Last night I spoke on behalf of ACLU at an event sponsored by the Libertarian Longhorns, the Big L Libertarian group at UT-Austin, who held a refreshingly non-election-related evening dedicated to informing students what to do if you're stopped by the police.
They showed a film by a group called Flex Your Rights, "Busted!: The Citizens Guide to Surviving Police Encounters," which is narrated by famed former ACLU President Ira Glasser. If you haven't seen it, let me suggest you purchase a copy online, and get a few more as gifts for every young person you know, or at least the ones you wouldn't want to see in jail. Everybody makes mistakes, but knowing what's in that video easily could make the difference between whether your child, niece, nephew or loved one's mistake lands them in jail or not.
Anyway, the third segment of the show dealt with what to do if police come to your home. In the what-not-to-do segment, officers bullied a 20-year old girl amidst a house full of nervous partygoers into admitting she had pot and taking them to it in her bedroom. As they cuffed her, they announced she was under arrest for felony "distribtion" because it was being smoked by others at the party.
"Distribution"! That's the same word the assistant district attorney used in the Palestine case72 black folks, almost all living in the Palestine city limits, were arrested in a Tulia-style mass-bust by a drug task force)
What do you think of when you hear "drug distribution"? Hard to avoid the obvious implication the person is a drug dealer. But prosecutors these days consider "distribution" just passing the joint, or in the Palestine case, the crack pipe. That overinflates the charges and lets the drug task force masquerade 72 people as dealers, an impossibly high number, as though they'd taken down Al Capone's liquor empire in a town of 17,000.
I should add that another thing became clear in the Q&A with students after the video. Police have much more authority over travelers at a traffic stop in Texas than in most states, or in the typical states for which the video is aimed. In Texas, the US Supreme Court upheld our law in Atwater v. City of Lago Vista allowing arrests for "Class C" misdemeanors, which are misdemeanors for which the only punishment is a fine, not incarceration.
Months after the Supreme Court ruled such arrests were legal, the Texas Legislature passed a law banning them again, but Texas Governor Rick Perry vetoed the bill, and has pledged to veto it again in the future as a sop to the state's largest police union.
After (where Atwater, and thanks to Governor Perry, if a driver says "no" to a request for a so-called "consent search," the traffic offense that was the pretext for pulling the driver over can magically become an offense that necessitates the driver's arrest, after which they will be required by law to search the car as part of an "inventory search." After this scenario is explained to a driver, who would rationally refuse a search?
I told the kids that they should. Legally, yeah, a Texas cop can just haul your ass to jail. Pragmatically, it's a different story. Most county jails are full to the brim, and nobody can afford to be processing and incarcerating traffic offenders. I argued that, while they cultivate a Wyatt Earp image, police officers are better viewed as comparable to middle management bureaucrats in the Social Security system. For tough guys, they're risk averse. Their actions are circumscribed by a byzantine set of rules hardly anybody else undertands, and they get in trouble when they cross the line.
Certainly there are bad cops, sadistic cops, racist cops, but if you're lucky enough to get the typical officer rather than the creepy, criminal outlier, most aren't willing to perjure themselves just for the chance to bust you with a joint. In Texas these days, most but not all police cars performing traffic enforcement have cameras in the cars, many with audio, and officers know that theoretically every action could be second guessed later, even if in practice it doesn't happen often. That makes the average officer more likely to follow the rules and conventions If you assert your rights and don't consent, arresting you just to search the car would still be a rarity, even after Atwater.
Politely but firmly decline every search request, even a pat down, and ask near-constantly whether you're free to go. The officer understands the code words, too, and unless he's willing to violate the consent pretext in a way that could come out unfavorably later, he'll likely respect them.
It's not great advice, but the only other choice is to consent, which definitely gets you searched 100% of the time. Hopefully I told them the right thing. (ACLU-national's otherwise excellent wallet-sized "bust card," entitled "What to do if you are stopped by the police," doesn't address the issue.) It's a hard question; I'm not a lawyer and it's the best I've got.
Perhaps Glasser, et. al can address Atwater in Busted II, The Sequel.
(Additional note: Since I was representing ACLU of TX at the event, my boss Will Harrell would want me to reiterate that I'm not an attorney, and nothing here is intended as legal advice. SH)
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