Hot Cash And Cold Consent

The Drug Enforcement Administration has been so incredibly effective in eradicating demon narcotics that it no longer has any cartel kingpins that require its time and, instead, its agents can hang around bus stops.  Bet you didn’t realize that these guys deserved a statue.

Federal drug agents may be racially profiling and unjustly seizing cash from travelers in the nation’s airports, bus stations and train stations. A new report released by the Office of the Inspector General for the U.S. Department of Justice examined the Drug Enforcement Administration (DEA)’s controversial use of “cold consent.”

What makes this unusual, to the extent it is unusual, isn’t that it happens, but that Mike Horowitz, DoJ Inspector General, calls out the DEA for engaging in these “interdiction” approaches.

When it comes to exceptions to the Fourth Amendment, none is better than consent, which vitiates all protections that might otherwise be available to an individual to protect themselves from a search. 

In a cold consent encounter, a person is stopped if an agent thinks that person’s behavior fits a drug courier profile. Or an agent can stop a person cold “based on no particular behavior,” according to the Inspector General report. The agent then asks people they have stopped for consent to question them and sometimes to search their possessions as well. By gaining consent, law enforcement officers can bypass the need for a warrant.

Perhaps a better explanation of a “cold consent encounter” is that the agent has no justification for approaching a person and asking for consent, but between his right to conduct a putative Terry Stop and the target’s “submission to the shield,” the inclination to grant consent rather than object out of fear that refusal will either give the agent reason to believe that he must be up to something bad, or fabricate a reason to arrest or become violent to teach the target a lesson in respect, overwhelms resistance. The target consents because he feels he has no viable alternative to refuse.

So why pick out one person as a target as opposed to another?

But after reviewing the DEA’s policies, the Inspector General concluded, “cold consent encounters and searches can raise civil rights concerns.” In one incident, DEA agents cold-stopped an African-American woman at an airport and allegedly subjected her to “aggressive and humiliating questioning”; the woman was a Pentagon lawyer and travelling on government business.

Oops. Black female Pentagon lawyer travelling on government business?  What were the chances?

But the gimmick doesn’t stop with profiling and obtaining consent by creating fear that refusal will have dire consequences with the “what do you have to hide” schtick.

Disturbingly, the Inspector General found that DEA interdiction task force groups have been seizing cash from travelers and then urging them to sign forms disclaiming their own cash and “waiving their rights.” In one cold consent encounter, DEA agents stopped another African-American woman in part because she was “pacing nervously” before boarding her flight. After gaining her consent, the agents searched her luggage and found $8,000.

A drug dog then alerted to the cash, and the DEA seized it. However, the Inspector General report did not state if any drugs were actually found or if the woman was ever charged with or convicted of a crime in connection with the seizure. Not to mention that most U.S. currency in circulation has been exposed to drugs.

The deal is fairly straightforward, as the agents offer their target a choice, waive their rights or get arrested, go to jail, fight prosecution and perhaps lose. Or give up the money and go home for dinner.  Given the variables, people tend to go the route with the greater guarantee of a decent meal, even if the arrest course is likely a lie.  Remember, law enforcement officers are allowed to lie, as it’s an effective tool in fighting crime.

That the feds are now in the business of penny-ante forfeitures speaks volumes about both the lack of serious crime as well as the perverse incentives to allocate personnel to try to steal pennies from travelers.  Sure, it can be rationalized as part of a grand scheme to take the profit out of crime, one dollar at a time, but that’s mere tough on crime marketing nonsense. It was never the justification for the DEA existing, no less becoming embroiled in such low rent operations.

To Horowitz’s credit, it would have been remarkably easy to put these operations into the pile of things that don’t raise problems, as consent obtained by a wee bit of threat and duress hasn’t presented much of a problem for judges.  With rare exception, courts have long been inclined to adopt the fantasy that people who consent do so knowingly, intelligently and voluntarily, except when there is an actual gun pressed against their head.  The metaphorical gun just won’t do.

By characterizing the exception as “cold consent,” it highlights the impropriety of DEA agents approaching a person who would otherwise have no reason to expect to be in law enforcement crosshairs.  These are people on the “good guy curve,” unfamiliar with dealing with police and unaware of how to effectively do so while preserving their rights.

