January 5, 2009
Freedom Department
Have you got something to hide?
I had some technical difficulties, and I'm way behind in blogging this, but a few days ago Gideon addressed that most tiresome of responses to a refusal to aquiesce to law enforcement intrusion: "Why? I've got nothing to hide."
I see similar arguments from those not of the criminal defense bent in regards to some basic Constiutional protections: "Well, if I've done nothing wrong, then why should it matter that the police didn't have a warrant." It underlines the notion that the Fourth Amendment is a "technicality".
There are several answers to that, depending on the context. If it's an actual confrontation with law enforcement, I think my best response would be to politely reiterate that I'm asserting my rights. One of the defining attributes of a right is that you don't have to justify it to anyone.
Gideon is talking about handling that assertion in the context of an argument, and he goes with a standard response:
Just because I have nothing to hide, doesn't mean I want everyone to know everything about me.
Arguably, Gideon is really saying that he does have something to hide, but that his reasons for hiding it are not sinister. He just doesn't want to lose anything to the privacy thieves.
I like to draw this out a little more clearly with an example, so for this post only, if you leave a comment in which you assert that people who have nothing to hide shouldn't fear a small loss of privacy, please include the following items in your comment:
- Your full name.
- Your email address.
- Your data of birth.
- Your home address.
- The name of your employer.
- Your home, work, and mobile phone numbers.
- The full names and birthdates of your spouse and all of your children.
Also, email me a headshot of you and each member of your family taken within the last three years and a scanned image of your most recent bank statement.
I think I first got the idea to respond that way from an article by the great Mike Royko, and it was originally a sort of conversational gambit: "That's in interesting point about having nothing to hide. What did you say your names was? How do you spell that? Do you have a middle name? Where do you live? Elgin? Really? What street? What's your address there? You won't tell me? Why? Have you got something to hide?"
The third response to "I've got nothing to hide" is Oh yes you do. You are probably not as innocent as you think you are. Our criminal laws are a tangled web of byzantine rules that can land you in jail. Granted, in many cases you won't actually serve time, but you will still get arrested and suffer through all the related ugliness.
If you've been pulled over and the cop wants to poke around in your car, are you sure you don't have anything that could get you in trouble? Drugs? Booze? How about a BB gun? In some states, a BB gun in the trunk will get you arrested. How about a can of spray paint? It's illegal if you're under 18 in a lot of cities with graffiti problems.
(I've never heard any stories, but I've got to wonder how many people are arrested for possession of illegal martial arts weapons they didn't know they had. The definitions are maddeningly vague. For example, we've all seen enough martial arts movies to recognize Nunchucks, but in St. Louis the law defines as "two or more rigid parts connected in such a manner as to allow them to swing freely." How about a Yawara or Tonfa, which are sticks with knobs, or a Kuboton, which is just a short stick? You sure you don't have something like that in your car?)
My newest response comes courtesy Scott Greenfield, who points out that once you give permission for a search, you effectively lose all control of the scope of the search. Even worse, there's this recent Eighth Circuit decision:
In United States v. Santana-Aguirre, No. 07-3706 (8th Cir. August 12, 2008) (opinion), a 2-1 panel held that when you consent to a search, you also consent to the destruction of your property.
If you give the cop permission to look in the trunk of your car, you could end up with him and three other cops tearing your car apart for 45 minutes. It's unlikely, but it's reason enough to refuse a search.
That's four reasons to refuse even though you "have nothing to hide":
- Because you can.
- To protect your privacy.
- You don't know what can get you in trouble.
- The search itself is bad enough.
Pick the one you like best.
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"Sometimes people say I shouldn't mind being searched if I have nothing to hide. I immediately accuse them of having a swastika tattooed on their genitalia -- if they have nothing to hide, then surely they shouldn't mind dropping their pants to prove me wrong." - guitherisms
Additional reason not to permit a search: Have you ever had a passenger in your car? Can you be 100% sure that they didn't have a roach or pill in their pocket that might have slipped out between the seats?
