You know what I tell people who are in my office because they let the police search their car and, well, the police found that bag of weed that the “arrestee” had no idea was stashed in the center console? I don’t initially tell them anything. First I ask them why they would ever let the cops search if they knew they had weed in the car.
Of course, everybody lets them search because “they were going to search anyway”- which is probably true. Although, in my mind, that’s actually more reason to tell them not to. Either way, if you tell them they can search, they will. If you tell them not to search, they will then, too. Or, so people think.
It matters if you don’t consent, though. If you tell them not to and they do anyway, your lawyer may be able to get that crack pipe that your friend accidentally left in your jacket pocket suppressed.
I say that you may be able to get it suppressed, because whether you consent is not necessarily the end of the game. Even if you don’t consent, they can search if they’ve got something law people call “exigent circumstances.” Exigent circumstances is a really confusing way to describe something that gives the cops a real belief that you’re breaking the law. Like, for instance, when they pull you over for speeding and when they’re getting your license you’re wearing your “I HEART Weed” shirt, you’ve got a smoking one-hitter sitting in your lap and a large cloud of burnt cannabis is escaping your open window.
In that case, it doesn’t matter if you give them consent. They’re going to search the car, and the judge will be ok with that.
It doesn’t even have to rise to that level, though. Generally speaking, if you’re a jerk to the cops they’re going to find exigent circumstances. I mean, they may not actually find exigent circumstances, but they’ll end up being in the police report and being testified to in front of the judge.
So you should just go ahead and be polite, right? Right…. wait. Maybe.
That’s what Joshua A. Fontaine did in the great state of Ohio. According to the recently decided case of Ohio V. Fontaine a lawman stopped Mr. Fontaine. During the stop, the lawman became “suspicious of criminal activity.”
Why was he suspicious, you ask? Because Mr. Fontaine was too damn polite, of course:
“While speaking to Mr. Fontaine I felt that his body language and his behavior was a little bit unusual. He was extremely — like almost overly polite, and he was breathing heavily at times while I was talking to him.”
Almost overly polite. Almost. Overly. Polite.
That’s what a cop in Ohio used as the major part of an excuse to pat Mr. Fontaine down for weapons, put him in a squad car, and call the K-9 cop.
Almost overly polite. That’s just silly.
Thankfully the trial court agreed, and tossed the whole case. Of course, the prosecutors couldn’t let that go, so they used taxpayer money to drag the case on through an appeal. The Appeals court agreed with the trial court:
“We agree with the trial court that “overly polite” and “heavy breathing” are not sufficient indicators that give rise to a reasonable suspicion of criminal activity.”
So, there you go. If you’re a jerk, the cops are probably going to search. If you’re polite, they’re probably going to search… but you might win on appeal. Isn’t that fantastic?