[conspire] OT: More about conversations with police (was: Here in the 100-mile border zone)

[Rick Moen]

Repeating a prefatory note from before (and deliberately breaking
threading in the headers, because I'm reviving a quite old thread):e

  This is a technical mailing list primarily concerned with Linux and the
  CABAL LUG, but the real world spills over in interesting ways.  One is
  that CABAL's meeting location, Chez Moen, is inside what the Department
  of Justice declared in 1953 to be in the 'border zone' -- within 100
  nautical miles of an 'external boundary' of the United States.
  Actually, it's also within a 25-statute mile 'border zone', too.

If I ever take these OT (off topic) discussions too far for people's
comfort, just let me know.  In this case, I was reminded of the matter
of searches by law enforcement by an excelent article at The Intercept
(https://theintercept.com/2019/08/31/dea-amtrak-passenger-search-albuquerque/)
that is about DEA 'cold consent' searches on Amtrak and long-distance
buses.  It's an engrossing article, worth your time.  (This sort of
thing is even more common during traffic stops of cars, but the
Intercept article isn't about that.)

One thing I find striking, but not surprising, is that the interviewed
DEA agents just go from one end of an Amtrak train to the other asking 
every single passenger's consent to search their bags and roomettes, and
everybody says yes.

It's not surprising because police asking permission to search seem
intimidating -- it's their job and their professional skill -- and it's
natural to flinch and consent, if you haven't considered the matter in
advance, done the figurative math, and realised that a polite,
non-aggressive 'no' is always the correct answer.  So, part of my point
is to stress that every reader should rehearse the scenario in his/her
head and prepare in case it ever happens.

As I wrote in the earlier iteration of this thread, I once consented to
a warrantless search, and nothing bad ensued, but it could have -- and
the point is that if I'd game-planned such a police encounter, I'd
absolutely have said a polite 'no', and would have been better off:



> [Alameda County Sheriff deputies] continued to hold me for about two
> hours. and, shortly after the pat search, asked my permission to
> search my car.  This was where I made another small blunder, albeit
> the effects were harmless:  I said 'Sure, go ahead.'  I was thinking,
> hey, my car is a mess.  You want to further ruin my day with an
> inapproriate police encounter, fine, I'll ruin yours by giving you
> permission to rummage through my big mess.
> 
> They didn't find anything unlawful, as I lead a boringly law-abiding
> existence.  Days after the fact, I had two troubling realisations:
> 
> (a) If for some reason, an officer had reason to dislike me, that
> would have been the opportunity to plant evidence of a crime.  I was
> unaware of any reason Alameda County would be after me, but it's a
> non-zero risk, and giving permission for search enabled that risk for
> no benefit.
> 
> (b) Furthermore, it belatedly occurred to me that persons I'd given a
> lift in my car might not have been boringly law-abiding and might
> have, say, accidently dropped bag from their drug stashes in my messy
> back seat.  Fortunately, they hadn't, but it was a risk.



So, to review, when the police ask if it's OK with you if they search
[anything at all], your answer should be a polite but clear 'No, I don't
consent to any search'.  When, inevitably, they try to harass you
repeatedly by demanding that you justify non-consent, just politely
repeat what you said and ignore the question -- because you should fix
firmly in your mind that you have absolutely zero obligation to answer
questions, except (in some US states, _not_ including California) giving
your correct name when asked.  You have no legal obligation to say
anything else, no obligation to answer any other questions at all, and
no obligation of any kind to justify that course of action.

If the police feel they have the legal right to search you or your
belongings without your consent -- and there are situations where this
istrue -- then they will do so, and you should in no way physically
interfere -- but _every_ time they ask you to consent to something, say
no, and politely decline to explain or justify.

If they get belligerent as some DEA officers were described as doing in
the article, just be polite, peaceful, not physically obstructive, but
consistent in saying 'No, I do not consent'.  If they claim you are
obliged to do otherwise or to answer their questions, I'd recommend the
answer I would use:  'Well, officer, I don't believe you are correct, so
I guess you'll have to bring this up in front of a judge, so we can both
learn the truth.'  And never sign anything the officers tell you 
you should or 'must' sign.  

Important:  Always remember that police _very frequently lie_ to
subjects, to badger them into statements or actions the police can use to
justify arrests or further searches, and this absolutely includes lying
about the law and about your legal rights.  (With exceptions, this 
police lying is _lawful_, and is part of their standard bag of tricks.) 
If a policement is asking you questions, then you are a subject.  Your
goal is to say and do nothing the offer can use to your detriment.  It
is not to make the officer happy.  He/she is not your friend.  His/her
claim to be 'just doing my job' and wrapping himself in the flag and
suggestion that you are not 'cooperating' and will land in trouble is
police bushwah and should be completely ignored.

