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FastFred Ruddock - www.fastfreds.com
Join FF's MC Rights Ezine email list at
http://www.fastfreds.com/join.htm
"I learned my lesson well. You see, you can't please everyone, so you
got to please yourself." ~Ricky Nelson
_____________________________________________________________
Apathy or Ignorance?
By Hawk and Spotman,
Sons of Liberty Riders
http://www.Solriders.com
Will apathy, ignorance or an overbearing government be the most
difficult problem in the Motorcycle Rights Movement to overcome in the
future? Apathy runs rampant in the Motorcycle Rights community. we all
know that. And we also know that our overbearing government is still
trying to legislate us out of existence.
Sure, we all work hard "for the cause" right? We lobby, we write
letters, we go to meetings, we work hard at our events.but are we
forgetting the uninformed? This may very well be our largest missed
opportunity and it's right there for the taking. We all spend time on
runs, in bars, the bike shop and generally around folks who have a vested
interest in bikes. YET more often than not they are uninformed (about the
major issues that affect us all) and therefore uninvolved. We only
managed
to get 44 U.S. House Reps to sign onto the Shimkus/Strickland letter
stating the MRF's position on the impending EPA legislation. 10% - where
was the other 90%? It's no wonder we didn't fare well in this battle.
What
will Bikers do when motorcycles are finally outlawed by the safety
nazi's?
Most will give up and moth ball their motorcycles as art work or sell
them
to the highest bidder who will put them in a "collection".
And some will never give in!
For approximately $50.00 per year you can make an impact on the future of
motorcycling by joining your State MRO and the Motorcycle Riders
Foundation (MRF). Not only do you give much-needed operating capitol but
also the most important thing is you add yourself as a member to the
membership roles.
Increasing membership roles could actually be more important than the
money. You give the leaders of that organization the ability to lay claim
to X number of members. The larger the membership, the more horsepower
the
organization has when it comes time to step on the gas in an attempt to
make changes within government.
Why isn't EVERY motorcyclist a member of a rights organization? Is it
apathy within the Motorcycle Rights movement? Is it the fact that "we
don't have a helmet law" so why should I bother? Is it the fact that the
little "clique" that runs the show wants all the power, doesn't want any
help or doesn't want folks who might "rock the boat"? Is it the "I pay my
dues, let the State Office take care of me" syndrome?
Or is it just plain ignorance? The fact that YOU don't realize how
important it is that EVERY biker not only spread the word about what is
happening to our liberties, but how important is to bring others into the
fold. Within the mix of added members you will find, strictly financial
supporters who won't do any work but the payoff will be the few, true
Freedom Fighters who are awakened to the fight.
And while things might be nice and quiet on the legislative front within
your state, how many of you actually realize that there are unelected,
politically appointed entities within OUR federal government who answer
to
no one that are trying to outlaw our preferred mode of transportation.
That is why your membership, your participation in your State MRO and the
MRF, your help in spreading the word of what is REALLY going on in your
government, and your dedication to bring in EVERY biker is so desperately
needed. If EVERY person reading this made a promise and a solemn oath to
themselves to sign up just ONE new member to your SMRO and the MRF
within
the next 7 days - the size of the "Biker Rights Movement" would double.
The treasuries would get a much-needed boost. And just maybe, the next
hardcore leader that will force the movement to the next level will be
found.
If we do nothing, we can all sing "Born to be Wild" around the campfire
or
at the bar while the safety nazi's outlaw our motorcycles.
Bottom line.if we don't get more members and more people involved - we
WILL loose the war and we'll have no one to blame but ourselves. Do we
want to go down in history as the era that LOST the privilege to ride
motorcycles? Do YOU want your grandchildren to say, "Yep, the
grandparents
used to ride these cool things called motorcycles.but they didn't care
enough about legislation and now it's illegal to ride one?
