Does handing keys to police under duress constitute consent to search? Suppose a police officer demands, through a closed window, to search your car or dwelling. Knowing your rights you say, "I do not consent to a search." The officer then declares, "I don't care whether you consent, I am going to search, and if you don't open this door, I will break the window to get access." You know two things: There's no reason for the officer not to make good on his threat. Regardless of whether he has probable cause, you're going to have a broken window if he does, and you will probably never be compensated for that. If at that point you open the door, or give the officer the keys, even while saying, "I do not consent to your search," does that provide any basis for a future claim that you did consent to the search? Or can you always say, "I complied under duress and protest" to have the search ruled non-consensual in any judicial proceeding? I suspect the answer is that latter, but I'm wondering: is there any case law to support that answer? (Or is there any case that refutes it?)
The answer is somewhat similar to the "corollary" question, in that this wouldn't be the only information taken into account at a motion to suppress and one would need know why the officer requested (in your scenario demanded) to search you in the first place. There are scenarios whereby he could search you without benefit of a warrant. Was he chasing you from a crime scene? Were you attempting to flee? Did he see something illegal before demanding the search that may have made it legal despite you thinking it not? The analysis is different if you are in the car versus in your house. That said, regardless of where, a consent search is just not likely to happen in this way. In your car, the officer has the right to take your keys to "secure the scene," or if there is a reasonable suspicion that you may attempt to flee. Typically, the officer will say "turn off your car" without taking your keys. Despite what's typical, though, they certainly can take your keys if circumstances make it necessary and that (the mere taking of keys) does not constitute a search. Keep in mind that the police can search a car without a warrant in a number of circumstances, without your consent, that would not be available to them with a dwelling. Courts will typically give police much more latitude to search a vehicle than a home. Under the "automobile exception" to the search warrant requirement, individuals have less of an expectation of privacy when driving a car and there is also a much greater chance of losing the evidence in a car vs. a dwelling, since it's mobile. Generally, the police can search your car if: You have given the officer consent (in this scenario you've not &ndash; unless you hand them the keys without protesting &ndash; and then this would be considered implied consent); The officer has probable cause to believe there is evidence of a crime in your car; The officer reasonably believes a search is necessary for their own protection (e.g., they can search for a weapon, if they have reasonable suspicion); You have been arrested and the search is related to that arrest (such as for drunk driving or for drugs, they can search for alcohol or drugs). There are tons of contextually specific rules that dictate when each of these situations is OK, and when they're not, as well as where they can search under what scenarios. It is not a one size fits all analysis. In fact, warrantless and consent searches may be some of the most variable analyses criminal attorneys and judges undertake to explore. The law on these topics is voluminous. Searching your car after you've given the officer the keys, assuming there was no basis and you actually said "you're not consenting," can result in suppression, but not necessarily as the fight is a lot tougher when it comes to a car. (E.g., if you said no earlier, but then handed the cop the keys later without renewing the objection, this could be considered an implied consent.) Similar to the other question, there is also going to be a whole other side to the story, with evidence aside from your testimony dictating what the ruling will be. A dwelling is different from a car, although your question makes some assumptions here that I would find very hard to see happening in real life (having represented both police, municipalities, and defendants to criminal searches).... It would be highly unlikely for an officer to threaten to break in like this ... especially in a dwelling where neighbors and passersby can see what's happening and would not only watch, but would probably video it. This is not to suggest that threats and actual wrongdoing doesn't happen, it's just not typically in this way. Police know the law. They rarely do things so blatantly unlawful that not only will nearly ensure that any evidence is inadmissible, but (in a case like this) where they will also probably lose their job. Short of a pursuit where the police are chasing someone into a house, I have never heard of a forced entry in a situation like you're describing. While we don't know the circumstances leading to the encounter, I am assuming that the search isn't pursuant to a chase, since you're having a discussion with the officer and if you're chased from the scene of a crime and run into your house, they're coming in. They are not having