I am _not_ giving you dangerous advice that will get you into trouble.
I am giving you standard advice that everyone knowledgeable about 
the police and criminal law in the USA gives to the US public, advice
that will _avoid_ possible trouble.


Most of the article in The Intercept concerns, of course, DEA agents 
doing searches of entire Amtrak trains pursuant to what I call the War
on Drugs Lacking Major Corporate Sponsors.  People of good will of
course disagree on that matter of legal policy.  Years ago, long before
California legalisation of marijuana, my boss's boss, a good friend, was
a consummate stoner and Grateful Dead fan (but I repeat myself),  He
said that people like me, who are absolutely _not_ users of illegal
drugs, were essential to marijuana reform, if only because we cannot be
intimidated by threat of drugs prosecution.  (Also, he said, getting
stoners to bestir themselves to participate in policy disputes faces
obvious pharmacological obstacles.)

The article highlights the DEA agents on Amtrak trains and long-distance
buses, after getting travellers' oral (if grudging) consent to search
their bags, and finding no drugs, nonetheless seizing and taking away
those travelers' personal cash supplies, a (deservedly) controversial 
procedure called 'civil forfeiture'.
https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States

It works like this:  You are travelling with $4000 in your own (entirely
lawful) funds, in cash, to deal with a family emergency at your
destination.  Let's say you are traveling one-way from Kansas City to
Los Angeles on Amtrak's Southwest Chief.  In Kingman, AZ, two DEA agents
board the train, get the passenger manifest, and start from one end of
the train to the other pressuring each and every passenger to consent to
them searching their bags and roomettes.  Everyone seems to be saying
'yes', They reach you, and you say 'yes' because you fear that being the
only passenger to say 'no' would get you into 'trouble'.  The agents
search, they find no illegal drugs (because you arean't carrying any),
but they find the $4,000 and tell you they are 'seizing' it because they
think you are a money courier transporting illicit drugs monies.

You protest:  This is my hard-earned savings, and I'm on my way to
Burbank where Mom needs help paying for necessary medical procedures.
The agents reply that they think you're lying, and if you disagree
you'll have to go to court, pal.

If you'd only said 'No, I don't consent to any search', and politely
declined to justify/explain being the one passenger to do so or to
answer any questions, you wouldn't be in this situation.  Lacking
probable cause to search your bags, they wouldn't have come across your
$4000.

If you want your $4000 back, the law says you must appear on the day of
the civil forefeiture hearing, at the designated venue.  Let's say this
is Federal District Court in Phoenix.  That sucks, because you need to
be in Burbank for Mom, and you live near Chicago.  You're down four
grand, and suddenly to get it back you must travel to Phoenix, stay a
few days there, and probably hire a Phoenix attorney.  As it's a
_civil_, rather than criminal, proceeding, DEA must merely convince the
judge according to a proponderance of the evidence (a much lower
standard of proof than 'past a reasonable doubt' as required for
criminal trials) that your $4000 is tainted drug money.  Your burden of
proof is to make 51% of the evidence (a 'proponderance') shown indicate
that it's clean money.  Also, to contest the forfeiture, you must put up
a bond (called a 'penal sum') of $5,000 or 10% of the value of the
claimed property, whichever is lower, but not less than $250.  So,
again, more drain just to get your money back.

Most civil forfeitures thus go uncontested, because of the expense of
fighting back.  So, DEA and other police agencies get free money.
This is of course fertile ground for vast abuse -- which I might call
quite the understatement, actually.
(https://www.newyorker.com/magazine/2013/08/12/taken)

And you can avoid being in that situation, in the first place, by just
politely saying 'no' to Officer Friendly even though everyone else is
saying 'yes', and politely decline to justify your polite refusal or to
answer any questions of any kind (except to give your correct name).

Getting it right is actually that simple, and entire trains and buses
full of passengers routinely get it wrong -- often, to their lasting
regret.


So, in conclusion, I'll re-post my summery from last time:

> In all three of these encounters, I noted running themes:
> (a) Police aggressively act as if they have rights they actually lack.
>     If you concede, you lose.
> (b) Talking very little, being polite, and making clear you'll not fight 
>     them here, but will savage them in court, is your best plan.
> (c) If they ask your consent for a search -- any search -- say no.  
>     You have zero obligation to explain.  Just say no.
> (d) When they say you 'must' answer question X, or 'must' give
>     information Y, say you'll consider their request 
>     whevever a judge confirms that you must answer it.  Then, say 
>     nothing more.
> (e) Be peaceful, physically cooperative, and silent.  Hold your
>     powder until you've spoken with legal counsel.  Then, take their
>     lunch in court -- the right battleground.

I'll add that, doing things right makes it _much_ less likely you'll end
up in court, too -- let alone abandon your lawful money or other property 
to a civil forfeiture case because you can't afford to fight back.