Our grandkids ain't gonna say that about us.they'll be proud to know we
were fighting to the death, standing in the halls of DC fighting for the
rights we have left.
http://www.Solriders.com
________________________________________________________
_____________________________________________________________
http://www.cnn.com/2005/LAW/05/18/colb.circumcision/index.html
Learn your rights regarding police searches
Can police search home if you say 'no' then your spouse says 'yes'?
By Sherry Colb
FindLaw Columnist
Special to CNN.com
(FindLaw) -- Last month, the Supreme Court decided to review Georgia v.
Randolph. The case asks the following question: If a husband refuses to give
police consent to search his house, may the police get consent from his wife?
This question is important because a large number of warrantless searches
are conducted on the basis of consent. The more flexible the concept
of "consent," therefore, the more searches the police can perform, without a
warrant, without probable cause, and without any real basis for believing
that criminal activity is afoot.
Why police want consent
Ordinarily, police must have a good reason to invade your privacy. If an
officer wants to search your home, the Fourth Amendment requires that she
first obtain a warrant -- after demonstrating to a neutral magistrate that
she has probable cause to believe she will find evidence of crime there.
In the absence of a warrant, or an emergency explaining the failure to
obtain a warrant, the police officer violates your constitutional right
against unreasonable searches and seizures when she crosses the threshold
of
your home.
And even with a warrant, the officer must limit the scope of her search to
the areas where the evidence she seeks might reasonably be located. In
other
words, she can't search your desk drawers for a stolen big-screen television.
But all of that changes when you consent. Once you give a police officer
permission to search your home, you relieve her of the obligation to obtain
a warrant and probable cause. You relieve her, as well, of the obligation to
limit the scope of her search.
A simple "Go ahead" in response to "Do you mind if I look around?" converts
what would have been an unlawful invasion of privacy into entirely legal
activity. It forfeits the Fourth Amendment objections you might otherwise
have had.
So it is clear why police seek consent for searches -- it saves them a lot
of trouble, and it opens doors that the Constitution otherwise keeps firmly
shut. But why does anyone consent?
Why people consent
As I elaborated in greater detail in an earlier column, the main reason
people consent to searches is that they do not know any better.
To many, a police officer's request for consent may sound like a rhetorical
question that does not really allow a negative response. The occupant of the
residence might hear an implicit "We could do this the easy way (with
consent) or the hard way (without consent) -- it's up to you" in the police
question. Who would prefer "the hard way" in the face of those alternatives?
But don't police tell the suspect that he has the right not to be searched?
After all, when a suspect is arrested, he is told -- before any
interrogation may take place -- that he has the right to remain silent.
The Supreme Court has said no. According to the Court, the fact that a
person might not know he has the right to refuse a search is merely one
factor in the determination of whether his consent is voluntary.
The Court has reasoned that the police do not need to give warnings -- to
eliminate any doubt about the suspect's knowledge of her rights -- because
warnings might detract from the informality of an otherwise friendly
interaction between civilians and the police.
The Supreme Court has explained that "the community has a real interest in
encouraging consent, for the resulting search may yield necessary evidence
for the solution and prosecution of crime...." Furthermore, the Court has
concluded, it would be "thoroughly impractical" to require an effective
warning about the right to refuse.
Third-party OK
It is with this positive perspective on consent searches that the Supreme
Court addressed the question of third-party consent. Third-party consent
occurs when the person who gives police permission is not the target of the
search or the defendant in the later criminal prosecution.
You may have a roommate, for example, with whom you share a kitchen,
bathroom, and living room in a two-bedroom apartment. The police suspect
that the roommate possesses marijuana and has hidden it in the home you
share.
They either lack probable cause, and thus grounds for a search warrant, or
do not want to bother to try convincing a judge. And they also believe that
you are more likely to consent to a search of the common areas of the
dwelling than your roommate is. So they ask for your consent to a search of
the living room and bathroom.
You might say yes, because you either don't mind or don't think you have a
choice. The police then search the medicine cabinet in your bathroom to find
evidence connected to your roommate. Perhaps they find something.
Perhaps
they don't. Either way, legally, they have not violated the Fourth Amendment.