That people aware of this happening will have greater awareness of how to deal with it should it happen to them doesn’t help the unaware good guys. They have no reason to be interested in such matters as civil forfeiture until it touches their lives.  These are the perfect marks for the “cold consent” scam, with no recognition of what’s being asked of them and no understanding of how to effectively resist. They are rife with fear and the first to fall for the agents’ schtick.

That those of us who object to such improper law enforcement abuses decry such tactics is one thing, but to have the Inspector General join in attempting to stop this abuse is huge.  If nothing else, Mike Horowitz deserves props for doing his job, and doing it well, which may explain why the law enforcement agencies never invite him to their beer blasts.

18 thoughts on “Hot Cash And Cold Consent

  1. Bartleby the Scrivener

    So the proper response to them asking if I consent to be questioned is, “No, I do not, thank you.”

    A friend of mine (who had been in trouble and deserved it) once had this conversation with a cop.

    Cop: “Sir, do you mind if I search your vehicle?”
    Friend: “Yes, I do mind. You cannot search my car.”
    Cop: *perking up* “Oh really? Why not?”
    Friend: “Because I just got my Fourth Amendment rights back, and I don’t think I’m quite ready to give them up to someone like you!”

    I’m not sure if he was brave, stupid, or both.

    1. Marc R

      However, your friend’s PC narrative reads:

      Officer: may I search your bags
      Perp: yes but here’s some money I have that I can’t prove wasn’t illegally gotten
      Officer: are you sure, sir, you don’t want to consult counsel
      Perp: no I’m guilty and a past felon

    2. SHG Post author

      As Marc says, that “Because I just got my Fourth Amendment rights back” is like begging to get tossed. Better to leave it at “because I know my rights under the Fourth Amendment and I do not consent to a search.”

      1. Patrick Maupin

        So both “yes” and “no” are bad answers to the “May I search your _____?” question? What about something like “What??!? Why?” along with a my normal confused-looking scrunched-up visage?

        1. SHG Post author

          No one said “both yes and no are bad answers.” No is the answer, but police are trained to follow it up in order to persuade you to give consent by creating the concern that a refusal implies guilt. People need to be prepared for the question in order to avoid falling for the ploy.

          1. Patrick Maupin

            Yes, inartfully stated/asked on my part.

            Obviously, the world would be a better place if nobody paid off the kidnappers or consented to search, because then the kidnappings and unreasonable searches would mostly stop.

            But parents pay millions of dollars to retrieve their darlings, and people consent to search, often only because of prior examples of dead kids and beatdowns.

            So my question (which you may certainly find irrelevant, because it’s a psychological hostage negotiation question rather than a legal question) is not about whether declining is the correct thing to do, but rather about the best way to go about declining.

            For example, your statement ““because I know my rights under the Fourth Amendment” seems to me like exactly the thing that would be uttered by the hardened career criminal or the taunting nerd begging to get his face smashed in. As the archetypal taunting nerd, I would worry about how I came across when saying that…

            1. SHG Post author

              …seems to me

              Seriously, Patrick, who gives a fuck what it seems to you? Stop leaving comments that make everyone stupider. Do whatever the fuck you want. I’m not your lawyer and SJ doesn’t exist to give legal advice for the benefit of Patrick.

            2. Patrick Maupin

              Seems to me I need to drink coffee and think harder before commenting. I liked Aaron’s comment and your response to it.

        2. Aaron

          There are bad answers to the follow-up questions of “Why not? Why won’t you let me search?” In fact, I’d go so far as to say that any substantive answer is a bad one. Not only might you inadvertently give some justification for a search, but by answering the question you’re unwittingly accepting a faulty premise — that you need a good reason to exercise your rights.

          This is exactly the opposite of what the law says: if a government agent wants to interfere with the free exercise of your rights, he’s the one who needs a good reason (at minimum.) His question is invalid. But by asking the question and getting you to answer, he’s turned the entire conversational posture around.

          I prefer to respond with, “I don’t have to explain my reasons to you.” I’d quibble with Scott’s response only for starting with the word ‘because’, which indicates that he’s engaged, and invites further conversation. That’s a point of technique rather than substance, but both are important in such encounters.

