Apr 08, 2017 Criminal defense- The danger of following a police order to hand over contraband
What should a person do when a police officer orders the suspect to hand the cop an item (other than ordering a driver to hand over one’s driver’s license and registration) or to empty one’s pockets? If complied with, that order amounts to a search under the Fourth Amendment. United States v. Pope, 686 F.3d 1078 (9th Cir. 2012)., No person inside the United States is obligated to comply with a warrantless police order to search, nor to assist with the execution of a search warrant.
If the suspect does indeed comply with a police order to hand over an item(s) or to empty one’s pockets, will the police officer later claim that the cop asked — rather than ordered — the suspect to hand over the item or empty the suspect’s pockets? So long as the suspect refuses the police officer’s order, then the officer is left with the choice of letting the matter go or conducting a search himself or herself, thus substantially reducing the risk that the police officer will claim that the suspect consensually handed over any items or consensually emptied his or her pockets.
What if a police officer specifically orders a suspect to hand over such contraband as unlawful drugs or a weapon? If the suspect complies by obtaining the contraband from a concealed location, the suspect has thereby revealed that the suspect knows of the presence of that contraband. If the police officer subsequently claims that the officer asked rather than ordered the suspect to hand over specified contraband, the real possibility exists that the trial judge will refuse to suppress the evidence revealed through any compliance with such a “request”. If the complying action comes into evidence at trial, that helps the prosecutor on the road to meeting the elements of criminal possession of contraband, which is knowledge, dominion and control over that contraband.