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.