To Consent or Not Consent . . . That is the Question by Blue LLP


Posted on 12 Jan 2012


To Consent or Not Consent . . . That is the Question

In true hip hop form, Jay Z's 2004 hit, “99 Problems,” chronicles the famed rapper's refusal to give his consent during a roadside detention. Although Jay Z's account is entertaining, the story is one with which far too many motorists and criminal defense attorneys are familiar, particularly in the Eastern District of North Carolina.

Nah, I ain't pass the bar, but I know a little bit
Enough that you won't illegally search my s***
 
In true hip hop form, Jay Z's 2004 hit “99 Problems” chronicles the famed rapper's refusal to give his consent to a warrantless search during a roadside traffic stop. Although Jay Z's account is entertaining, the story is one with which far too many motorists and criminal defense attorneys are familiar, particularly in the Eastern District of North Carolina.
 
The story goes like this: a police officer pulls the rapper over for speeding (although we haven't met any clients who have been pulled over for going 55 in a 54, we appreciate the poetic license); the rapper claims that he's being harassed because he is young and black; the officer suggests that Jay Z fits the generic profile for someone who carries weapons, and asks for consent to search the car; Jay Z indignantly refuses and tells the cop that he'll need a warrant to search his locked glove compartment and trunk; the officer responds by telling him the drug-sniffing dogs are on the way.
 
The 4th Amendment of the US Constitution protects against “unreasonable searches and seizures.” In the context of a traffic stop, however, an officer may stop a driver's car if he has reasonable suspicion that the driver has committed a crime or infraction. This remains so, even where the officer uses the infraction as a pretext for the stop with the hope of obtaining evidence of other criminal activity. Already, it appears that the officer's stop of our famed lyricist is pretextual (55 in a 54? Come on!).
 
Next, we have the officer's request to search the car. The U.S. Supreme Court has held that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the officer possesses reasonable suspicion that the suspect is dangerous and the suspect may gain immediate control of weapons. In determining whether such reasonable suspicion exists, courts may consider furtive movements by a car's occupants, their lack of compliance with an officer's instructions, belligerence, and obvious and visible indications that a weapon may be in the car. No such evidence exists in “99 Problems.” Jay Z is right to say no and demand a warrant.
 
So we wait for the dogs. Thankfully, the facts we have to work with end here, because the North Carolina and federal courts that have addressed the issue do not provide a clear cut answer to how canine investigations must be conducted. To be clear, the Supreme Court has held that police may use a dog to sniff a car during any traffic stop because having a dog sniff a car is not a search. Police cannot, however, unreasonably prolong a routine traffic stop to investigate crimes that are not related to the stop itself. State and federal courts are all over the place in determining what amount of time is “reasonable.” In fact, some courts have permitted roadside detentions that last as long as twenty five minutes under the circumstances.
 
In the song, Jay Z doesn't tell us what what, if anything, he had in the car. But, we have since learned. The rapper was wise to refuse consent, as are all potential defendants, and require law enforcement to follow the rules set forth in the Constitution as interpreted by the courts. So, the question remains -- to consent or not consent. It's quite simple. Voluntary consent gives police all the evidence they need to secure a conviction.