Say NO! to Police Searches! Really. Part V

An oldie but goodie (still relevant) from the archives at Free Republic:

Complete Link:

http://www.freerepublic.com/focus/fr/609755/posts

JUST SAY NO TO SEARCHES!
By Pat Barber

Posted on Wednesday, January 16, 2002 21:19:00 by ATOMIC_PUNK

A chief deputy sheriff told me, “We rely on people’s ignorance to get their consent.”

Most folks don’t know they have a constitutional right to refuse a police search request…and a lot of others are afraid to say no.

For the past year, police agencies across Texas have stepped up what they call “consent” searches of vehicles on our highways. The unprecedented numbers of searches are mainly the push of the state’s 47 federally funded Drug Task Force(s) with a major assist from the Texas Highway Patrol and local officers. An officer will stop a traveler on some pretext such as a seat belt or speeding violation, or as has been documented in many cases — no valid reason at all, get the driver out of the vehicle, ask, “Do you have any guns or drugs in your car?” And when the traveler answers in the negative, the officer says, “Then you don’t mind if I look in the trunk, do you?” The officer is standing there in his mirrored sunshades, black Task Force uniform, pistol on his hip, and the traveler has nothing but a limp ego.

Most people feel intimidated by this kind of pressure. They don’t know their rights, believe they will be searched even if they do refuse, and give up. Police officers are not required by law to inform the traveler that he or she has an absolute constitutional right to refuse a search request, that a refusal cannot be used in any way to imply probable cause of criminal activity or that they will be free to leave if they do refuse.

A chief deputy sheriff told me, “We rely on people’s ignorance to get their consent.”

An old DPS trooper friend tells his family and friends to say to these black-shirted and black-booted “storm troopers” (task force officers) the following: “Officer, I don’t have anything to hide, but I don’t want you pawing through my stuff.” Sometimes a refusal will bring threats to get a warrant or a drug dog, but if the officer really had probable cause to search, he wouldn’t be “asking” for a search; he would be “telling” you.

However, my data indicates that a firm and consistent “no” will work most of the time, regardless of their threats. An officer stopped my daughter for speeding and wanted to search her pickup, although there was no evidence she was carrying contraband. She told him she was late to meet her vet — that was why she was speeding and that she didn’t have time for a search. The officer threatened to go to the JP for a warrant.

When she heard the magic word “warrant”, she thought she didn’t have any choice.

What she said was, “Officer, my father is a lawyer, and he told me that if I ever gave consent for a search, he would kick my butt. I’m sorry; I can’t do it.” The officer angrily said, “Take your ticket and get out of here.” Her quick answer saved her a lot of unnecessary humiliation, and is recommended for three reasons:

1. Her response was funny (although the officer obviously didn’t have a sense of humor)
2. It was evident she had access to legal counsel
3. The officer knew she was acting on advice of counsel.

I have had many complaints from average citizens who are upset about the new highway search terrorism. One well dressed lady traveling in a late model suburban was seen standing by the side of the road trying to hold her hair together in a 20 mph wind while officers threw her possessions on the ground. After the officers finished the “consent” search and left, a local citizen stopped and helped her pick up her things. I’ve seen vacationing families with children standing in the summer heat in the bar ditch while officers went through their suitcases. I saw two gray-haired ladies standing in the cold, last winter. I’ve had hundreds of complaints from citizens who felt like they had been mistreated for no reason. I may be old-fashioned, but this kind of dangerous and ineffective police behavior is offensive to me, and I would expect, to most Texans.

The “shotgun” search approach may occasionally net smugglers, but at what price?

Most folks don’t want to see us turn into a third-world police state where you can’t walk across the street without a police dog’s nose in your crotch. My main goal is to create a fundamental debate about roadside searches. Do they yield enough criminal cases to justify intrusions into glove compartments, trunks and luggage of law-abiding travelers?

While the police agencies are quick to seek publicity for their busts, data about “failed” (nothing found) searches is suppressed. No police paper trail is kept. If we ever got an accurate assessment of what they are doing, we would likely see an enormous number of citizens are being terrorized and harassed by an ineffective policy. They can’t stop the flow of drugs. How far do we allow them to erode our constitutional liberties in an unwinnable war on drugs? Tell your clients to Just Say NO to Searches!

Pat Barber
Attorney at Law
102 W 2nd St.
Colorado City TX 79512
915/728-3391
pbarber@bitstreet.com

 

ABILENE, TX  Pat Barber used to be the prosecutor for Mitchell County, Texas. So when his car was pulled over there on Interstate 20 last spring by uniformed officers of the West Central Texas Inter-Crime Task Force, he knew he hadn’t violated any traffic laws by tapping his brake lights to switch off his cruise control. It certainly didn’t give these troopers reasonable cause to search his car.

        “I’m a lawyer, and not easy to intimidate. I am by trade trained to be an adversary and to resist police pressure,” Barber tells HIGH TIMES. But when the troopers “began a general interrogation not relevant to why they stopped me, about where I was going and what I was doing, ‘ he confesses,”I felt intimidated into giving them that information.”

        As a criminal-defense lawyer, Barber knew that he wasn’t legally obliged to give these task force cops any more information beyond that contained in his driver’s license, registration and insurance card, but he wound up letting them search his car anyway. Then, in retaliation, he put up a billboard on his own land alongside 1-20 in Colorado City, a big, patriotic red, white and blue sign admonishing drivers, JUST SAY NO TO SEARCHES.