discussions. However, since we don't know what the circumstances are that lead to you being approached in the first place, it's difficult to analyze whether he has the right to enter warrantlessly. What we do know is that with a dwelling, it is much less likely to be lawful. As with the other question, the analysis as to whether consent was given or not is far from simple. Suspects are much less likely to give consent to search a dwelling as they are a car, and if they do, the search is often limited to a certain area, so chances of suppression are much better. That said, others will often give consent to the police when requested of them (spouses, kids, landlords, hotel owners, etc). Just imagine ... there are literally thousands of warrantless searches done every single year in the U.S., nearly all of which are alleged to be based on some form of consent. Assume every one of those people has a lawyer; that means nearly every one of those cases is arguing the consent was bad, some way, some how. Duress is one of the most common arguments when someone gives permission; either explicitly (like what you are proposing), implicitly (they came with 10 grimacing cops, so the guy thought he didn't have a choice). Most of the time, however, there is no duress, people just simply didn't know they can say no, or they think the cops won't find what they're hiding. Cops can do a lot of things to get you to allow for a warrantless search. They can even lie to people to get them to consent, and officers are not required to notify the suspect that he has a right to refuse to consent (however, telling the suspect they have the right to refuse is helpful to rebut the coercion argument). In United States v. Mendenhall, "The fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive." Keep in mind, a big part of the reason why these scenarios are unlikely is not just that the police can find a way in that won't be so challengeable, if they really can't get a legitimate warrant and need to find a deleterious way in. It's also because 9 in 10 times when a police officer does a consent search, the suspect signs a consent form. That's not to say that people don't get coerced or get searched due to duress, they do. But typically not in so blatant a way. There are shades of grey in most of these cases. So, to answer whether you can get the search suppressed if it leads to an arrest under these facts; the only answer that is definite, is that nobody can be sure. If consent searches, their exceptions, and all ways the evidence gets in and the evidence is kept out interests you ... read these two law review articles. There are probably 200 cases footnoted between them! http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/MaclinT011508.pdf http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-81-6-Sutherland.pdf
was the idea that all searches and seizures, reasonable or otherwise, require a warrant? No. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. This means that unreasonable searches are prohibited. A prohibited search can't require a warrant because the search is prohibited. If a warrant was issued for an unreasonable search then the warrant was issued in error.
Yes to everything. Justified use of force is assault / battery / homicide (as appropriate). "Assault" means that a person has placed someone in fear of their life or person. "Battery" means that a person has physically struck someone in some way. "Homicide" means that a person has killed another human. None of these definitions speak to the legality of the action. You are right about the example being assault. Justified use of force is de facto legal. Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal. Police are picky about what they investigate, and prosecutors are picky about what they charge. If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa. Justification is an affirmative defense against charges of assault / battery / homicide. An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence. When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient. "I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that. "I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification.
As the previous reply says, you can't steal something if it was yours already. That's by definition – stealing can only be of something that isn't your possession. However there are three ways you can have a problem despite this, partly referred to in another answer: If there is a law or other legal basis for the other person to have control and keep that object, either for a while or indefinitely. So if your phone is legitimately taken by a police officer, you can't "steal" it but you may still not have the right to take it. But this would be treated as some other crime, not "theft." If you cannot gain legal access it, and would have to commit another kind of crime to get it back. So you can't legally get back money by hacking someone's bank account, or defrauding them, or get back an object by breaking down their front door or using illegal force, or by making unlawful threats and blackmail.On the other hand, if you were invited by them to visit their house (or persuaded them to let you visit) and you found it and took it back while visiting under their consent, or they gave you a lift and while in the car you rummaged in the glove compartment and saw your property there, then the