But what if it turns out that you didn't have actual authority to consent to
the search of the medicine cabinet? Perhaps you and your roommate agreed
that you would use the shelves on the wall and your roommate would use the
medicine cabinet.
According to the Court, a lack of actual authority doesn't matter either. As
long as the police reasonably believed that you had authority to consent and
that your general consent to the search of the bathroom included the
medicine cabinet, the police have done nothing illegal.
Disputes: Government side
It is in this context that the issue of disputes between people with common
authority over the premises arises. The police receive consent to search
from someone besides the suspect.
But this time, the police have already requested consent from the suspect
and been told no. Should the police be able to proceed with a search on the
basis of the third-party consent they subsequently obtain from a roommate or
spouse?
It may seem obvious that the answer is yes -- and that the case is therefore
a slam-dunk for the government. If the well-established legal rule is that
police need consent from only one party with common authority, then it
follows logically that the existence of a non-consenting other person with
common authority is irrelevant.
After all, there is little difference between the target's saying "no" to a
request for consent, on the one hand, and the target's not being asked or
given an opportunity to say "yes," on the other -- either way, the target
has not given anyone permission to search his home. If his consent is needed
for a search, then the search is illegal. If it is not, then the search is
fine.
Consider an analogy. You own a car. Someone who lives down the street
from
you decides to "borrow" that car. You frequently leave your key in the
ignition. Your neighbor gets into your car and drives around on errands
without ever asking you for permission.
That person has illegally taken possession of your car. It is no defense for
the person to say "Well, you never said that I couldn't borrow it." The
default rule is that he cannot borrow it -- it takes an affirmative act by
you to change that default.
Therefore, the "borrower's" failure to obtain your permission to use the car
is equivalent to his having expressly asked to borrow it and received a
clear "no" in response.
In the same way, the government could argue, the failure to give consent for
a search is legally indistinguishable from a response of "no" to a request
for consent. If the former does not preclude third-party consent, then the
latter -- where police ask the target and he says "no" before they go to the
roommate or spouse -- should not either.
Disputes: The other side
Consider what happens when you share common authority over premises
with
another person. You can invite friends over to the house. You can authorize
guests to use the bathroom or sit in the living room, and you can do these
things without calling your roommate or spouse. But that is not
because "yes" necessarily trumps "no" when it comes to understandings and
expectations about shared spaces.
Rather, it is because the default of "no permission" changes when one of the
people with common authority over the premises grants someone permission
to
enter -- whether a friend or a neighbor or the police. Once one of you
invites a person in, the default becomes permission.
Consider again the car analogy. Your neighbor still wants to borrow your
car, and he still has not asked for your permission. This time, however, he
has asked your spouse, who co-owns the vehicle, and your spouse has said
OK.
In this scenario, if your neighbor claimed "Your spouse said I could borrow
the family car," and you believed that claim, then you would no longer have
any reason to complain about your neighbor's actions. Your spouse, in other
words, has the implicit authority to speak for both of you when someone
requests permission to use your joint property.
Unless you say otherwise, your spouse's permission thus counts as
permission
from both of you. That is why your failure to raise an objection to the
neighbor's borrowing the car -- recall the "you never said no" defense -- is
meaningful when the other joint owner has said "yes," in a way that it is
not when neither of you has granted permission.
If instead, however, your neighbor has asked you first and you have said no,
his subsequently going to your spouse and getting permission would present
a
very different set of circumstances. Your spouse now no longer speaks for
both of you, even implicitly, because you have already made your wishes
known to the neighbor.
By failing to accept your refusal, the neighbor -- at the very least - has
behaved improperly by seeking a different "ruling" from your spouse. You
could now understandably complain about the neighbor's actions and say "I
already told you no. Going to my spouse to ask for permission was out of
line."
Now return to the consent search case. When the police officer asks you
whether it is OK if she looks in the bathroom, your affirmative response
speaks for both you and your roommate. If, however, your roommate has
already refused consent, then you can no longer speak for him.
