Consent to searches: Who wins &quot;my-word-against-yours?&quot; Hypothetical Officer testifies citizen consented to be searched. Citizen denies consenting to be searched. There is no other evidence (that weighs net in favor of either party). Question Whom does the judge believe? Clarifying Discussion from previous comments... Point The testimony of the officer and the citizen would be more complete than just the officer saying "The defendant consented to be searched" and the defendant saying "I did not consent to be searched". Each would give a narrative of the situation that could be cross-examined. This would give the judge more information on which to base a judgement of trustworthiness. Response Although everything you say is true, to put all that information into the question would miss the point. Which is: What is the standard of proof (for consent to searches)? And is their any "weight" advantage (in practice) for testimony from either side (all other factors being equal). For the purpose of this question, please assume all the other factors (the ones you mention and all the others) cancel out each other. Imagine both narratives agree except in one version the citizen gives consent. In the other he does not.
The Supreme Court has said that "when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given".1 This needs to be "clear and convincing" proof.2 The "clear and convincing" standard is higher than simply "more likely than not" or "preponderance of the evidence".3 It has been equated with "highly probable".4 In your hypothetical, the prosecution failed to prove that it was more likely than not that consent was freely and voluntarily given. They are far from meeting the "clear and convincing" standard that is required. The evidence resulting from the search would be excluded. I also recommend gracey209's answer, which explains why this hypothetical is not realistic, and describes many other factors that go into the determination of whether a search is reasonable -- the touchstone of the Fourth Amendment is reasonableness, not consent. 1. Bumper v. North Carolina 391 U.S. 543 (1968) 2. State v. Danby, 11 Ohio App. 3d 38 (1983): "Accordingly, a warrantless search based upon the consent of the defendant is valid if his consent is voluntarily given. [...] Furthermore, the degree of proof constitutionally required is proof by "clear and positive" evidence. [...] In construing the phrase "clear and positive" in terms of evidentiary proof, we observe that several courts have held that it is quantitatively equivalent to proof by clear and convincing evidence." 3. Calderon v. Thompson 523 U.S. 538 (1998) 4. Colorado v. New Mexico 467 U.S. 310 (1984): "Last Term, the Court made clear that Colorado's proof would be judged by a clear and convincing evidence standard. [... W]e thought a diversion of interstate water should be allowed only if Colorado could place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are highly probable."
It does matter if you invoke your right to silence. First, if you do, that affects what police can do (they have to stop interrogating you). Second, it plays a role in &quot;adoptive admissions&quot;. If the police are asking you questions (you are not under arrest) and they make some statement that implies that you committed a crime, your silence can be used against you: it can be taken to be a form of admitting that you committed the crime. The premise is that if they imply that you murdered X, such an accusation if false would be so outrageous to a reasonable, innocent person that they would protest, therefore your lack of protest (denial) is tantamount to a confession. However, you can protect yourself by preemptively invoking your right to silence. See Salinas v. Texas: a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it... the Fifth Amendment guarantees that no one may be“compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” Since any right can be waived, at any time, there is no magic expression that you can utter that nullifies a future waiver of a Constitutional right. The closest that you can come is asserting that you hereby exercise your right to an attorney and that you will not speak until you have consulted with your attorney (then you better shut up). Lawyering up only prevents them from further interrogating you. Don't hedge: say &quot;I am asserting my right to silence and refuse to speak without a lawyer&quot;. &quot;I think I should...&quot; is not a definitive assertion of your rights. If you are (briefly) stopped, police may ask if they can search you or your property. If they have a warrant or probable cause, there's really no point in saying anything. In the case that consent is required, you just have to remember to not consent, and it would not be a bad idea to explicitly deny consent. Each and every time they ask. The same with their statement &quot;It would really help us if you would come to the station to answer a few questions&quot;. If you are under arrest, then you have to go with them: ask &quot;Am I free to go?&quot;. You can say &quot;I do not consent to any search&quot;. Your proposed declaration of rights is pretty vague. Exactly what rights are you talking about? Your right to freedom of religion? Your right to bear arms? Your right to not have to quarter soldiers in your house? Your right to an education? Many detainee statements have been found by the courts to be ineffective because they were unclear. You could give it a shot and see if the Supreme Court accepts your &quot;universal assertion of rights&quot; as effectively invoking your specific 4th and 5th amendment rights. Unless you have something in mind (like, the 6th amendment), the most effective statement is a very specific one. Silence, lawyer, no search.