issue of legal consent for access is potentially a non-issue, meaning that taking it back under those conditions (even against their objections when they realised) may well be technically legal in many cases, depending on the exact facts of the case and applicable law. (less likely) If something has happened that means, technically, it isn't yours any more, or never was yours. For example, you accidentally give or throw your valuable phone away in error and someone else legitimately (in law) assumes ownership afterwards, or sign away or renounce something without realising it, or allow someone to use something in a way that gives them some ownership-like rights over it, so that by law you are deemed to have relinquished or waived some/all of your rights as an owner (the other person was honest and didn't defraud you), and you later try to take it back without consent, then in principle you could now be seen as stealing it back.You might also believe something is absolutely yours but in fact legally you don't own it and never did. For example you 'bought' some music or software, or a right to use something under license, and believe you actually own it or that you have a moral right to own it. So, later on, you sell it, dispose of it to someone else, or treat it as yours, when in law, it never was yours to do these things. Technically depending on the situation and exact wording of the law, this might be construed as stealing, in some cases and some jurisdictions. Between these legal limits, there is a grey area where you can get it back in practice despite an illegality. For example if the unlawful access is so minor you are sure it won't be a criminal issue, or you're sure it wouldn't be reported, you might chance it. But that's not a legal issue as much as a personal one. An interesting variant of this applies in English law, although I doubt it has any legal relevance in US law. In English law, "theft" was defined by the Theft Act 1968 as, "A person is guilty of theft if he dishonestly appropriates property belonging to another with intention to permanently deprive the other of it". This meant that a person who could show a court that they did not "intend" to "permanently deprive", or did not act "dishonestly" or "appropriate" the property (treat it as if they were its owner), might in fact have a strong legal defence against a charge of theft. Update from comment below "If you saw it in a shop would you be able to take it and run away?" You wouldn't have to. In almost all cases if something isn't legally yours, you can't legally pass ownership to anyone else, such as a store, whether for money or not, because it wasn't ever yours to pass good (legal) title. So the item is still owned by its original legitimate owner, meaning the exact same legal position still applies as above, if you had discovered it was in someone's house. It could change hands many times (not just once) from thief to fence to store to shopper to friend as a gift, and even so, the same would still apply - it would remain yours in law. If anything it's a bit easier if you saw it in a shop. A shop usually consents to members of the public entering - they don't have to ask normally! - and you might ask to see the item or look closely (if it's locked in the window). You now have it with consent and without any crime. If confident, you can walk out completely legally with your possession. (Tracking down the "rogue" or recovering any money paid for it, is their problem not yours in the eyes of the law). That said, realistically you wouldn't do it that way. This is slipping into personal view rather than law, but this is how I'd do it instead of "grab and run." Assuming a "typical" store and store staff, you would ask them to fetch the manager, and you would explain firmly that you claim this is your stolen property, and therefore not owned by them (nor do they have any rights to make any decisions about it), and you are taking it back. You would offer sight of ID or some means of contact, telling them this is so that they have a means to contact you, if they wish to dispute it via lawyers or police. You would offer to wait for the police if they wish, but maintain that you are not parting with it and they may call the police if they disagree; when they arrive, tell the police exactly the same, and that you have given your ID and waited there, as a mark of good faith, and invite them to come back with you to see where you live or proof of purchase or anything else, if relevant. You would tell the police that if they think you have committed a crime according to the law then they must of course arrest you for it, but if not, you now wish to go. You would meet any police request to give it to the police or store by asserting that it is your property and you would rather not, or by asking if you will be committing a criminal offence (if so which) if you refuse, and refuse if you feel able to do so. Then follow whichever way it goes. You would do these things because they are fair, reasonable, and they mark you out as someone asserting a right, not a thief yourself, and they reduce the odds that you will be taken for a thief, or meet with violence in their efforts to recover it. After all, the storekeeper and police can claim "reasonable belief" for any of their actions afterwards, so it's best that you reduce their likelihood of something nasty.
