When the Police Don’t
May 1, 2005
The following is a “classic” Hardyville column, written with the assistance of Hardyville’s elusive Lawyer X, that first appeared in 1999. Because of increasing abuses of the Fourth Amendment (abuses often sanctioned by the Supreme Court and Congress and targeting the innocent) it seems like a good idea to take another look at some of the ways we can protect ourselves against growing police-state tactics. I’ve updated all the links, made two or three changes, and added links to recent developments. Best of all, what X called “The FutureTech Solution” in 1999 is today’s useful reality.
Lawyer X, Hardyville’s favorite outlawyer, had been telling us to “just say no,” if police showed up at our doors without a warrant. That was good as far as it went, but then the questions poured out:
“What if you get stopped and searched for “driving while black”?”
“What if they don’t knock at your door, but just smash it down in the middle of the night?”
“What if they force you into a search by getting drug dogs to sniff your car? The Supreme Court says cops can do that anybody now. Drug dogs always scent something — instant probable cause!”
“All the cops around here are good guys,” I observed. “And the ones who write after reading my columns really think and really care. But I hear horror stories from readers, too. This asset forfeiture business has made the old fashioned shakedown legal and profitable. The feds are trying to turn cops into soldiers. The good cops are being squeezed between a rock and a hard place — and so are we. What should people do to protect themselves?”
X listened to us a minute, then put up his hand.
“What you don’t do is … this!” X’s hand shot under his jacket and we glimpsed a little leather and something shiny. Carty, on the other side of the table, jumped and started to reach behind his back. He stopped as X pulled out his PDA.
“You don’t make any sudden moves,” X said, with a sardonic look in Carty’s direction. “But you do make sure to know the law. I always carry my favorite cases around with me in case of need and two of my favorites are Brown vs. Texas and Delaware vs. Prouse. Brown says that police couldn’t stop a man walking out of an alley in a ‘known drug location’ because officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct.’ Prouse says that ‘except in those situations in which there is at least articulable and reasonable suspicion that … either the vehicle or an occupant is (in) violation of law, stopping an automobile and detaining the driver … (is) unreasonable under the Fourth Amendment’
“These cases make fascinating reading, and I urge you to study them. But in conflicts with the police you have to keep something fixed firmly in your mind. You are not a cop. Cop tactics involve stopping cars by shows of force or breaking down doors. Citizen resistance uses different tactics. The infantry and the cavalry don’t fight the same way.
“During searches you should just sit there and wait for it to get over with. Your work of resistance should go on before and after the search not during it. During the search you should say nothing significant but you should make it clear that the stop or search are not voluntary. This has big legal implications.”
“Just sit there and let them stomp your constitutional rights?” demanded Carty. “Not me.”
“It isn’t fair,” said Dora.
X shrugged. “Cops, like life, are not always fair. If your melanin production is a tad too high, you will be subject to greater harassment. If you look like a ‘druggie’ or live in a poor neighborhood, you are more likely to have your home invaded. Poor, black men are much more likely to be stopped than rich, white women.
“The big thing is, never voluntarily consent to a search. Never. Why not? Anything the cops find is admissible against you. If you don’t consent, they may still search you or your car but you increase the odds that your lawyer can get the search thrown out.”
“Yeah,” Carty protested, “but what if you say, ‘You can’t search.’ And they do it anyway — then get on the witness stand and swear you consented?”
“On cross, ask if the cop knows what the term ‘testilying’ means. You can always ask (assuming the witness has ‘sworn’ rather than affirmed) if the witness realizes that a false swearing is a violation of a sacred oath and he will burn in hell for all eternity if he is lying.
“Court is rough because it’s a show staged by the government. But the firmer you are, the easier it is to establish that you didn’t consent. If you cite (by name) the two cases I just mentioned, you can convincingly argue that you are aware of your rights and would not have ignored them. You can post notices on [your blog] or a listserv that all searches of your person or property will be involuntary and that you will never allow a voluntary search.
“One more thing. Cops are filming many of their stops these days so if you speak up, it may even be on the cop’s tape. And here’s something: The Future Tech solution is to be uploading (wirelessly) to the nets a voice or voice and video bitstream of the whole process. You may even be able to get extra income by selling it (live) to court TV (assuming the cops haven’t already sold their bitstream of the process).” [It’s called sousveillance, and has produced some interesting video.]