          1. SHG Post author

            I have no issue with your response. There is no perfect answer, as any answer assumes (a) the cop isn’t a moron, (b) won’t lie about it later and (c) gives a damn. None can be assured.

            1. Bartleby the Scrivener

              I think I’ll run with, “I do not consent to a search of myself or my property” and if they ask any other questions I’ll ask to speak to my attorney.

              How did we ever go so wrong?

              To paraphrase a friend of mine, “The great fictional dystopias were meant to be cautionary tales, not suggestions.”

            2. SHG Post author

              I’ve trashed about 50 comments by visitors via Instapundit since yesterday, because they, like you, want to give their “thoughts” on what should be said to police upon a request for consent. Some were fine. Some were kinda insane. Few were offered by anyone who had any legal knowledge, and mostly reflected their “internet expertise” at kibbutzing about things they only know from a foggy distance, but which they believe themselves fully qualified to impart to others because . . . internet.

              Is there any reason, any at all, why you, similarly a non-lawyer, think your two cents ought to be published so that some other poor schmuck who might read it would say to himself, I think I’ll do what Bartleby the Scrivener said, because you know stuff? You can certainly do as you please should the situation ever arise, but do you think your thoughts are worthwhile for others? Any ideas about how best to perform brain surgery, as long as you’re opining about things you don’t actually know?

              If this was reddit, it would not only be fine, but expected. But this is a law blog. You know, law, as in lawyers and such. Not random unqualified opinions back by an excess of zeal and an absence of actual knowledge.

          2. dms

            NEVER NEVER get into that kind of conversation with an officer! Here is the template and it should be your ONLY template:

            COP: Is it okay of I search your baggage?
            YOU: I do not consent to a search of any of my property.
            C: Oh yeah? Why is that?
            Y: I do not consent to a search of my property.
            C: You hiding something here?
            Y: I do not consent to a search of any of my property.

            That is the ONLY answer you give from now until the eschaton. You do not have to submit to an interrogation and you do not have to explain at all why you do not consent to a search.

            (I have nine years law enforcement-agency experience, btw.)

            1. SHG Post author

              First, this is a law blog, so I’m very reluctant to post your comment since there’s no verification that you have any LEO experience. I don’t allow pseudonymous commenters to claim experience without proof. It’s not that I doubt you, but that on the internet, anybody can say they’re a cop.

              That said, I posted your comment because it’s sound. Of course, the best answer is to keep repeating that you do not consent. You’re quite right.

              The problem, which I assume you realize as an LEO, is that people can’t resist the need to respond as police persist. The compulsion to submit to the shield is very hard to overcome.

              It’s easy to tell them not to, but they can’t help themselves anymore than they can invoke the right to remain silent after being Mirandized. The discussion here seeks to help them out of the hole, even though, as you say, they should have the strength to resist ever getting into the hole. But then, people do. All the time.

  2. Andrew_M_Garland

    James Duane is a Professor at Regent Law School. He has a video on YouTube (google: James Duane) titled approximately “Never Talk to the Police”. He advises always denying a search, but to cooperate with police commands even if you think they are wrong

    Mr. Greenfield, if you know of this video, do you agree with his advice?

    1. SHG Post author

      I recall having seen the video at some point, but I haven’t watched it recently. Generally, I agree, but all videos are made for a mass audience and tend to dumb down advice to its lowest common denominator. I have never seen a video that is sufficiently nuanced that I would give unqualified agreement. Law just isn’t that simple. It should be, but it’s not.

  3. Diggs

    It would be impossible to know the myriad of laws that exist in any given jurisdiction. Cops and well-trained lawyers rarely, if ever, know all the laws that exist even within their own jurisdiction. If you understand that, then you are perfectly capable of being responsible for you own safety and freedom. Bomb-sniffing dogs have been known to alert on powdered laundry detergent. Drug-sniffing dogs as well as their handlers may be poorly trained, or alert on cash, luggage, etc that was recently handled by someone using drugs (do you know for sure whether the guy unloading your luggage off the plane didn’t just smoke a joint?). There’s no telling what kind of trouble you can innocently get yourself into if you consent to a search. It’s a crap shoot at best.

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