The truth is, there is absolutely no reason to ever consent to a search.
1. You're holding something illegal, in which case the search will find it and you'll be in trouble, so you'd be stupid to want to have the search.
2. You're innocent, in which case the search does the police no good, so why waste your time and his? (Not to mention the damage to your car, the chance of unknowns, etc.)
Anyone who consents to a search is an idiot, a pushover, or completely uninformed.
Awesome answer there Pete. Not an argument I can use in the lunchroom at work, but still very effective.
I do think you're a bit harsh when you say "Anyone who consents to a search is an idiot, a pushover, or completely uninformed." The police are experts at putting a tremendous amount of pressure on people, and most of us are amateurs at handling it. As much as I talk about the right to refuse a search and to refuse to answer questions, I fear I'll probably roll over when the time comes.
Other responses:
"Sorry, no; I don't know you well enough."
"Hey, it's a rented car; for all I know, there's a dead hooker in the trunk." (Possibly an unwise remark.)
"Why don't I consent to a search?" (Reframing the question.) "Because I don't consent to a search."
"Why don't I consent to a search? Because my attorney would never forgive me."
Frequently, by the way, the question is compound: "You don't have any drugs or nuclear weapons on you, or anything, do you -- and you don't mind if I search?" (I know that sounds silly, but watch COPS -- the tv show. That easy-to-deny-question* isn't accidental.)
As to the "stuff that's been dropped" issue . . .
1. Every cop has heard, "that's not mine." Including the one who rolled over a junkie in an alley; the guy had a spike still in his arm. "That's not my arm." (As I've heard more than one criminal defense lawyer explain, however, proscription against, say, possession of meth isn't merely for those who have acquired clear title to, say, a bag o' meth, but who actually, well, possess one.)
2 Stuff being left in a car actually happens. I know a guy (no, it wasn't me) who discovered, a bit late, that his sister had left a baggie with a small amount of hashish under his drivers seat, when he let her borrow the car. And the last time I rented a car from Avis, some years ago, there was a box with eleven condoms in the glove compartment; I'm pretty sure that wasn't them trying harder, as they'd have gone for full dozen.
But, yes, it's difficult, the first time, to decline the kind offer of a search. It's also pretty liberating, in my experience.
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* Very, very few people stopped actually have nuclear weapons on them.
Another response I like is the Miss Manners approach---polite without falling for the temptation to explain oneself: "I'm sorry, but I simply can't."
I've also contemplated "Do you mind if I look in your trunk?", but there's always the chance that he'll let me, and then what am I going to do?
Still, the idea is based on a sound little bit of internal psychology for dealing with that trick cops use to put you into a position where you feel psychologically obligated to be nice, to go along, to not make a fuss. When you ask them for something impossible, their subsequent refusal breaks the spell of obligation to cooperate. This also works on pushy salesmen, charitable soliciters, and so on.
Of course, then the cops will just start yelling.
The Miss Manners approach is one that David Gross -- in his inimical style -- has been known to reproach me for not taking; the notion that somebody making a demand or request of you or having a need -- no matter how loudly or, for that matter, sincerely expressed -- somehow creates an obligation.
do think you're a bit harsh when you say "Anyone who consents to a search is an idiot, a pushover, or completely uninformed." The police are experts at putting a tremendous amount of pressure on people, and most of us are amateurs at handling it.
I've consented twice to searches of my car that I had the legal right to refuse. Rather, I should say, I didn't refuse to open the trunk of my car or protest when the officer searched the passenger cabin. There were no requests involved. In both cases, I went along with it because I felt a gut level sense of conviction that I would end up arrested on some sort of trumped up charge by an enraged police officer if I protested. It would be my word against a cop and the chances aren't good in that scenario.
In neither case was I informed of any reason or cause for the search, nor was I pulled over for any violation. I drove off both times without any explanation whatsoever.
I filed a complaint the second time it happened and it went absolutely nowhere. I never received satisfactory explanations for the officers' actions.