By Pat Barber

A chief deputy sheriff told me, "We rely on people's ignorance to get their consent." Most folks don't know they have a constitutional right to refuse a police search request ... and a lot of others are afraid to say no.

Just Say No to Searches For the past year, police agencies across Texas have stepped up what they call "consent" searches of vehicles on our highways. The unprecedented numbers of searches are mainly the push of the state's 47 federally funded Drug Task Force(s) with a major assist from the Texas Highway Patrol and local officers. An officer will stop a traveler on some pretext such as a seat belt or speeding violation, or as has been documented in many cases — no valid reason at all, get the driver out of the vehicle, ask, "Do you have any guns or drugs in your car?" And when the traveler answers in the negative, the officer says, "Then you don't mind if I look in the trunk, do you?" The officer is standing there in his mirrored sunshades, black Task Force uniform, pistol on his hip, and the traveler has nothing but a limp ego.

Most people feel intimidated by this kind of pressure. They don't know their rights, believe they will be searched even if they do refuse, and give up. Police officers are not required by law to inform the traveler that he or she has an absolute constitutional right to refuse a search request, that a refusal cannot be used in any way to imply probable cause of criminal activity or that they will be free to leave if they do refuse.

A chief deputy sheriff told me, "We rely on people's ignorance to get their consent." An old DPS trooper friend tells his family and friends to say to these black-shirted and black-booted "storm troopers" (task force officers) the following: "Officer, I don't have anything to hide, but I don't want you pawing through my stuff." Sometimes a refusal will bring threats to get a warrant or a drug dog, but if the officer really had probable cause to search, he wouldn't be "asking" for a search; he would be "telling" you.

However, my data indicates that a firm and consistent "no" will work most of the time, regardless of their threats. An officer stopped my daughter for speeding and wanted to search her pickup, although there was no evidence she was carrying contraband. She told him she was late to meet her vet — that was why she was speeding and that she didn't have time for a search. The officer threatened to go to the JP for a warrant.

When she heard the magic word "warrant", she thought she didn't have any choice. What she said was, "Officer, my father is a lawyer, and he told me that if I ever gave consent for a search, he would kick my butt. I'm sorry; I can't do it." The officer angrily said, "Take your ticket and get out of here." Her quick answer saved her a lot of unnecessary humiliation, and is recommended for three reasons:

1. Her response was funny (although the officer obviously didn't have a sense of humor)
2. It was evident she had access to legal counsel
3. The officer knew she was acting on advice of counsel.

I have had many complaints from average citizens who are upset about the new highway search terrorism. One well dressed lady traveling in a late model suburban was seen standing by the side of the road trying to hold her hair together in a 20 mph wind while officers threw her possessions on the ground. After the officers finished the "consent" search and left, a local citizen stopped and helped her pick up her things.

I've seen vacationing families with children standing in the summer heat in the bar ditch while officers went through their suitcases. I saw two gray-haired ladies standing in the cold, last winter. I've had hundreds of complaints from citizens who felt like they had been mistreated for no reason. I may be old-fashioned, but this kind of dangerous and ineffective police behavior is offensive to me, and I would expect, to most Texans.

The "shotgun" search approach may occasionally net smugglers, but at what price? Most folks don't want to see us turn into a third-world police state where you can't walk across the street without a police dog's nose in your crotch. My main goal is to create a fundamental debate about roadside searches. Do they yield enough criminal cases to justify intrusions into glove compartments, trunks and luggage of law-abiding travelers?

While the police agencies are quick to seek publicity for their busts, data about "failed" (nothing found) searches is suppressed. No police paper trail is kept. If we ever got an accurate assessment of what they are doing, we would likely see an enormous number of citizens are being terrorized and harassed by an ineffective policy. They can't stop the flow of drugs. How far do we allow them to erode our constitutional liberties in an unwinnable war on drugs? Tell your clients to Just Say NO to Searches!

Pat Barber
Attorney at Law
102 W 2nd St.
Colorado City TX 79512

This article is reprinted from DrugSense Weekly, July 23, 1999 #107

See also:

Sarah Rupp: Just Say No to Searches

A Message from Pat Barber re JUST SAY NO TO SEARCHES!
Prohibition: The So-Called War on Drugs Serendipity Home Page