The question, at that point, really does become whether "yes" can
trump "no" -- rather than whether people with common authority can consent
to searches and entries on each other's behalf (prior law makes clear that
they can).
Court should rule against state
Let us take a step back and consider how important it is for police to be
able to perform consent searches. The Supreme Court seems to think it is
essential, saying that "a search authorized by a valid consent may be the
only means of obtaining important and reliable evidence." But is the Court
right to value consent searches so highly?
Consent searches that could not otherwise take place -- that is, searches
that are not supported by probable cause, a warrant, or some other measure
of reasonableness -- are, by that very index, unlikely to yield results.
They are based on hunches and other unsubstantiated police guesses and
they
are frequently a needless invasion of privacy that wastes police time.
These fruitless "consent" searches typically happen below our radar,
because
police have no incentive to tell us about them, and they only rarely cause
the sort of injury that would motivate a lawsuit. In the unusual case in
which police guess correctly, we hear about the consent search, and that
selective revelation conveys the misleading impression that something
appropriate and reliable must have motivated the search in the first place.
The invasion of privacy can be substantial, because people rarely feel that
they have the right or the option of saying no when police ask for
permission to search, no matter how extensively. And over time, police may
come to feel entitled to get consent, which only emboldens them to ask for
permission to search on flimsier grounds and with a greater air of legal
rectitude.
But that is all set by existing Supreme Court precedents. The question now
before the Court is a relatively narrow one: whether police should be able
to "cheat" when it comes to consent -- ask dad, and when he says no, just go
to mom or grandma, etc., until they hear the answer they want.
As rare as it is for people to exercise their right to privacy in the face
of police "requests" for forfeiture, those assertions -- when they do occur -
- deserve respect. If the Court holds otherwise, it will further whittle
away the right against unreasonable searches and seizures -- the right to
make police accumulate probable cause and seek a warrant from a neutral
magistrate before showing up at your doorstep or your car window, hoping to
look around.
Though the Court seems so far to have been mesmerized by the "need" to
search without any basis for believing the search will yield results, it
should wake up from its trance and close the door to your private spaces.
Join FF's MC Rights Ezine email list at
http://www.fastfreds.com/join.htm
"I learned my lesson well. You see, you can't please everyone, so you
got to please yourself." ~Ricky Nelson
_____________________________________________________________
Apathy or Ignorance?
By Hawk and Spotman,
Sons of Liberty Riders
http://www.Solriders.com
Will apathy, ignorance or an overbearing government be the most
difficult problem in the Motorcycle Rights Movement to overcome in the
future? Apathy runs rampant in the Motorcycle Rights community. we all
know that. And we also know that our overbearing government is still
trying to legislate us out of existence.
Sure, we all work hard "for the cause" right? We lobby, we write
letters, we go to meetings, we work hard at our events.but are we
forgetting the uninformed? This may very well be our largest missed
opportunity and it's right there for the taking. We all spend time on
runs, in bars, the bike shop and generally around folks who have a vested
interest in bikes. YET more often than not they are uninformed (about the
major issues that affect us all) and therefore uninvolved. We only
managed
to get 44 U.S. House Reps to sign onto the Shimkus/Strickland letter
stating the MRF's position on the impending EPA legislation. 10% - where
was the other 90%? It's no wonder we didn't fare well in this battle.
What
will Bikers do when motorcycles are finally outlawed by the safety
nazi's?
Most will give up and moth ball their motorcycles as art work or sell
them
to the highest bidder who will put them in a "collection".
And some will never give in!
For approximately $50.00 per year you can make an impact on the future of
motorcycling by joining your State MRO and the Motorcycle Riders
Foundation (MRF). Not only do you give much-needed operating capitol but
also the most important thing is you add yourself as a member to the
membership roles.
Increasing membership roles could actually be more important than the
money. You give the leaders of that organization the ability to lay claim
to X number of members. The larger the membership, the more horsepower
the
organization has when it comes time to step on the gas in an attempt to
make changes within government.
