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Take the "4th"
Do Not Consent

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Nate Wente
By Lawyer
Nathan Wente

“Where the people fear the government you have tyranny.
Where the government fears the people you have liberty.”

--John Basil Barnhill (1914)

This quote is so simple and yet so profound in its truth. How then do we, the people, cause our government to "fear" us so that we may maintain liberty and live free? I believe the answer is in becoming educated about our rights as they are memorialized under the law, especially under the United States Constitution. Without knowledge and exercising of our rights there is no incentive for the government to honor them.

This month’s topic is one that I’m passionate about as I deal with it often, the 4th Amendment. It states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”

It may be helpful to re-read last month’s letter on “judicial interpretation” of law if you’ve forgotten what it is, as the 4th amendment is another right that has been greatly impacted by it. The 4th amendment has been broken into two distinct parts:

1) Judges shall not issue warrants unless they find probable cause;

2) You and your property shall not be unreasonably searched or seized.

For purposes of this discussion the focal point will be #2 but it is necessary to understand the connection between the two parts. The connection is, if the government performs a search or seizure with a warrant then, generally speaking, the 4th amendment has NOT been violated because the search was reasonable.

If government performs a search or seizure without a warrant then the issue of whether there is a 4th amendment violation hinges on whether the search or seizure was “unreasonable.” If a search or seizure was “unreasonable” there is a violation of the 4th amendment; if it was reasonable there is not.

So what does “unreasonable” mean? The courts have spent the last 200+ years defining, and re-defining, the term “unreasonable” as they believe it was intended in the Constitution. When the courts are presented with a case where an officer performed a search or seizure without a warrant they must decide whether the search or seizure was reasonable or not. If they decide it was reasonable this is called an “exception” to the warrant requirement.

4th Amendment TSA protest
4th Amendment - TSA Protest

The following is a list of some of these so called “exceptions”:

a) Where an officer has probable cause a person has committed a crime the person may immediately be arrested;

b) Where an officer has arrested someone, their person and property nearby may be searched (a.k.a. “search incident to arrest”);

c) Where an officer has a reasonable belief that a motorist is dangerous and may be carrying weapons, the vehicle may be searched (a.k.a. “automobile exception”);

d) Where an officer reasonably believes a person is engaged in criminal activity and the person may be armed, the person may be temporarily detained and patted down (a.k.a. “stop & frisk”)

e) Where an officer believes there is a compelling need for action and no time to get a warrant (a.k.a. “exigent circumstances”);

f) Where an officer has a person’s “consent,” they may be searched;

g) Where an officer has seized property, such as a vehicle, a property search may be performed (a.k.a. “inventory search”)

There are at least a few more “exceptions” and I’m sure the future will bring more. The courts still make the claim in their published opinions that “there are only a few very specific ‘exceptions’ to the warrant requirement.” This, in my opinion, is absurd since the list above begs the question; haven’t the number of “exceptions” practically destroyed the rule of requiring a warrant? I contend that it has, especially when you consider that whether an “exception” applies is, in most cases, based soley on the officer’s testimony of the circumstances surrounding the search or seizure.

I bolded consent because it is the only “exception” we have any control over. Don’t consent. Ever. Whether you’ve something to hide or not it is your responsibility to exercise your rights. You DO NOT have to consent even though that’s what we’ve been programmed to do. There is nothing wrong with refusing consent and it does NOT mean you’ve something to hide; it means you value your privacy. You wouldn’t let a stranger search your person or property. Does a uniform and badge make the person any less of a stranger? Of course not. Refusing to give consent is the only thing we can do in this context, as individuals, to send a message that we know our rights and are willing to exercise them.

So the next time an officer asks to search your person or property you may politely tell them, “I do not consent to your search.” Pop out your recording device (if you have one), notify the officer you are recording him/her, and ask, “Are you going to search even though I’ve refused? If so, on what grounds?”

Know your rights.

Stand for freedom.

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