To Give Consent or Not To Give Consent

I am a patriot and proud of what America is supposed to be, but horribly saddened and disappointed by what my country has become. My father fought in the Vietnam War, my brother just finished his third tour of duty in Iraq, and I was once a proud law enforcement officer – I fought our nation’s War on Drugs from 1990 to 1998. Since then, I have realized the error of my ways and no longer do police work. You and I know that it is an unreasonable invasion of privacy to search or arrest anybody for marijuana, yet our courts and government do nothing to protect citizens from law enforcement abuse. Police do not believe that you, as a suspected law-breaker, have any rights. There was no training in constitutional law for me as a police officer. We were constantly brainwashed with the “greater good” argument when it came to discussing suspects’ rights: “It is acceptable to violate civil rights if it leads to a drug seizure because the ‘greater good’ of saving our children from drugs is more important than those rights – rights that are being misused to protect criminals, anyway.” Of course, I now know this argument is flawed and leads to dangerous mindsets. It’s bad government policy in the form of drug prohibition that is causing death and destruction.

Of the total 2,245,000 people in the US prison population (in 2006) approximately 55,000 were incarcerated in state and federal prisons for marijuana, and up to 1,100,000 for drug offenses of all other kinds. Over a million people are locked up for drugs in the so-called “land of the free”, where our Declaration of Independence says that “liberty” and “the pursuit of happiness” are inalienable, fundamental, the basis upon which all other laws and rights proceed. Yet sixteen percent of all life sentences in America today – one in six – are for “drug offenses”, and Americans can even qualify for the death penalty if convicted of producing or trafficking more than 132,000 pounds (60,000 kilograms) of marijuana. (If Marc Emery were an American he would face the death penalty, because the DEA is holding him responsible for 1,100,000 pounds of cannabis – even though he sold only seeds!) Not only do people die behind bars, lives are also ruined outside prison facilities as a result of this mass imprisonment. I can recall the horrified faces of children after I smashed into their homes to arrest their parents for marijuana; the kids were herded away to foster homes and government agencies while their parents were sent to jail. If the government didn’t take the house and assets, lawyers would drain the parents of whatever money they had. The Drug War has imprisoned hundreds of thousands of parents, leaving a staggering number of children without a mother and/or father. Those young people are missing an extremely important influence in the household, and that often leads troubled youth to seek leadership elsewhere, perhaps getting them involved with gangs and committing a crime, and ultimately landing them in the prison system – maybe with children of their own on the outside, perpetuating the vicious cycle. Did you know there are even families living together in prisons, as babies are born to incarcerated mothers? I’m not sure if that’s better or worse than completely breaking up families, but if anything it’s a symbol of our perverted prison industry and justice system.

When I think of my own children growing up in this world, I am concerned about their freedoms and rights and appalled at the system I was once part of. As such, I’m determined to undo as much harm as possible – and for me that means fully confessing my sins and offering insight into what police do to get you to incriminate yourself and play right into their hands… or handcuffs! Bobby Mims, a very skilled defense attorney, explained my goals best: “Barry is trying to keep people out of jail, not prepare them for the courtroom!”

There were two things I did regularly as a narcotics officer to manipulate people’s 4th Amendment right of protection against unreasonable search and seizure. I will share those tactics to demonstrate how little respect police have for the 4th Amendment, and also provide tips on how to counter such police abuse. These manipulative tactics were not formally taught in classes, but were shared amongst officers in the privacy of police station hallways and patrol cars. The scenario is written as though I were still a narcotics instructor outlining to a new recruit how to effectively make drug seizures.

