Stopping a warrantless police search? In general, how much can a person do to stop a warrantless search beyond verbally refusing consent? Is there anything further that can be done to prevent the search in the first place or make legal action after the fact more likely to prevail? Most of the results I get to searches relate to what officers can legally do, but I'm more interested in the case where the search isn't legal (regardless of if the officer knows that). I kinda suspect the answer (excluding thing like taking recordings) is &quot;nothing at that time&quot; but that any officers involved who ignore that refusal will get in trouble. Would it be legal (ignoring the question of advisability) to passively obstruct such an illegal search, say by locking a door or standing in a doorway such that the police would have to physically touch/move you to continue?
Don't consent. Say so (ideally in a well documented way, like on video). Challenge the fruits of any unlawful search after the fact in a suppression hearing, or in a civil rights lawsuit. There is a decent chance that a court will find that the warrantless search is lawful – even if it isn't – but there isn't much that you can do about it that would be wise or legal. Also, recognize that in many circumstances, warrantless searches are legal.
In the circumstance you describe, you can refuse a breathalyzer test (&quot;opt to not take it&quot;), and doing so would not constitute probable cause for an arrest (the results of the test can be probable cause). That is when you are on the roadside. This is Washington's &quot;implied consent&quot; law. One of the first things that the law says is that the test is &quot;subject to the provisions of RCW 46.61.506&quot;, which includes the requirement that the test be performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. There are other requirements regarding 15 minute prior observation. The legally required test is done in the police station by a specially trained technician, on an approved machine (the portable machine is not approved). The implied consent law also says that this test is &quot;required&quot; if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor You are not required to take the Portable Breath Test, which is optional (when you have been stopped) – it's the post-arrest &quot;evidentiary&quot; test that is obligatory, using the approved procedure. Note that failing the optional test gives probable cause for an arrest, however there can be other grounds such as failing the line-walking test. If the officer just tells you that the roadside test is mandatory, that is a defense which can be used at trial ('cuz the optional test is not mandatory). Whether or not the portable test is admissible in court depends on the state: in Kentucky it is statutorily not admissible, likewise in Washington per court ruling. The other tests (often known as Standard Field Sobriety Test) are also optional, so ultimately it reduces to whether they already have probable cause, that is, if &quot;the totality of the facts and circumstances known to the officers at the time of arrest would warrant a reasonably cautious person to believe a crime has been committed&quot;. It is just not clear to me what actual circumstances distinguish mere reasonable suspicion (driving slow) from probable cause, but watery eyes, slurred speech and alcohol smell will make probable cause. I don't know if driving slow and having watery eyes is probable cause – I would think not. Dunno about &quot;smell of alcohol plus driving slow&quot;. In Birchfield v. North Dakota, 579 US ___ we find an example of a traffic stop with ample probable cause for an arrest (smell of alcohol, bloodshot watery eyes, driving into a ditch, failing the alphabet test and massively failing the voluntary breath test). The analogous North Dakota law is largely similar to Washington law, mandating only the &quot;approved&quot; more technical version of the test and not the roadside test. Defendant, in that case, refused the mandatory test. A crucial difference compared to Washington law is that while suspension of driving privileges follows from refusal under Washington law, refusal in North Dakota is itself a misdemeanor per N.D.C.C. § 39-08-01. The issue for SCOTUS is whether a law criminalizing refusal to submit to a breath test (but not a blood test) violates the 4th amendment: it does not.
Regardless of the context of the first solicitation, Officer Jones' second solicitation was made in willful refusal to accept Betty's unambiguous "no" for an answer; this is sexually coercive behavior, specifically postrefusal sexual persistence. If this question is assessed from the perspective of the "average" woman, then after her initial declination, extraction of a "yes" cannot be considered uncoerced. Here's a question: how many times does she have to say no before it starts to count? Before it counts against her finally being exhausted, harassed, or intimidated into capitulating? Because by that logic, he never has to stop; he can continue to harass her until he finally accomplishes his objective (grounds to arrest her) - in which case, why bother with the pretense? If it takes 200 "no's" to wear her down to "whatever", then the first 200 "no's" just didn't matter as much as the first "whatever", so why bother with the formality of pretending like the first mattered when it clearly does not? To demonstrate the significance of her initial "no, thanks" and his subsequent refusal to accept it from another perspective: if Betty and Jones were coworkers in the same office, if he continued to solicit her after being told no the first time, that would be the definition of sexual harassment on his part and it would not matter how genial or friendly or casual he thinks he's being; furthermore, if her workplace failed to intervene on her behalf, they would be engaging in sexually discriminatory behavior by creating a hostile work environment, regardless of how genial / friendly / casual, etc. It's hard to see how this could act as evidence of her having committed a crime in one context while being grounds for termination of his employment in another context. HTH.