First off, you cannot booby trap your property, period. It is both illegal and tortious. But, as you noted, there are already questions/answers that deal with this issue. Sure enough, if the police get a no-knock search warrant, that in and of itself is the Court order allowing entry by any means necessary. When the officers, there by right of law, breach the outer perimeter and stop at the warnings, they will not be seeking any other court orders to have you allow them "safe entry". Their warrant gives them all the right they need, as probable cause of crime and violent intent or intent to destroy evidence was already presented to a judge. If, in real life, you actually put up signage or state explicitly that they're being forewarned that you intend to harm, trap, maim, or otherwise make it unsafe to enter; or that doing so will result in an attempt to destroy evidence, that is something they have already assumed (hence the seeking and granting of the no-knock vs. a regular search warrant). However, the signs in and of themselves are not protected speech, but rather overt threats, and that would put you in a very precarious position indeed. If the police get a "no knock" warrant (the most invasive, difficult to get warrants, whereby there is a grave risk of destruction of evidence or injury to persons), the police will ensure they have safe passage &ndash; they've come prepared for dangerous entry long before your signs, but once they see them, you could rest assured they will take them as they are intended: as a direct threat to their safety, and they will deploy a SWAT or other heavily armed entry team (who is usually there anyway for these dangerous entries). You could expect things like smoke/out canister and teargas, flash bangs, and heavily armed and well armored officers attempting to force you from your dwelling. Presumably, if you need to disarm traps to escape the situation, they can enter. Assuming you're home when they invade with chemical weapons, whether you come out or not, they will force you to disarm whatever booby trapping you may have in place that may destroy evidence, likely walking you in as their human shield in the event you're lying about any dangerous ones. That is probably your best case scenario. They may just decide to throw you through the perimeter once they get their hands on you, just to see what happens! If you don't exit and are home or if you are lucky enough to be out, the bomb squad, ATF, and SWAT will converge on your property in less than typical means. Because from your warning they can assume some incendiary or explosive device exists, bringing it into the jurisdiction of other agencies. If they cannot disarm the trap, they would send a robot in first to set it off, or cut through your roof, or knock down a wall &ndash; whatever it takes to get in without using a typical means of ingress/egress, so as not to chance your trap. Regardless, you can rest assured that they will get in, and you will pay for the trap you set for law enforcement. Further, to whatever charges you'd have been faced with from evidence flowing from the original warrant will now be added additional charges like attempted murder of a peace officer; if you have any roommates or known associates: conspiracy to do those things; attempted destruction of evidence, criminal interference with a police investigation ... all at a minimum. If anyone is actually harmed, your signage offers you no shield from criminal or tort liability, and you will be lucky to live through the experience once they get their hands on you. Police tend to not like being the targets of intentional maiming, dismemberment or death. You have to understand that, according to this hypothetical, you are intentionally trying to harm law enforcement, or destroy evidence of your dangerous criminal activity. These are not invaders, or intruders according to the law; they are the people whose job it is to enforce the laws, collect the evidence (if you weren't getting arrested pursuant to the fruits of the warrant, you certainly would be at that point). The signs themselves would make excellent exhibits in the coming case of State v. you. BTW: The only reason they have left John Joe Gray alone is that he knows the Henderson County Sheriff Ronny Brownlow, who has been told that the ATF, FBI, and State SWAT, would all be happy to enter and get or kill Mr. Gray if need be. Since the Sheriff never filed any federal charges, and has determined that he doesn't want to breach (and it's in his jurisdiction to determine this), the Sheriff, aware that Gray's entire family is holed up in the "compound", decided it's not worth going in. It's as well known as it is anomalous. When the police want in, and have the right to get in, they will get in. That Sheriff just decided it's not worthwhile.