Why isn't EVERY motorcyclist a member of a rights organization? Is it
apathy within the Motorcycle Rights movement? Is it the fact that "we
don't have a helmet law" so why should I bother? Is it the fact that the
little "clique" that runs the show wants all the power, doesn't want any
help or doesn't want folks who might "rock the boat"? Is it the "I pay my
dues, let the State Office take care of me" syndrome?
Or is it just plain ignorance? The fact that YOU don't realize how
important it is that EVERY biker not only spread the word about what is
happening to our liberties, but how important is to bring others into the
fold. Within the mix of added members you will find, strictly financial
supporters who won't do any work but the payoff will be the few, true
Freedom Fighters who are awakened to the fight.
And while things might be nice and quiet on the legislative front within
your state, how many of you actually realize that there are unelected,
politically appointed entities within OUR federal government who answer
to
no one that are trying to outlaw our preferred mode of transportation.
That is why your membership, your participation in your State MRO and the
MRF, your help in spreading the word of what is REALLY going on in your
government, and your dedication to bring in EVERY biker is so desperately
needed. If EVERY person reading this made a promise and a solemn oath to
themselves to sign up just ONE new member to your SMRO and the MRF
within
the next 7 days - the size of the "Biker Rights Movement" would double.
The treasuries would get a much-needed boost. And just maybe, the next
hardcore leader that will force the movement to the next level will be
found.
If we do nothing, we can all sing "Born to be Wild" around the campfire
or
at the bar while the safety nazi's outlaw our motorcycles.
Bottom line.if we don't get more members and more people involved - we
WILL loose the war and we'll have no one to blame but ourselves. Do we
want to go down in history as the era that LOST the privilege to ride
motorcycles? Do YOU want your grandchildren to say, "Yep, the
grandparents
used to ride these cool things called motorcycles.but they didn't care
enough about legislation and now it's illegal to ride one?
Our grandkids ain't gonna say that about us.they'll be proud to know we
were fighting to the death, standing in the halls of DC fighting for the
rights we have left.
http://www.Solriders.com
________________________________________________________
_____________________________________________________________
http://www.cnn.com/2005/LAW/05/18/colb.circumcision/index.html
Learn your rights regarding police searches
Can police search home if you say 'no' then your spouse says 'yes'?
By Sherry Colb
FindLaw Columnist
Special to CNN.com
(FindLaw) -- Last month, the Supreme Court decided to review Georgia v.
Randolph. The case asks the following question: If a husband refuses to give
police consent to search his house, may the police get consent from his wife?
This question is important because a large number of warrantless searches
are conducted on the basis of consent. The more flexible the concept
of "consent," therefore, the more searches the police can perform, without a
warrant, without probable cause, and without any real basis for believing
that criminal activity is afoot.
Why police want consent
Ordinarily, police must have a good reason to invade your privacy. If an
officer wants to search your home, the Fourth Amendment requires that she
first obtain a warrant -- after demonstrating to a neutral magistrate that
she has probable cause to believe she will find evidence of crime there.
In the absence of a warrant, or an emergency explaining the failure to
obtain a warrant, the police officer violates your constitutional right
against unreasonable searches and seizures when she crosses the threshold
of
your home.
And even with a warrant, the officer must limit the scope of her search to
the areas where the evidence she seeks might reasonably be located. In
other
words, she can't search your desk drawers for a stolen big-screen television.
But all of that changes when you consent. Once you give a police officer
permission to search your home, you relieve her of the obligation to obtain
a warrant and probable cause. You relieve her, as well, of the obligation to
limit the scope of her search.
A simple "Go ahead" in response to "Do you mind if I look around?" converts
what would have been an unlawful invasion of privacy into entirely legal
activity. It forfeits the Fourth Amendment objections you might otherwise
have had.
So it is clear why police seek consent for searches -- it saves them a lot
of trouble, and it opens doors that the Constitution otherwise keeps firmly
shut. But why does anyone consent?
Why people consent
As I elaborated in greater detail in an earlier column, the main reason
people consent to searches is that they do not know any better.