Yes and no. Using deception to get someone to open the door so that you can execute a warrant is okay (United States v. Contreras-Ceballos, 999 F.2d 432). Leading a criminal to believe that you are a crime-customer (e.g. for purposes of a drug sale) and not a police officer is okay (Lewis v. United States, 385 U.S. 206), but must be limited to the purposes contemplated by the suspect and cannot turn into a general search. Lying about whether you have a warrant is not okay (Bumper v. North Carolina, 391 U.S. 543, Hadley v. Williams, 368 F.3d 747), nor is it okay to lie about the scope of a warrant (United States v. Dichiarinte, 445 F.2d 126). Misrepresenting the true purpose of entry, even when the person is identified as a government agent, negates consent (US v. Bosse, 898 F. 2d 113; United States v. Phillips, 497 F.2d 1131; United States v. Tweel, 550 F.2d 297). However, there is no requirement to be fully forthright (US v. Briley, 726 F.2d 1301) so you can gain entry saying that you "have a matter to discuss with X" even when the intent is to arrest X. In a case similar to what you describe, United States v. Wei Seng Phua, 100 F.Supp.3d 1040, FBI agents disrupted internet access and then posed as repairmen to gain access to the computer. Their efforts were wasted, as fruits of the poisonous tree.
An officer is allowed to pull you over for speeding and then decline to give you a ticket for speeding. So the lack of a ticket has nothing to do with it (unless you actually weren't speeding, not even 1 MPH over.) Simply having past felonies, however, is not a reason for an officer to be able to search the car. Without a warrant, he'd need probable cause, consent, or some other exception to the warrant requirement. It's impossible for me to say what happened here. Maybe your husband had an outstanding arrest warrant? Maybe the officer saw the gun from outside the car? Maybe one of you said "OK" when he asked to search the car? Or maybe the search was illegal after all?
united-states It is not required for a person to formally assert a fifth- or a first-amendment right when questioned by the police. One can simply be silent, refuse to answer any questions, without giving any reasons. But probably more effective and just as legal is to say &quot;I won't answer any questions until I have talked with a lawyer. I want a lawyer, now.&quot; That is perhaps less likely than using the words &quot;plead the fifth&quot; to be assumed to be a confession of guilt, although some people and some police may take almost anything as a confession of guilt. By the way some of the points you distilled from the video (which I have not watched yet) are correct, some are half-truths, and some are quite incorrect. For example: The 5th amendment was not designed as a shelter for the guilty (despite it often being used as such). It was designed to help prevent you from unknowingly incriminating yourself. As a matter of history, this is quite incorrect. It arose historically out of a reaction to government procedures deemed oppressive. See https://law.stackexchange.com/a/63690/17500 for more detail. But helping people avoid unintentionally incriminating themselves is one of its major current functions. You can't talk your way out of getting arrested. Sometimes you can, but it is never safe to count on it. You can't know in advance if it will work, and more often than not it doesn't. Everything you tell the police can be used against you but not to help you. Not quite. If your statement is recorded, as is likely nowadays, the whole statement must be given to your lawyer and entered into evidence if you are eventually charged. (See Brady vs Maryland) Things said in your own favor may be discounted as self-serving, but the judge and jury will still hear them. But they can be very risky.
Is asking police to justify their orders illegal? NO but the manner in which the &quot;asking&quot; is done may be.
Expunction may be possible for instance if you are acquitted, later proven innocent, pardoned, and various other things that fall short of being convicted and doing the time. The entire law is here (Texas code of criminal procedure 55.01). There is also the option of an order of non-disclosure, overviewed here. A requirement for such an order is that you were placed on and completed deferred adjudication community supervision, which from what I can tell is not what happened. "Background check removal" may range between simply taking your money and doing nothing, to doing what you could do yourself to get free of traces via radaris, intelius, spokeo, and so on to "request removal" from that web site. This will not make your record unavailable, because these websites don't have any special powers to reach into and manipulate state records.