large amounts of money - which is what they are looking for more and more nowadays.

Did you notice anything else about the third set of questions?  Is there anything that strikes you as unusual with both of these questions?  Tell us in the comments.  I will reveal it in an upcoming post.