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But what if I don't want to?
February 23, 2011 12:38 PM   Subscribe

This video clip from the TLC leaves me wondering what should be done. I know to never allow the police to search anything and to not answer questions. But what if the request is not a question but a demand rationalized by the officer as a safety issue. Bonus question: does the door being opened count as consent to search? YANML YANAL TINLA apply

I know my basic rights, at least I think I do. I have seen the lecture on why you never talk with the police and the Busted videos. But none of them seem to answer the question above.

I have seen parties broken up, but my friends always stand outside and tell the officer that they are not allowed inside and they have never had an officer ask to come in or demand the door is opened.

Before you ask; I live in California, and I do not want or need a lawyer. I have never had problems with the law and I am not looking for real legal advice. Spending money on a lawyer when I have no real need for the answer seems silly.
posted by Felex to Law & Government (16 answers total) 11 users marked this as a favorite
 


As the video demonstrates, you can still get hauled away in cuffs for asserting your rights. Doesn't matter what the law is, doesn't matter who's right and who's wrong.

At the end of the day, the law enforcement office will put you in cuffs if they want to and there's nothing you can do about it.
posted by DWRoelands at 12:59 PM on February 23, 2011 [3 favorites]


I'm not a lawyer or expert but I think what that video mainly showed was cops bullying some kids. Notice they focused on the unsure, rattled kid and left the kid that actually closed the door alone.
posted by ghharr at 1:07 PM on February 23, 2011


I think the Cops were not exactly pleasant and they definitely go for the weaker looking kid. But the real question is: should he have opened the door?
posted by Felex at 1:18 PM on February 23, 2011


But what if the request is not a question but a demand rationalized by the officer as a safety issue.

Then you have no choice. Resisting an officer or hindering a lawful order are arrestable offenses. Remember, your rights aren't to help with a specific law enforcement officer encounter but to help your defense team in a courtroom.
posted by anti social order at 1:20 PM on February 23, 2011 [4 favorites]


> But the real question is: should he have opened the door?

This is a hypothetical. If he had a big stash of contraband that he could get sent upstate for 20 years then a simple (contestable) obstruction charge is certainly preferable, so no he shouldn't have. If he had absolutely nothing to worry about then he shouldn't have bother to assert his right to refuse and done the most expeditious thing to send the cops on their way. It's not so black and white.
posted by Burhanistan at 1:21 PM on February 23, 2011


You should always assert your rights. Even if you have nothing to hide or you aren't doing anything wrong. Getting in the habit early is important because you never know when you will end up in a situation where you need a lawyer.

The police are not your friends and they are not always there to help you. They are there to do their job.
posted by grizzly at 1:33 PM on February 23, 2011 [7 favorites]


Its a fuzzy area. You generally do not have to open the door and you absolutely do not have to consent to a search. However, you are also generally required to comply with an order from the cops. The best course of action is generally to ask if you are required to comply. If they tell you that you have choice, you will not have waived any rights. If they see something through the open door that leads to an arrest or evidence of criminal activity, there will be a vigorous fight at the evidence suppression hearing. Whether or not it would be admitted is a complicated question that would depend on a host of factors, possibly including the whim of the judge. To make an extreme point, if the police saw someone tied up and bleeding on the floor behind you, they would be permitted to take appropriate action. If they decide they smell weed and then toss the house, it probably wouldn't stand up.

I would bet anything that this encounter goes down completely differently if the kids are white. As it stands, I would expect that the charge is dropped somewhere along the line, because a charge of obstruction with no other underlying crime is almost always just what this was, an angry cop who feels like they didn't get the proper respect.

So, the short answer is that yes, the police can demand that you open the door if they believe that their safety is at risk. You can make them verbally state that it is an order before you comply, but if they insist, you should obey unless you believe that the risk of what they might see is greater than the hassle of an arrest for obstruction.

The answer to the second question is no, opening the door does not equate to consent to be searched. You would do well to reassert that you are not giving permission to do so.
posted by Lame_username at 1:33 PM on February 23, 2011 [1 favorite]


So, the short answer is that yes, the police can demand that you open the door if they believe that their safety is at risk. You can make them verbally state that it is an order before you comply, but if they insist, you should obey unless you believe that the risk of what they might see is greater than the hassle of an arrest for obstruction.

Can the police order you to perform a specific action if you are not inhibiting them from performing said action themselves? Is there something the guy could have said to inform the officers that they could open the door themselves if they so choose, while making it clear that he does not consent to any searches?
posted by Behemoth at 1:42 PM on February 23, 2011


The police can order you to stand on your head and sing the National Anthem. That doesn't mean you have to do them. If the officer says that there might be something dangerous behind the door then all you need to do is say that isn't the case and you are not obstructing an officer. You are obligated to prove to them that Osama Bin Laden is behind the door or a 500 lb gorilla or any other imaginary beast.