MISSION: To manipulate citizens into giving consent to search their homes. TACTIC: You can only raid a home if a credible informant saw or purchased drugs from the location. Mere suspicion and an anonymous tip – such as Crime Stoppers – is not legally enough to obtain a search warrant. Because we cannot get permission from a judge to force entry, simply knock on the door of the suspected house and engage in a conversation. These are called “Knock and Talks” or “Tap and Raps.” When they open the door, be very friendly as you explain why you’re there.
Officer: Hello, I’m Investigator Cooper with the Permian Basin Drug Task Force. Is the owner of the house present? (Establish ownership.)
Suspect: I’m the owner. (They are always nervous after hearing you’re a drug cop, so use this to your advantage.)
Officer: I’m here because I heard there are drugs in your house, and instead of taking the time to get a search warrant to have 20 of us raid your home tonight, I thought it would be better for your kids if you just told me what you have, and we will go from there. (At this point they usually admit to their crime and show you their stash. If not, the reply is usually…)
Suspect: But I don’t have any drugs, officer. (The more polite or understanding they seem, the more suspicious you should be. A truly innocent person shows anger when being accused of something they haven’t done. Criminals often side with
police by trying to appear as law abiding.)

Officer: Then I can search your house? (Say this boldly, and don’t be ashamed to do what you are doing.)
Suspect: Ah, well, umm… I’d rather not! (Remember, any hesitation or wavering while answering this question – we call it a ‘bobble’ or ‘bobbling’ – are a sign they are likely hiding something.)
Officer: Okay, I’m going to get on my radio and call for backup while I obtain a search warrant, because I smell the odor of marijuana coming from inside your home. You can just go ahead and let me search really quickly, or put me through the process of obtaining a warrant and everybody goes to jail and we will seize your home. In fact, I suggest you go ahead and show me your stash now, because I can tell you’re lying and trying to hide something. (I’ve never had a person challenge me and declare I must go and get a warrant; they have always given me their stash or allowed me to search. My largest bust on a ‘knock and talk’ was 235 pounds of pot! Note: threatening to bring drug dogs doesn’t work at households the same way as it does with vehicles, because courts have ruled a K-9 alert on a house is not probable cause for a search.)

I’ll never forget the first NORML (National Organization for the Reform of Marijuana Laws) member I encountered during one of these unfair tap and raps. Upon opening the door, the suspect stepped onto his porch and locked the door behind him; his action was alarming to me since I had never seen it before, and by locking the door he was communicating that he did not want me in the house. That meant he was certainly hiding something, so by claiming I smelled marijuana when he opened the door, and then threatening him with a search warrant, I soon talked him into giving me his stash. An attorney with good intentions had written the pamphlet I found on his dresser next to his half-ounce of pot; unfortunately, that attorney was not present to intimidate or argue with me, and therefore did not help him. At the time, I had never heard of NORML (I now support NORML and am currently a member of the Dallas, Texas Chapter), but years after leaving law enforcement I learned that the “lock the door behind you” technique was being taught to reformers. Having been part of the police gang, however, I know that a number of attorney tips work only on paper and not in the field. NORML didn’t worry me as a police officer – it’s the ACLU (American Civil Liberties Union) that makes cops nervous! They have a huge team of lawyers and are always watching, and suing, the police.

It is a much better idea to never, ever open the door to police. NEVER! I cannot stress this enough. You can answer the door just don’t open it. How? I suggest you converse with the cops through the door or a nearby locked window; if this is uncomfortable for you, ask for a police dispatcher to call your phone so the cop can express what he wants. (This advice is much more thoroughly explained in my previous article “Protect Your Stash At Home”, CC #68 – order a back issue on page 94!) If you open the door, a cop can use the “I smell marijuana” trick, which can lead to a genuine search warrant. If they already have a warrant, ask them to slip it under the door, and if they don’t have a warrant, you don’t have to let them in. I even advise that if a cop slides a search warrant under your door, read it, stand back, and advise them to force entry! Never open the door to a cop. It is not safe. Citizens are under no legal obligation to let law enforcement into their home. While a 911 call gives the officer a “right to be there”, it does not give them the right to enter your house. If the officer gathers clues telling him a person’s safety is at risk – such as hearing screams, seeing physical signs of violence or an assault, or not seeing the person who called in a panic – having the “right to be there” because of the call, he may force entry. But a simple 911 hang-up with no answer at the door, or a calm person at the residence assuring everything is okay, means the officer must leave. In the US, police have no other legal choice.

