Justice and Due Process

Know When You Can Say No

The following op-ed was published this week in the Deseret News.

An officer approaches your car and says “I’m going to need to take a look inside your car, okay?” You’ve just been pulled over for an alleged moving violation. Mind racing with the possibilities of what you could’ve done wrong, you stutter a quick “okay,” and follow the officer’s instructions.

In court, this interaction is characterized as a voluntary agreement between police and the individual—but is it truly consensual if you didn’t know you could legally refuse?  The officer technically “asked” for permission to search your car, but due to their position of authority and the phrasing of the question, you may have felt that you had no other choice than to respond affirmatively, not even realizing you were being asked to consent.  

This response is common in police search encounters, whether it be in one’s home, their car, in an airport, or on a public bus. The Fourth Amendment to the U.S. Constitution requires officers obtain consent to search when they don’t have a warrant or probable cause, but despite these privacy protections, people are not likely to assert their rights when approached by police.

Why is that? One study by a law professor from Northwestern University School of Law found that although most searches don’t result in the finding of illegal activity, innocent people still continue to heavily consent to government searches out of fear. As portrayed in the hypothetical above, this is partially due to psychological pressure against any refusal of the requests of an authority figure—especially dressed in official uniform with a badge and a gun. It is also due to the way the question is presented and worded, in what an individual may perceive as a command rather than a request.

Are these mannerisms and psychological effects considered by a court to be signs that consent was not truly given? Probably not. The Supreme Court “has signaled an utterance phrased in the form of a question, and spoken in a polite tone, is to be considered a request that can be freely refused, regardless of whether the context of the conversation strongly suggests otherwise.” Despite the language and conduct of an officer who wishes to perform a search, so long as certain words are used to suggest an ask resulting in a form of agreement, the search is likely deemed as constitutional.

When people don’t fully know or understand their rights—which is quite easy to do because of the abundance of local and federal laws intertwined with myriad court rulings—they often wind up losing them. This is why some states have made efforts to inform individuals of their right of refusal—and it’s why Utah should follow suit.

The State Supreme Courts in Washington and Arkansas have ruled that individuals must be informed of their right to refuse a search, while Colorado has gone further to make this rule state law. Various places have attempted to pass similar legislation as well.

People living under these legal protections are no longer unintentionally ignorant of the law when asked to be searched, but too often their behavior of consent does not necessarily change. It’s not just a change of law that’s needed for people to exercise their rights properly, but a culture change as well. Everyday individuals need to understand and protect their rights, instead of waiving them away unnecessarily.

Our culture should reflect the language of the Fourth Amendment, where people have—and exercise—the right to be secure in their persons, houses, papers, and effects. The first step to accomplish this change in Utah is to ensure people are made aware of their ability to refuse consent, as other states have done. Hopefully, social progress will soon follow.