        The sign has a call-in number, (915) 728-5505,offering information about the Fourth Amendment.”I am offended by this sort of police behavior,”says Barber on the recording, “and I feel a duty to inform citizens about their rights.” Specifically,their right to resist police intimidation. When roadside cops tell a driver to consent to a search or they will get a search warrant, Barber explains,the cops are effectively admitting that no reasonable suspicion exists for a search in the first place; because if they did have a valid reason to search, they wouldn’t ask to do it. Any driver who says “yes” instead of “no” to a police search request, then, is just steepening the “slippery slope” to the abandonment of traditional citizen rights in America, he points out.

        As he expected, Barber’s phone began ringing off the hook as soon as the billboard went up last June, attracting outraged legions of 1-20 drivers who’d been pressured into car searches between El Paso and Dallas. It also began attracting local news reporters, and the news reports attracted the state department of transportation. And before long,the DoT office here was fining Pat Barber$1,000 a day for his billboard.

        The Texas Highway Beautification Act of 1965, promulgated by then-First Lady Bird Johnson, requires that roadside billboard messages have to be approved by the DoT Right of Way division in Austin, they advised Barber. And there was no way the DoT was going to approve JUST SAY NO TO SEARCHES, he was assured. And as long as he kept that sign up, Barber was going to be fined $1,000 a day.

        Car searches pay off big, confirmed the Taylor County district attorney “Since the task force began in 1992, they have seized drugs with a street value of more than $600,000,” he assured reporters. “The Force,” explained its commander,Billy Schat, “is committed to fighting the War on Drugs, and we rely on the cooperation of citizens.”Certainly the West Central Texas Inter local Crime Task Force, Commander Schat protested, never hears drivers complaining about its alleged intimidation tactics.

        If anybody believes that,responded Pat Barber, “I have some heavily timbered West Texas land to sell them.” To this day, he’s getting calls from interstate truckers telling how they never knew, before seeing his sign and calling the number, that they could turn down Task Force troopers’ routine demands to search their personal cabs along with their commercial trailers.

        So obviously Barber’s patriotic billboard message was reaching its audience and transmitting its message, though at the cost of a grand a day. “I have two kids in college,”Barber explained when he took the DoT to court in Travis County, charging unconstitutional interference with his First Amendment rights to communicate a message.He simply believed that the “unprecedented numbers of interstate travelers being pressured into searches of their vehicles by state police officers deserve to be advised of their rights, he told judge Suzanne Covington, Not only was his message non-commercial, but it served as well as a “detour” sign in “the protection of persons’ lives and property from unconstitutional state-police searches.”

        And after two weeks of deliberation, last Oct. 16 Judge Covington formally agreed that since Barber could “probably prevail” in proving that the Highway Beautification Act is unconstitutional, he need not worry about any fines. Until a full trial in April, she enjoined the Dot from taking any action which might “prevent Plaintiff from communicating his noncommercial message by a means uniquely suited to conveying it to the intended recipients.”

        By next month, Pat Barber and his Austin attorney, Joe Crews, expect to have not only struck a blow for all Americans’ Fourth Amendment privacy rights, but for free expression as well. “If we win,” Barber points out, “it’s possible all of the lower 48 states will have to rewrite their highway codes.” Because believe it or not, except for Hawaii and Alaska, putting up a JUST SAY NO TO SEARCHES sign could be prohibited anywhere else in the country where law-enforcement officials might object to it.

        UPDATE 11/05/99 The Dallas Morning News

        Lawyer burns sign after judge says “NO” to billboard that opposed police searches of cars

        A West Texas lawyer stood beside Interstate 20 at high noon Thursday and burned down his billboard advising travelers to “just say no” to police who ask to search their vehicles for drugs. Pat Barber, 53, destroyed the sign in front of television cameras and reporters gathered next to the busy highway on the outskirts of Colorado City, a town of 4,000 people about 65 miles west of Abilene.

        “I hope our dramatic removal of the sign will emphasize its message to all who see it,” Mr. Barber said. “Just say ‘no’ to searches.” Mr. Barber, who operates a one-man law firm in Colorado City, has announced his candidacy for a seat on the Texas Court of Criminal Appeals. But he said the sign and his decision to destroy it had nothing to do with electoral politics. Mr. Barber said he was forced to dismantle the homemade billboard because the Texas Department of Transportation was threatening to fine him $1,000 a day unless it came down.

        In court, the agency alleged that the sign, which sits on Mr. Barber’s property next to a frontage road, violated the Highway Beautification Act. Mr. Barber insisted that it was covered by his First Amendment right to free speech. Last week, state District Judge Mary Pearl Williams of Austin announced her intention to rule against Mr. Barber.

        “It’s obvious to me we need more judges who take their oath to support and defend the Constitution more seriously,” Mr. Barber said. “Our lawyers will appeal, but for now the sign must go.” Thursday’s fiery ritual ended – at least for now – a running battle between Mr. Barber and police who resent the implication that they are acting illegally by asking people to search their cars after routine traffic stops.

        Mr. Barber’s sign, visible to westbound traffic on I-20, said in hand-painted letters, “Just Say No to Searches” and listed his telephone number. He said the sign was his response to an Abilene-area drug task force that began using the “consensual search” technique in Colorado City and surrounding Mitchell County in 1998. “They count on people not knowing their constitutional rights, and the sign was meant to combat that,” Mr. Barber said. “I was seeing families with their belongings spread out on the side of the road.”

        Police agencies throughout Texas have said the consensual search technique can yield big drug seizures. Oddly enough, they said, drug couriers often consent to the searches. Officers deny that they coerce people into allowing the searches. But Mr. Barber said he and other critics suspect that the technique is not effective because most of the vehicle searches do not turn up any drugs and leave behind innocent, frightened travelers.

        Mitchell County Sheriff Pat Toombs said he and his deputies monitored the sign burning for safety reasons. “It went fine,” he said. “It’s a conversation piece that won’t be here anymore, though.”

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One response to “Say NO! to Police Searches! Really. Part V

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