First, no, given the wording of the question: &quot;by demanding identity first&quot;. US courts have never held that citizens must immediately comply with non-emergency orders free of back-talk. Let's assume that the refusal is conditional: &quot;I won't comply until you show me your ID&quot;. In most (?) jurisdictions, there is no obligation imposed on police to show ID, though I am excluding home searches. There is a policy requirement in Seattle (§7) that Employees may use a Department-issued business card that contains their name and serial number to satisfy the request for the information. Employees will also show their department identification card and badge (sworn) when specifically requested to do so. Exception: Employees are not required to immediately identify themselves if: An investigation is jeopardized A police function is hindered There is a safety consideration Massachusetts has a law saying that &quot;Such identification card shall be carried on the officer's person and shall be exhibited upon lawful request for purposes of identification&quot;. In the domain of search and seizure law, the court reasoned in Doornbos v. Chicago, regarding a seizure by plainclothes police that Absent reasonable grounds to think that identification would present an unusual danger, it is generally not a reasonable tactic for plainclothes officers to fail to identify themselves when conducting a stop. The tactic provokes panic and hostility from confused civilians who have no way of knowing that the stranger who seeks to detain them is an officer... it is usually unreasonable for a plainclothes officer to fail to identify himself when conducting a stop or frisk As you can see, this identification requirement is tied to constitutional search and seizure limits for which there is voluminous case law regarding what is &quot;reasonable&quot;. The scenario that you propose is fairly far from the kind of case identified in Doornbos: is the order from a uniformed officer in a police vehicle? That seems to be what you're describing. Now we must inquire as to the legality of the order. Picking on Washington state law, RCW 46.61.015 requires that No person shall willfully fail or refuse to comply with any lawful order or direction of any duly authorized flagger or any police officer or firefighter invested by law with authority to direct, control, or regulate traffic. RCW 46.61.021 requires a person driving to stop for a LEO, and to identify himself: failure to comply is a misdemeanor. There is no statutory provision that a person can refuse to obey these (or similar sections in the motor vehicle title) until the officer provides ID. A police officer (in Washington: and I suspect any other state) does not have unrestricted authority to give people orders, there are specific statutory circumstances giving police the power to order people to do things. Obstructing a police officer is a crime, but obstructing an officer is where one &quot;willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties&quot;, and not &quot;doesn't cooperate&quot;. There is a provision, RCW 9a.76.030 where A person is guilty of refusing to summon aid for a peace officer if, upon request by a person he or she knows to be a peace officer, he or she unreasonably refuses or fails to summon aid for such peace officer and the &quot;knows to be a peace officer&quot; clause implies either that the officer is uniformed, or has provided identification. Finally, we have &quot;failure to disperse&quot; when a person congregates with a group of three or more other persons and there are acts of conduct within that group which create a substantial risk of causing injury to any person, or substantial harm to property; and (b) He or she refuses or fails to disperse when ordered to do so by a peace officer or other public servant engaged in enforcing or executing the law. These laws are attuned to emergency needs, thus outside the penumbra of your scenario. In short, the primary question must be, when can police lawfully give you an order that you must obey, which narrows the matter down to traffic-related matters. The seizure must be reasonable: it is reasonable to require a person to stop for a uniformed officer. Reasonability does not entail that all officers must produce ID when effecting a seizure, but this may be the case with plain-clothes officers. Even when in Seattle with a departmental policy requiring officers to identify themselves, an officer's failure to identify does not render the seizure illegal.
You give no jurisdiction but in general: First, police have no obligation to be honest. So, yes they can collect this without consent by e.g. taking hair from your hairbrush (with a warrant) or giving you a glass of water while interviewing you and getting it from your fingerprint oils (which may not actually be technically possible but never mind that). No, they can't take it by "force" by sticking a swab in your mouth. Yes, it will almost certainly go into a database. Of course, there are some jurisdictions where police are entitled to decide you are guilty based on the fact that you didn't pay them a bribe.
Law enforcement officers can obtain information with a search warrant, which is a document issued by a judge or magistrate that authorizes them to search for specific information or evidence based on "probable cause" to believe that it will inform the investigation or prosecution of a crime. A court can also issue a subpoena at the request of a party to a proceeding before it. Since in most cases only the state can bring criminal charges before a court, an individual would have to bring a civil complaint before a court in order to even request a subpoena related to his complaint. Also, it is up to the court to enforce its subpoenas: It's not like a warrant where you can then pursue the items subpoenaed through force. If the subject of a subpoena doesn't respond you have to ask the court to compel the party, which means you have to bring your complaint before a court that has jurisdiction over the party you wish to subpoena. This can be difficult when it involves a third party – especially a third party that would rather ignore or object to the subpoena than hand over the information. I.e., if you can't convince law enforcement to investigate the crime, and you can't convince the company in possession of the data that it's in its interest to help you, then you would most likely be facing a steep legal bill to get an attorney to successfully obtain the information through civil process.