An appeal to ignorance asserts that a proposition is true because it has not yet been proven false. That is not in any way the situation here. The defendant knows if he/she has or has not so the only available answers under oath are "yes" or "no" - the jury knows this too so any other answer will be seen as disingenuous. However, this information (affirmative or negative) is off limits to the jury as it could prejudice their decision, hence the mistrial. A quick judge could instruct the defendant not to answer and instruct the jury to disregard the question but if a conviction results the defence team could use the fact that it was asked as grounds for appeal. A judge must decide if the interests of justice are better served by a retrial or a tainted conviction.
Breathalyzer tests are distinct from blood tests because the former does not "implicat[e] significant privacy concerns" (see Birchfeld v. ND). A cell phone is like a blood test, because it implicates significant privacy concerns, especially the level of electro-snooping that would be required to determine if someone had recently committed a phone-use offense. As the court held, Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. A breath test might (but also might not) also satisfy the exigent-circumstances exception (waiting some number of hours for a warrant can easily result in the destruction of evidence), but a cell phone case could not give rise to such an exception. It should perhaps be noted that the "implied consent" laws are misnamed, because consent is not the issue. The 4th Amendment ban is on unreasonable searches, not unconsented searches. If you actually consent, it is reasonable for the police to search. I am not aware of any ruling to the effect that "because the defendant consented, the search is valid". In the context of breathalyzer law and case-law, an essential component of what makes the search reasonable is that it is incident to an arrest. With or without consent, or an implied consent law, Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Extending "implied consent" to cause-unrelated searches of cars, homes, or body cavities might not pass strict scrutiny. The state has a legitimate interest in public safety which justifies some minimal intrusion, but adding a provision that "when you drive, you give implied consent to searches of everything" is not narrowly tailored. But since driving is a privilege and not a right, the state has much more leeway to give you an ultimatum: if you don't cooperate with the search, you can lose your license. On the other hand, SCOTUS has not actually approved of this slogan about driving being a privilege. Something noteworthy from Birchfield is that the court also disapproves of blood tests because a less invasive method of achieving the result is available, and they grant that "Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit". There being no less-invasive alternative means of realizing the legitimate state interest in stopping distracted driving, I actually expect that when this comes to pass and the matter ends up at SCOTUS, there will be another important change in search law (but "implied consent" will still be irrelevant).
In your example, there is nothing that indicates to me that there is a "particularized and objective basis for suspecting the particular person stopped of . . . criminal activity". If you have described the totalilty of the circumstances, the officer does not have the right to arrest or detain the individual. To your broader question about how specific descriptions must be in order to provide a basis for a stop, the assessment is based on the "totality of the circumstances". For example, an anonymous tip that "a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light [carrying cocaine]" was enough to warrant a stop. Alabama v. White, 496 U.S. 325 (1990)1 In contrast, the court "determined that no reasonable suspicion arose from a bare-bones tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun." Florida v. J. L., 529 U. S. 266 (2000) The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” Navarette v. California 572 U.S. ___ (2014) In any case, a crime must be part of the particularized suspicion. 1. This case focused on the indicia of reliability necessary for an anonymous tip to support a reasonable suspicion, but it is also an example of a degree of non-specificity in identification of a suspect.
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.
Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop &amp; account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop &amp; Search and Arrest covered by the OP.
An "inquisitorial" system is one where the Judge or Magistrate actively questions the accused and witnesses to attempt to determine the facts. The Judge may also determine, at least in part, what witnesses to call in what order. An "adversarial" system is one in which each side presents its case, and the judge acts as an umpire deciding on procedure, and possibly makes the final ruling (or directs a jury to do so) but is not actively involved in questioning witnesses or deciding what witnesses to call. I don't see anything which would prevent a common-law jurisdiction from establishing an "inquisitorial" system by statute except longstanding tradition, but as far as i know no such jurisdiction has ever had such a system in place for dealing with criminal matters. The informal procedures in some small claims courts do have judges more actively involved than in other courts. I think this is also true in some family courts as well. I think I have heard of some civil-law jurisdictions which use something like an adversary system, but i am not sure of that. Certainly a civil-law country could pass a law setting up such a system if it chose to.