When I reviewed Barry Cooper's Never Get Busted Again video about how to travel with illegal drugs in your car, I said the most controversial part was his advice to never refuse a police request to search your car. That goes against all the legal advice I've ever read. Criminal defense lawyers always advise against consenting to any search.

I've often felt that such advice was a little bit detached from the reality of a stressful police encounter. Lawyers see these cases in the legal context, and it's easy for them to say you should refuse consent, but they rarely describe how to refuse consent. When your road trip has been interrupted by siren and flashing lights and there's 220 pounds of state trooper asking with barely contained rage if you mind opening your trunk, sir...what the heck are you supposed to do?

Cooper's Never Get Busted Again video approaches the issue almost purely from the dynamics of the police encounter, not from the legal viewpoint, and his basic advice is that you should consent to a search if your stash is well hidden, because the officer will give up after a few minutes of routine searching.

On the other hand, if you refuse a search, the officers will treat that as an admission that you have something to hide. Legally, it's not, but there on the side of the road, that's what it is. According to Cooper, this will encourage the officer to find some way—perhaps legal, perhaps not—to search your car. He'll call in a drug dog, he'll call in other cops, and one way or another he'll search your car. So your best bet is to consent to the search in the hope he won't make much of an effort.

When I said lawyers are detached from the reality of police encounters, I wasn't referring to the folks at the Flex Your Rights Foundation. They put out the very-well-received Busted DVD, which shows you how to preserve your rights during an encounter with police. They disagreed with Cooper's advice:

Unfortunately, Cooper recommends consenting to searches, which is the worst imaginable strategy for handling a police encounter. His message flatly contradicts the consensus judgment of civil libertarians, and encourages the very behavior Flex Your Rights and many others have been struggling to abate.

...

There's no doubt that refusing consent will often heighten an officer's suspicions. But the officer was suspicious before asking for consent to search. (That’s precisely why he asked!) The argument that consenting will deflect suspicion cannot be sustained. Any officer, including Cooper elsewhere in the video, will confirm that almost everyone consents whether or not they're hiding something.

Cooper's claim that he searched everyone who refused suggests that he repeatedly violated constitutional prohibitions against unreasonable detentions and searches without probable cause. Such misconduct remains common, but it’s not exactly the norm.

Later on, they explained why consenting to a search is bad for you:

Consenting to a search automatically makes the search legal. And if any contraband is found, you can’t suppress the evidence. Waiving your 4th Amendment rights places you at the mercy of the criminal justice system and everything it has to offer. Ironically, Cooper encourages defendants to hire an attorney with trial experience and refuse plea bargains, yet anyone who consented to the search will have no choice but plead out or become an informant.

The failure to explain that consent automatically legalizes the search is a confounding omission given his target audience of marijuana users. Cooper praises 4th Amendment rights in the introduction, but later encourages citizens to voluntarily waive these rights when they matter most.

To my way of thinking, that's about half of a response to Cooper. They've explained the bad things that could happen if you consent to a search, but except for a few brief objections, they haven't responded to the bad things Cooper says will happen if you refuse consent. I regard that as Cooper's main point: Refusing a search doesn't actually work—the police will always find a way to search you, and now they'll know you have something to hide.

That struck me as not an unreasonable thing to believe. Supreme Court cases such as Whren and Atwater have weakened 4th Amendment rights a lot. Former defense attorney Ken Lammers at CrimLaw has repeatedly claimed that, at least in Virginia, there's no such thing as the 4th Amendment when you're in your car. Some of our rights are more theoretical than actual. I wanted to hear more.

Yesterday, Scott Morgan at Flex posted a response that addressed my concerns head on:

Whren, which permits pretext stops, and Atwater, which upholds arrests for minor traffic violations, can be viewed collectively as creating a situation in which police can profile you, stop you for any traffic violation, perform a custodial arrest, and (via Belton) search your car incident to the arrest. This combination has been cited by Justice O'Conner and others as a frightening legal blueprint for racial profiling. I've been complaining about it for years.

Fortunately, none of these cases involved a citizen who attempted to assert 4th Amendment rights. Given the Court's consistent rejection of refusal as evidence of wrong-doing, an Atwater arrest following refusal of consent poses a unique constitutional question that's never been addressed by the Court. Furthermore, Atwater is grounded in the observation that such arrests are scarce, and that many police departments already prohibit them. This precedent has not led any of the many terrific defense attorneys we know to suggest any revisions to our materials.

Yet Barry Cooper unflinchingly characterizes our information as a one-way trip to the big house:

Each individual person must decide if he or she wants to continue traveling down the highway or go to jail by "flexing their rights." My DVD is titled "Never Get Busted Again" not "FLEXYOURRIGHTSALLTHEWAYTOJAIL!!!

The obvious refutation of this claim is that it isn't happening. After more than 3 years and more than 1 million viewers, his prediction hasn't panned out. Our viewers' success might surprise Cooper, but not the numerous experts who've endorsed our information. After all, it was the observation that this information helps people which led to FYR's formation.

That's what I wanted from Flex Your Rights, a clear statement that refusing a search is still proving effective at preventing a searches or getting search results excluded at trial.

This strikes me as a difference of perspective between Cooper and the folks at Flex. Cooper's job was about arresting people. Obtaining a conviction would also have been important, but it was necessarily secondary to the arrest. In addition, Cooper makes it clear that his bosses loved seizures: As soon as they found out he was good at profiling, they switched him from northbound duty, catching cars full of drugs, to southbound duty, catching cars full of cash. So, if Cooper searched a car and found $25,000 in cash, his bosses probably didn't care if the search was legal since under the seizure laws they could still keep the money.

Scott Morgan goes on to recommend a few changes to Cooper's advice, which I'll condense here:

1. Be aware that consenting to a search means that you're waiving your 4th Amendment protection against unreasonable searches and seizures. If anything illegal is found after you've consented to a search, there will be very little your attorney can do for you.

2. If an officer asks to search and you have private items that are not well hidden, always REFUSE consent.

3. If you've got nothing to hide, always refuse the search. You've got nothing to lose.

4. If you find it necessary to refuse a search for the reasons listed above, calmly state the following: "Officer I don't consent to any searches. Am I free to go?"...If the officer says you may leave, depart immediately regardless of anything else he says.

Cooper responds in a comment that he agrees with all four points.