To many, a police officer's request for consent may sound like a rhetorical
question that does not really allow a negative response. The occupant of the
residence might hear an implicit "We could do this the easy way (with
consent) or the hard way (without consent) -- it's up to you" in the police
question. Who would prefer "the hard way" in the face of those alternatives?
But don't police tell the suspect that he has the right not to be searched?
After all, when a suspect is arrested, he is told -- before any
interrogation may take place -- that he has the right to remain silent.
The Supreme Court has said no. According to the Court, the fact that a
person might not know he has the right to refuse a search is merely one
factor in the determination of whether his consent is voluntary.
The Court has reasoned that the police do not need to give warnings -- to
eliminate any doubt about the suspect's knowledge of her rights -- because
warnings might detract from the informality of an otherwise friendly
interaction between civilians and the police.
The Supreme Court has explained that "the community has a real interest in
encouraging consent, for the resulting search may yield necessary evidence
for the solution and prosecution of crime...." Furthermore, the Court has
concluded, it would be "thoroughly impractical" to require an effective
warning about the right to refuse.
Third-party OK
It is with this positive perspective on consent searches that the Supreme
Court addressed the question of third-party consent. Third-party consent
occurs when the person who gives police permission is not the target of the
search or the defendant in the later criminal prosecution.
You may have a roommate, for example, with whom you share a kitchen,
bathroom, and living room in a two-bedroom apartment. The police suspect
that the roommate possesses marijuana and has hidden it in the home you
share.
They either lack probable cause, and thus grounds for a search warrant, or
do not want to bother to try convincing a judge. And they also believe that
you are more likely to consent to a search of the common areas of the
dwelling than your roommate is. So they ask for your consent to a search of
the living room and bathroom.
You might say yes, because you either don't mind or don't think you have a
choice. The police then search the medicine cabinet in your bathroom to find
evidence connected to your roommate. Perhaps they find something.
Perhaps
they don't. Either way, legally, they have not violated the Fourth Amendment.
But what if it turns out that you didn't have actual authority to consent to
the search of the medicine cabinet? Perhaps you and your roommate agreed
that you would use the shelves on the wall and your roommate would use the
medicine cabinet.
According to the Court, a lack of actual authority doesn't matter either. As
long as the police reasonably believed that you had authority to consent and
that your general consent to the search of the bathroom included the
medicine cabinet, the police have done nothing illegal.
Disputes: Government side
It is in this context that the issue of disputes between people with common
authority over the premises arises. The police receive consent to search
from someone besides the suspect.
But this time, the police have already requested consent from the suspect
and been told no. Should the police be able to proceed with a search on the
basis of the third-party consent they subsequently obtain from a roommate or
spouse?
It may seem obvious that the answer is yes -- and that the case is therefore
a slam-dunk for the government. If the well-established legal rule is that
police need consent from only one party with common authority, then it
follows logically that the existence of a non-consenting other person with
common authority is irrelevant.
After all, there is little difference between the target's saying "no" to a
request for consent, on the one hand, and the target's not being asked or
given an opportunity to say "yes," on the other -- either way, the target
has not given anyone permission to search his home. If his consent is needed
for a search, then the search is illegal. If it is not, then the search is
fine.
Consider an analogy. You own a car. Someone who lives down the street
from
you decides to "borrow" that car. You frequently leave your key in the
ignition. Your neighbor gets into your car and drives around on errands
without ever asking you for permission.
That person has illegally taken possession of your car. It is no defense for
the person to say "Well, you never said that I couldn't borrow it." The
default rule is that he cannot borrow it -- it takes an affirmative act by
you to change that default.
Therefore, the "borrower's" failure to obtain your permission to use the car
is equivalent to his having expressly asked to borrow it and received a
clear "no" in response.
In the same way, the government could argue, the failure to give consent for
a search is legally indistinguishable from a response of "no" to a request
for consent. If the former does not preclude third-party consent, then the
latter -- where police ask the target and he says "no" before they go to the
roommate or spouse -- should not either.
