Cops love to have probable cause, but aren't above the "nothing ventured, nothing gained" school of thought when it comes to getting a permissive search.
How they go about getting that permissive search will hopefully always be of concern. None of us wants to live in a police state and you don't have to play the "six degrees" game to make the leap from "permissive search" to extorted compliance (at which point we're no better than the robber who lets his victim decide if he wants to get it in the nose or the wallet).
Should a permissive search precipitate an arrest and filing, any defense attorney worth his or her salt is going to dissect everything from the physical environment to the officer's attire, body language, and choice of words: More than one cop has found that the whole "easier to get forgiveness than permission" thing doesn't necessarily fly when it comes to judicial review.
Still, we've all been pleasantly surprised at what open-ended and consensual contact can garner. Indeed, where would law enforcement be without simple questions like "Do you have any guns or knives on you?"
Admittedly, such questions are about on par with "Have you stopped beating your wife?": If the subject says, "yes," he knows he's subject to search; if he says "no," then surely he'd have no reservation of your conducting a cursory pat-down search...right?
And many cops will ask the same question of a subject irrespective of whether they already have probable cause, or what manner of investigative concerns they have (e.g., possible drug transaction, probable gang member, etc.).
Often, this is because many cops have an almost scripted approach to a variety of situations: "Sir, may I see your driver's license and registration? Do you know why I stopped you?" Some aspects are scripted, such as field show-up procedures on witnesses' identification of suspects and Miranda warnings.
But routinely asking subjects, "Do you mind if I search you for weapons?" can become problematic, as noted legal expert Devallis Rutledge explains.
"I personally try to discourage cops from asking for consent by saying, 'Do you mind...?'" Rutledge says. "Either way the suspect answers, the defense attorney will argue that it wasn't consent: 'Yes' means 'Yes, I do mind, so you may not search;' 'No' means 'No, you may not search.' Either way, we lose, since we have the burden of establishing valid consent if that's our justification to search. The linguistic ambiguity created by asking 'Do you mind?' works to the suspect's advantage every time."
That's not to say it'll prove an automatic loss. Courts have recognized that a suspect's turning around and raising his arms to accommodate a search illustrates consent, even when a technical refusal has otherwise been made. But it's a poor practice to hang your hat on.
By asking if you can search for guns, narcotics, or other illicit goodies, you automatically open up the scope of your search. Feeling something that you recognize by size, texture, and configuration to be a dime baggie, heroin balloon, or zip-lock bit of nose candy is all fine and good. But it's even better if you expressed your desire to search for such up front.
Some cops will say, "Wait a minute! I don't want to ask him that! The moment I do, I run the risk of him running on me, trying to destroy the stuff, or fighting with me!"
Valid concerns, and all the more reason you may want to handcuff or otherwise secure a subject between the time he or she gives you permission to conduct the search and when you actually conduct it.
True, they have the right to revoke your permission at any stage, but that's a given anyway: It's been my experience that cuffs were never a deal-breaker. Let's face it: Ninety-nine and 44 percent of the time we're not going up against Professor Moriarty here. And woe unto them if their synaptic doldrums are even further fried by the very objects of our grabby pursuits.
A little charm can go a long way, too. By catering to their ego without emboldening them - "You play college football?" - you might even get them empathizing with your desire to secure them before searching.
While any subject can run, fight, destroy evidence, or otherwise turn a situation to shit, most don't want to make things worse for themselves than they already are, and the moment you're in their personal space, the more inhibiting the prospects for their doing so become.
Might a lawyer protest the totality of your actions as "coerced compliance"?
Yeah - but if it comes to that, it probably means the SOB was dirty for something and you ended up arresting him (which will make subsequent justifications for searches easier, i.e. he has been known to carry guns/dope). My number one priority was always officer safety first.
I've heard cops take a variety of approaches in going for a search:
Assertively: "For my safety, I'm going to search you for weapons."
Narrowing the scope: "If you don't have any objections, I'd like to search your car. Do you?"
Going for the whole kit and caboodle: "May I search you, your car, your dog, your iPhone, and your girlfriend?"
Now, some of this is obviously being written with tongue firmly in cheek. But one point is inarguable - cops can stand to be more aware of how they go about acquiring permissive searches.
Dissipating a person's anxiety can go a long way toward acquiring that compliance. Indeed, the more rehearsed or scripted your request may seem, the more it will seem to the suspect that it's simply your way of engaging people, not that you're especially curious about his or her actions in particular.
Finally, don't sell humor short. It can prove disarming in more ways than one: "Do you have any guns, knives, bazookas, paper scissors, bug repellant, pro-Obama literature, or anything else that may endanger my peace of mind?"
Given the ongoing judicial second guessing of our probable cause, permissive searches, and "exigent circumstances," one might reasonably ask: Will there ever be a failsafe method of gaining access to those things we'd like to?