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Asserting Your Rights Doesn't Mean You're Getting Away With Something

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Last week I posted Don't Consent to Police Searches or Answer Incriminating Questions in response to this story in which three men were arrested for marijuana after mindlessly consenting to a police search. A commenter responded with this (emphasis in original):

While I respect that you disagree with me, it's my personal opinion that headlines that encourage the skirting of laws are not going to be useful in influencing the citizens and legislators we need to help us change the laws.

I agree that teaching people their rights isn’t necessarily a direct path to drug policy reform, but I want to address the idea that my headline "encourages[s] the skirting of laws," which I think misses the point. In my work with Flex Your Rights, I’ve frequently encountered a false distinction in which asserting constitutional rights is considered honorable when one has nothing to hide, but is somehow perceived as disingenuous when the assertion of those rights prevents the discovery of criminal evidence. At worst, this argument takes the form of claiming that it’s an abuse of the constitution to refuse a search when one possesses marijuana, for example (that’s not what the commenter above is saying, but it’s where that line of thinking often leads).

All of this is premised on the assumption that police are legally entitled to discover contraband and that you’re "getting away" with a crime if police procedures don’t result in your arrest. Technically, however, there is no crime until police obtain probable cause for an arrest, thus any citizen who effectively asserts 4th and 5th Amendment rights is not getting away with anything. They are legally innocent, because evidence of guilt never emerged.

Thus, the whole point of understanding and asserting basic constitutional rights when confronted by police is that you are always innocent until proven guilty under the law. Asserting your rights can never be equated to "skirting the law," because these rights are the law.

As for the larger question of whether encouraging citizens to assert their rights is a bad message for reformers, I would insist that we have nothing to gain by remaining silent on this issue as our prisons are filled with naïve drug offenders who waived their rights on the side of the road. Flex Your Rights was formed to end that silence and we’ve drawn remarkably little public criticism for these efforts, probably because our opposition recognizes that criticizing know-your-rights education comes perilously close to criticizing the constitution itself.
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Great post Scott. I

Great post Scott.

I especially liked the insight as to why Flex Your Rights draws little criticism whereas some "how to break the law and get away with it" books and such draw much criticism and ridicule.

Are there any plans for a follow up DVD from Flex Your Rights?

Dan Linn
Executive Director Illinois NORML


Thanks for asking, Dan.

The next Flex DVD should be out by the end of '09 and it will be fun for the whole family.

Good point

Only 3% of marijuana users (perhaps fewer if you take in account repeat offenders) come in contact with the criminal justice system each year. Not only does the costly criminal justice approach seduce people into giving up their rights and foster a lack of respect for police, it's a complete failure on the public health front.


Thanks, Scott, for clarifying. After viewing the headline again I agree it didn't in any way encourage breaking any laws. My apologies.

I've watched the Flex your Rights videos before and I agree that they're a great resource. Just a couple weeks ago I was pulled over for a broken tail light, and I was more keenly aware of the officer's actions. I was alone, yet he walked to the passenger side, forcing me to open the passenger door to speak to him since I couldn't immediately roll the window down. Was opening the door a consent to search the immediate area? I was on my way to visit my mother-in-law in the hospital and my wife had told me to bring sugar, so in the passenger seat I had nothing but a ziplock of white powder. The officer didn't mention it, but I found that funny after just having read about drug policy for hours. :)


Yeah, I figured you'd agree if I explained it better. I just wanted to flesh it out more because it's an idea I sometimes hear from folks who are decidedly less sympathetic to our cause than yourself. Consider the above a response to them.

As for the sugar, what the hell!? I can't believe you didn't get called out on that. Just goes to show that your demeanor matters more than anything else. BTW, opening the door isn't technically consent, but it brings you a little closer to where you don't wanna be, legally speaking. Your expectation of privacy is reduced. But if they tell you to step out of the vehicle, do it.

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