Disputes: The other side
Consider what happens when you share common authority over premises
with
another person. You can invite friends over to the house. You can authorize
guests to use the bathroom or sit in the living room, and you can do these
things without calling your roommate or spouse. But that is not
because "yes" necessarily trumps "no" when it comes to understandings and
expectations about shared spaces.
Rather, it is because the default of "no permission" changes when one of the
people with common authority over the premises grants someone permission
to
enter -- whether a friend or a neighbor or the police. Once one of you
invites a person in, the default becomes permission.
Consider again the car analogy. Your neighbor still wants to borrow your
car, and he still has not asked for your permission. This time, however, he
has asked your spouse, who co-owns the vehicle, and your spouse has said
OK.
In this scenario, if your neighbor claimed "Your spouse said I could borrow
the family car," and you believed that claim, then you would no longer have
any reason to complain about your neighbor's actions. Your spouse, in other
words, has the implicit authority to speak for both of you when someone
requests permission to use your joint property.
Unless you say otherwise, your spouse's permission thus counts as
permission
from both of you. That is why your failure to raise an objection to the
neighbor's borrowing the car -- recall the "you never said no" defense -- is
meaningful when the other joint owner has said "yes," in a way that it is
not when neither of you has granted permission.
If instead, however, your neighbor has asked you first and you have said no,
his subsequently going to your spouse and getting permission would present
a
very different set of circumstances. Your spouse now no longer speaks for
both of you, even implicitly, because you have already made your wishes
known to the neighbor.
By failing to accept your refusal, the neighbor -- at the very least - has
behaved improperly by seeking a different "ruling" from your spouse. You
could now understandably complain about the neighbor's actions and say "I
already told you no. Going to my spouse to ask for permission was out of
line."
Now return to the consent search case. When the police officer asks you
whether it is OK if she looks in the bathroom, your affirmative response
speaks for both you and your roommate. If, however, your roommate has
already refused consent, then you can no longer speak for him.
The question, at that point, really does become whether "yes" can
trump "no" -- rather than whether people with common authority can consent
to searches and entries on each other's behalf (prior law makes clear that
they can).
Court should rule against state
Let us take a step back and consider how important it is for police to be
able to perform consent searches. The Supreme Court seems to think it is
essential, saying that "a search authorized by a valid consent may be the
only means of obtaining important and reliable evidence." But is the Court
right to value consent searches so highly?
Consent searches that could not otherwise take place -- that is, searches
that are not supported by probable cause, a warrant, or some other measure
of reasonableness -- are, by that very index, unlikely to yield results.
They are based on hunches and other unsubstantiated police guesses and
they
are frequently a needless invasion of privacy that wastes police time.
These fruitless "consent" searches typically happen below our radar,
because
police have no incentive to tell us about them, and they only rarely cause
the sort of injury that would motivate a lawsuit. In the unusual case in
which police guess correctly, we hear about the consent search, and that
selective revelation conveys the misleading impression that something
appropriate and reliable must have motivated the search in the first place.
The invasion of privacy can be substantial, because people rarely feel that
they have the right or the option of saying no when police ask for
permission to search, no matter how extensively. And over time, police may
come to feel entitled to get consent, which only emboldens them to ask for
permission to search on flimsier grounds and with a greater air of legal
rectitude.
But that is all set by existing Supreme Court precedents. The question now
before the Court is a relatively narrow one: whether police should be able
to "cheat" when it comes to consent -- ask dad, and when he says no, just go
to mom or grandma, etc., until they hear the answer they want.
As rare as it is for people to exercise their right to privacy in the face
of police "requests" for forfeiture, those assertions -- when they do occur -
- deserve respect. If the Court holds otherwise, it will further whittle
away the right against unreasonable searches and seizures -- the right to
make police accumulate probable cause and seek a warrant from a neutral
magistrate before showing up at your doorstep or your car window, hoping to
look around.
Though the Court seems so far to have been mesmerized by the "need" to
search without any basis for believing the search will yield results, it
should wake up from its trance and close the door to your private spaces.