In Canada, however, police will insist on entering the home to search around after any accidental or supposed 911 calls. I say ‘supposed’ because Canadian police have been known to claim that “a 911 call came from this house, we have to ensure everyone is safe” and gain entry. Over 200 busts have been done that way since 2002! The worst part is that Canadian courts have upheld busts made by police when they invent an emergency 911 call that was, in fact, never made. Another scam in Canada appears to be police bartering with lowlife criminals arrested in some dubious marijuana or drug related charge. The police pry for information about where marijuana is being grown, which mysteriously leads to a call allegedly coming to police “from neighbors” that a home burglary is in progress. Police then enter the “burglarized” premises where they find a grow garden or dried marijuana, and can make a conviction and arrest without the need or use of a warrant. It is also very common for police in Canada to get a warrant over the phone after the fact, meaning they illegally enter, find contraband, then call in to the pliant Justice of the Peace – who, incredibly, does not tell the police that a warrant after the fact is illegal and unconstitutional and recommend they withdraw, but instead gives them the warrant!

MISSION: To manipulate the citizen into giving you consent to search their vehicle. TACTIC: The first thing to remember is you can search any vehicle you choose… and I mean any vehicle. Hundreds of seizures are made that way! There are easy ways to get suspects to give in to a search, especially if they’re in possession.
Officer: Good evening sir. The reason I stopped you is because I noticed you failed to maintain a single marked lane. (Whether they did or not, this is a perfect probable cause to use for initiating a traffic stop. If you feel uncomfortable lying about the swerving, then just follow the car long enough until it does wobble – which is usually from nervousness because they’re being followed by police.)
Suspect: Oh, I’m sorry officer, I thought I was driving pretty straight.
Officer: Nope. You weaved over the highway marker back there. Maybe you’re just tired or something; but no problem, just let me see your driver’s license and insurance from the glove box, and you’ll be on your way with a warning. (Make sure to scan the glove box for evidence as they open it. The motorist should become happy at this point because he believes a simple review of his driver’s license and insurance will result in his quick release and no ticket. This helps the suspect relax and calm fears that would otherwise cause him to get defensive and prepare for a lengthy police encounter. Always issue the warning citation before asking for consent, because the courts have ruled the motorist is actually free to leave after being issued the citation, and granting consent to search while free to leave is proof he was not coerced.)
Officer: Sign here, please. This is only a warning, and doesn’t cost you anything. We’re mainly out here looking for contraband such as drugs, drug money, and weapons. Do you have anything like that with you today? (If the suspect replies with any answer other than a sharp “No,” be suspicious. If he bobbles or seems unsure, be suspicious.)
Suspect: Ah, well, no – of course not. (Suspect bobbled and was unsure, so he’s hiding something.)
Officer: Then you won’t mind if I take a look through your car? (Same as above. If the answer is anything but a determined “no” or if they bobble before giving you permission, be suspicious.)
Suspect: Well, actually, I’m kind of in a hurry to get home… my wife is feeling sick. (These are the two top reasons drug couriers give as an excuse to decline the consent. If a motorist ever mentions being in a hurry, or someone is sick, be highly suspicious.)
Officer: I won’t take long, and you have the right to refuse consent. But I have the right to walk my drug dog around your car – and let me tell you, he doesn’t miss anything! In fact, if you have as much as one marijuana seed in your car, he’ll alert and then we’ll have to search your car without your permission. Now, do you have anything in there I should know about, or are you going to put me through all that trouble? (Say this in a manner that communicates you can turn into an asshole really quickly if they don’t give in to your demands. This strategy also sets up the idea that the motorist can choose whether the dog or cop makes the search. The motorists in possession will always choose a cop search because cops are human and dogs are superhuman. We know the dog will not alert on one tiny seed, but the motorist doesn’t. Perception to them is reality.)
Suspect: Oh no, Officer, I didn’t mean it that way – of course you can search. And, by the way, I understand you officers have a hard job, and I don’t want to make it harder. (You now have consent and a motorist understanding what you are doing. Be suspicious of the “sticky sweet” motorist like this, as it’s a sign of trying to get along with you because they are hiding something. Generally, the motorist who displays agitation and is pissed off at your actions is innocent.)