“Yeah,” agreed Bob-the-Nerd. “Let’s work on that one. But what do we do for the next five years?”
“If you are an ordinary, non-political person just going through life, you are probably safe from all but accidental oppression by the cops. If you are a resister, you should take steps to ‘harden’ your life against the police. You may not be able to change your race or gender to one more acceptable to your government, but you can change other things. Here are some suggestions. You might consider some of them a restriction on your personal freedom but if you are a soldier of sorts, I see no problem with voluntarily choosing to make your fight with the government more effective:
- Dress up. (You will appear to be older and richer, hence less of a target.)
- Drive conservatively. If cops are stopping you more than every three years or so, change your habits to reduce stops. Even casual stops build paper trails and bring you to the cops’ attention.
- Keep your car in good repair. Check those tail lights.
- Clean the inside of your car regularly. Don’t leave money, medications, guns, pictures, literature or printouts of e-mail messages in sight.
- Learn to play the game of “spot the cop.” Watch for police cars and (casually) avoid them. Avoid roadblocks if possible. (The Supremes say it’s OK.)
- Live in an upscale neighborhood (or at least not a poor neighborhood).
- Don’t drive, or reduce your driving. Cops love their cars and hate to get out of them. Most of your interactions will involve your driving.
- Get an out-of-state or foreign drivers license. If you are a “foreigner” (and otherwise look OK) cops will treat you better.
- Don’t tell anyone who’s not sleeping with you where you sleep at night. (Practice address privacy.)
- Harden your house. Steel doors are legal, so are window bars. If building new, consider the virtues of poured concrete. Block easy access to the second story. Keep a cell phone by your bed.”
“But that’s all defensive,” I protested. “Carty’s got it pegged. When our rights are being violated under color of law, we have every right — maybe even a duty — to put a stop to it. If all we do is submit, then go to court later, maybe we’ll do ourselves some good — if we have money and good luck — but we won’t do any good for freedom. They’ll just pick better victims next time.”
“So you feel like going out in a blaze of glory, do you?” asked X. “There’s good news on that front. Even if you choose to fight the government on its terms rather than yours, the odds are swinging in your favor. Look at some of the confrontations in recent years. You may be surprised to learn that juries have acquitted citizens of murder and attempted murder for shooting (or shooting at) attacking cops. Randy Weaver and Kevin Harris were acquitted in the Ruby Ridge trial and released. The 11 surviving Branch Davidians were acquitted of murder and murder-conspiracy charges in a trial after the Waco holocaust (some were convicted on weapons and other charges). Patricia Africa was acquitted of attempted murder after the Philadelphia police burned an entire square block of townhouses to the ground in an attempt to enforce the city’s health code against the MOVE house.
“I should say, however, that glorious stands are probably not the best use of your life. If you have that much courage and dedication, liberty needs you in the sorts of battles we can win. Battles of publicity, technology, and market building. Battles where the government is disarmed.”
“I don’t know, X,” I said. “An awful lot of people have about had it. At least the ‘blaze of glory’ people make a difference by bringing government abuses to light. It’s not what I want. But I understand why more and more of my friends are feeling that way. I feel that way myself, sometimes.”
“Yeah,” nodded Carty. “And just wait until they start adding mass gun-grabs to all the rest of this search and seizure crap.”
“Interesting times,” someone observed.
“Interesting times,” we agreed.
If you have further questions, check these sites:
Cecil Greek’s Criminal Justice Links at Florida State University.
Findlaw.com. Research Supreme Court opinions, find a lawyer, study law, find a discussion group.
Back when the California state attorney general was planning gun confiscations, The Lawyer’s Second Amendment Society wrote “Just Say, ‘Go Away.’“. The intro of the article is out of date now, but the overall advice is good and applies to a lot more than just gun owners. Remember, as Martha Stewart taught us all, you should never, ever talk to police or federal investigators. (And the same goes for you Canadians!)
If you want to have a well-educated jury: The Fully-Informed Jury Association.
The Police Complaint Center. These folks take reports on, and do video investigations of, bad cops.