Very often, on social networking sites, we hear the pieces of contradictory advice "don't talk to the police", "be polite and considerate to the police", and "assert your rights". These are pair-wise contradictory:
1. Don't talk to the police: You are being impolite, and you will be unable to assert your rights.
2. Be polite: Obviously violates "don't talk..." but also if you say, even politely, that you refuse certain police requests which you have a right to, then "they're just trying to help you out" and you're rude to refuse.
3. Assert your rights: "May I search your vehicle?" "No, officer." "Listen, man, there's no reason to be suspicious, I'm just trying to make sure there's no trouble. We're here to protect you. Why not just do it?" "I'm asserting my right to refuse a search, officer." That last line is perceived as rude by hundreds of people on social networking sites and is likely to be perceived as 'suspicious', 'rude', or 'aggressive' by the officers themselves.
The thing is, no matter what you do, if you catch a police officer on a bad day you will be in trouble. This is because you are always violating the law in America. For instance, I've noticed that driving the speed limit is something no one does and doing so in some places will lead to your being honked at at best and being cut off rudely to "teach you a lesson" at worst. This means the authorities can always catch you on something because it is socially unacceptable to follow the law.
Personally, I have the feeling that Aditya Mukherjee was just doing exactly what any of us would have done if we had opted out and been treated as disgracefully as that.
You would be surprised, but if you're going slower than 85% of the traffic on average, you are not violating the speed limit.
Even if the sign says 30 mph, if the 85th percentile is 36 mph, they cannot post a lower speed limit than 35 mph unless there are hidden hazards. Furthermore, if the survey has not been done in the last 7 years, even if they give you the ticket you can contest it because there can not be a speed limit on a road that hasn't been surveyed recently.
The latter is not asserting any rights since you cannot permit them with 'you may search me' while simultaneously claim you are not consenting. 'You may search me' is consent.
The former exchange may be followed by:
1. The officer reaching for your vehicle, you instinctively reacting to block him, and we have our aggression.
2. The officer asking why not, telling you he is now going to have to throw the book at you and every minor violation that everyone does will now come up (the easiest? Speeding violation for 5 over).
3. The officer coaxes you. You stand your ground in the same manner. You are being bullheaded. Try to convince your fellow man after an encounter like this. Almost certainly you'll be told that you should 'pick your battles'. This will certainly be followed by #2.
It is letting folks know you may be asserting it after the fact and you aren't waiving your right. What you are doing is establishing that the search isn't voluntary and that your cooperation is not consent.
I don't know how different circuits would look at it. My understanding is that this would not be effective in the 5th and 11th circuits since they hold that you consent to searches when you get in line and you can't revoke that consent. But other circuits haven't gone that far. That means that if they want to hold the search as lawful, they have to establish that it is a valid administrative search, and that consent is not required.
It would be clearer if "you may" was replaced by "I am aware you may" clarifying that this is not permission but a statement of possibilities.
1. Don't talk to the police: You are being impolite, and you will be unable to assert your rights.
2. Be polite: Obviously violates "don't talk..." but also if you say, even politely, that you refuse certain police requests which you have a right to, then "they're just trying to help you out" and you're rude to refuse.
3. Assert your rights: "May I search your vehicle?" "No, officer." "Listen, man, there's no reason to be suspicious, I'm just trying to make sure there's no trouble. We're here to protect you. Why not just do it?" "I'm asserting my right to refuse a search, officer." That last line is perceived as rude by hundreds of people on social networking sites and is likely to be perceived as 'suspicious', 'rude', or 'aggressive' by the officers themselves.
The thing is, no matter what you do, if you catch a police officer on a bad day you will be in trouble. This is because you are always violating the law in America. For instance, I've noticed that driving the speed limit is something no one does and doing so in some places will lead to your being honked at at best and being cut off rudely to "teach you a lesson" at worst. This means the authorities can always catch you on something because it is socially unacceptable to follow the law.
Personally, I have the feeling that Aditya Mukherjee was just doing exactly what any of us would have done if we had opted out and been treated as disgracefully as that.