The kid should have told the officer that there was nobody with a gun behind the door. The fact is that the kid did open the door - once. Technically he did obey the officers.
posted by JJ86 at 2:02 PM on February 23, 2011 [1 favorite]


JJ, I think you meant you are NOT obligated to prove...

Be polite. And say as absolutely as little as possible. "Thank you, no, I have nothing to say". "No thank you, I do not consent to having you search my car/house/whatever". "No, you cannot come into my house/office/wherever." They KNOW the rules, and often they depend on you NOT knowing the rules.

You have rights and the cops have their jobs to perform. You have no obligation to compromise your rights, period. No amount of lying, cajoling, excuses or questioning by the police requires you to say anything. Look at it this way, they wouldn't be asking for information if they already had it. By opening your mouth you're GIVING them evidence.

There's an old saying, better to be silent and have them think you're a fool than open your mouth and remove all doubt. This is doubly true when police are involved.

Yes, it's entirely possible for them to falsely arrest you and cause you great inconvenience for failing to comply with whatever trumped up nonsense they concoct. That just obligates you to stand up for yourself and turn around and file complaints regarding their improper conduct.

We ask the police to do a filthy job, and sadly it's no surprise some of them come away dirty from it. But that doesn't justify letting them trample on your rights or those of others.
posted by wkearney99 at 5:11 PM on February 23, 2011 [3 favorites]


Anyone know the end result here? Did he get an obstruction charge?
posted by patrad at 8:37 AM on February 24, 2011


No, on the full version she "lets him off with a warning".
posted by Felex at 11:04 AM on February 24, 2011


> No, on the full version she "lets him off with a warning".

Ah, well knowing the outcome is helpful in determining post hoc what he should have done. He obviously made the right choice to deny the officer's request. She seems to be a slick operator, and knows how to phrase requests that require consent to sound like urgent demands.
posted by Burhanistan at 11:07 AM on February 24, 2011


Can the police order you to perform a specific action if you are not inhibiting them from performing said action themselves? Is there something the guy could have said to inform the officers that they could open the door themselves if they so choose, while making it clear that he does not consent to any searches?
That's a very good question. My instinct is that they probably couldn't. I think stepping aside and telling them you don't give them permission to enter, but that you are not obstructing them would be a reasonable action and I doubt you would get convicted if charged.
The police can order you to stand on your head and sing the National Anthem. That doesn't mean you have to do them. If the officer says that there might be something dangerous behind the door then all you need to do is say that isn't the case and you are not obstructing an officer. You are obligated to prove to them that Osama Bin Laden is behind the door or a 500 lb gorilla or any other imaginary beast.
The cop here is generally aware of how the law works. The courts generally give pretty wide latitude to orders like "wait here" or "stand over there" in the interest of safety and refusing to comply with them would clearly subject you to conviction on obstruction charges. Courts are going to grant pretty wide latitude to determining what orders from the police are reasonable. This wouldn't include singing a song, but it could well include opening the door.
posted by Lame_username at 1:00 AM on February 25, 2011


> The best course of action is generally to ask if you are required to comply.

Since police can lie, are you able to trust their answers? I'm not being legalistic here, I'm authentically wondering if police will honestly answer questions that you ask them about your legal rights. If he said "I do not consent to any search: am I lawfully required to open this door?" are the police allowed to lie? I'm inclined to think that the police have every reason to make you think that you are required to do anything they say, and they have the right to lie, so they're going to lie, every time. Or if they are not legally allowed to lie to that sort of question, they're going to lie, then justify it as a truth later ("I thought I saw a person tied up").

I've never studied this or anything, but I'd guess that his best course of action would have been to say "I do not consent to any searches, but I will not physically prevent you from opening the door against my will. You do not have my permission to open the door. Do not open my door." This would redirect the decision of the officer on whether they have the right to open the door rather than whether you are obstructing justice. If they don't take the bait, and they continue to ask you to open the door, then asking if you're required to would give you an additional thing which your lawyer could use to have the charges dropped. The police would know this, and would be more likely to drop the case themselves.

For the record, I am terrified of the police even though I have never had anything to hide from them. I wish more people asserted their rights so that police wouldn't be so shocked and offended when it happened that they are emotionally tempted to trump up charges or to waste your time or hassle you in some other way to "teach you a lesson."
posted by brenton at 2:06 AM on March 18, 2011


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