When a drug cop asks for permission to search your auto, there are only two options: Give permission to search or deny permission to search. This has always been a hotly contested issue! The “rule of thumb” has been to always exercise your 4th Amendment right and refuse consent to search. This has been mandated by the reformers and preached by their attorneys: always refuse to
consent, in every situation. But I have a problem with that inflexible advice, and hope to convince you that refusals are not the only viable option to these types of police encounters. When I was a cop and pulling people over, motorists who casually and politely gave permission to search as though there was absolutely nothing to hide would get a quick look-over and let go, because they were considered an unexciting, fruitless exercise (from a police perspective). I would be brief with them in order to get back on the road making busts… which was much more likely with suspects who refused consent to search!

We must begin changing our strategy in regards to how we deal with law enforcement, and more importantly, how we teach others to deal with law enforcement. Although refusing does work in some instances, it rarely stops the police from searching you. In eight years of policing, I never allowed a motorist to leave after they refused to consent to a search. NEVER. To cops, that represents allowing the suspect to disobey authority and get away with it. As a police officer, I was never punished for holding up a suspect who refused consent, nor did I ever lose evidence in a suppression hearing due to illegal searches. The unfortunate truth is that courts do very little to uphold the 4th Amendment and rarely suppress evidence gained through circumventions of citizen rights. In my experience, very few suspects beat their case on being searched illegally; refusal to search most often does not offer protection, especially in this modern-day Police State of America. I really believe that consenting to a search when you’ve been smart in hiding your stash can offer much more protection than refusal to search ever can. When I first released my “Never Get Busted: Traffic Stops” DVD, I explained that advice clearly: if a person has a small amount hidden really well in their automobile, it is a better idea to give police permission to search than to refuse – for the same reasons I explain here. Some reformers and attorneys who steadfastly endorse refusing all searches really got upset with me, claiming I had given the worst advice possible and could not be trusted by anyone. The problem is that a lot of those people learn all about rights, laws, and rules meant to protect citizens… but forget that our police and government don’t care about rights, and control the laws. We all know that the Drug War certainly doesn’t play by any rules. Thankfully, I have met more reformers and attorneys who regard my advice as prudent in certain circumstances. They realize refusing consent only triggers more prying, more searching officers arriving on scene and guaranteed K-9 sniff searches, leaving very little chance of your stash going undetected.

Jeff Steinborn, one of NORML’s board members and drug attorney for 40-plus years, says, “I see where Barry’s point is valid in the sense that the problem with dogs is they are a way for an unscrupulous officer to completely circumvent the 4th Amendment and the judicial scrutiny it demands. The phrase in America ‘No, you can’t search my car’ doesn’t always mean you won’t get searched.” In his decades of defending pot people, Steinborn has seen every scenario and trick, and realizes refusing consent is sometimes meaningless because of the huge powers given to K-9 teams (thoroughly covered in my article “Understanding Drug Dogs” in CC #67). Steinborn does insist that he has won at least a dozen cases in the past four years based on cops searching when told not to do so. “In many, if not most, cases it gives your lawyer a better chance of winning on down the road if you refuse consent,” he claims, which I never saw in my personal record-making drug seizure history. But he does concede I have a point: “Nevertheless, there are clearly times you have to use your judgment and decide if it is better to resist or cooperate.”

Here’s a non-controversial (and somewhat entertaining, though possibly a little costly) tactic I think should be employed more often by Americans. If you are pulled over and not carrying any contraband, act suspicious and refuse when asked for consent to search. If the cops use claims or K-9s to manipulate their way into your car and find nothing (drug dog alerts are often false, as covered thoroughly in CC #67), you can sue them for an illegal search – although litigation can be expensive, time-consuming and emotionally draining. But trust me: cops are highly allergic to lawsuits, and avoid them at all costs. I believe jamming our federal courts with litigation against the police is one of the most highly overlooked weapons hidden deep in the war chests of Americans. A large volume of lawsuits complaining of police misconduct – specifically, searches and arrests for non-violent drug offenses – would cause alarm bells to ring in police insurance companies, state legislatures, the US Congress, the Federal judiciary, and the Justice Department. My next column will detail the behind-the-scenes effect lawsuits have on the police, and will also explain how a US citizen can file a lawsuit in Federal Court in less than a week and for only $350! It really works – I did it myself, and can’t wait to teach you how and why!