By Aaron Ladage
Mark Anklam is not a criminal. Or at least he never felt like one, until he pulled his truck into a weigh station on Interstate 39 near Coloma, WI.
After passing the scale with no problems, Anklam was pulled over for what he thought was a standard DOT inspection. The DOT officer climbed onto the driver's-side step and asked him to open the door while they spoke. Having nothing to hide, he complied.
But when the officer glanced around the inside of Anklam's cab, he caught a glimpse of a knife in a plastic sheath lying on the floor near the sleeper. Anklam was asked to step out of his truck. The officer entered, examined the knife's four-inch blade and told the trucker that it was a concealed weapon - despite the fact that it was located next to a pair of tongs, a spatula, some salt and pepper, and a shaker of seasoning salt.
"My guys all have microwaves and refrigerators in their vehicles," said Jeff Hill, Anklam's boss and the owner of the truck Anklam was driving at the time. "We've also got some little one-burner gas stoves in there, so we do a tremendous amount of cooking."
According to Hill, the officer threatened to put Anklam out of service and mentioned arresting him. He eventually allowed Anklam to lock the knife in a side box on his trailer - but not before warning him to "make the knife disappear" in the near future.
Hill, an OOIDA member from Owen, WI, said he wasn't surprised by the officer's attitude - he's seen it before, when he was behind the wheel of a truck himself.
"I had an officer ask me one time, 'Gosh, I've never seen the inside of (a truck) before. Can I take a look inside your truck?' " Hill said.
According to Hill, that was all the officer thought he needed for consent to search.
"I kind of knew what he was up to, but hey, I've got nothing to hide," Hill said.
Erwin Page, another OOIDA member from Owen, WI, said he's also seen some of the "sneakier" methods used to obtain consent for a search. While traveling between Phoenix and Yuma, AZ, he was pulled over by a DOT officer who asked to see his fuel receipts and paperwork. Page told the officer he had mailed the paperwork in earlier that day - which he thought he had.
"He said, 'So if I sat in your truck and looked around, I wouldn't find nothing?' and I said 'No,' " Page said.
According to Page, the officer's question, regardless of how misleading, was the only justification the officer had for searching his truck.
During the search, the officer opened Page's clipboard, which was stuck between the seats, and found a damning oil change receipt from Iowa that proved Page was not where his logbook said he was the day before.
Although Page, a self-described "long-haired rebel," admits to fudging, what most concerned him about the incident was the way in which the officer asked - or, perhaps, didn't ask - to conduct the search.
"Come to think of it, he never asked me if he could actually sit in the truck," Page said.
But few truckers have struggled with search and seizure laws like one OOIDA member, a 23-year veteran trucker who asked to remain anonymous. During his time behind the wheel, this driver has been subjected to eight complete searches of his truck, and estimates an average of five to 10 DOT Level I, II and III inspections each year, despite the fact that he said he purchases a new truck every three to four years and keeps it in great mechanical and cosmetic shape.
Why the intense scrutiny? The driver said he believes it's because he's Middle Eastern, and holds dual citizenship between the United States and Iran, his home country, which he left in the mid-1970s. Since the September 11 terrorist attacks, he said, the number of times he's been searched has skyrocketed.
The driver said he's seen and heard practically every excuse for a search or inspection, ranging from "checking for an exhaust leak" when the engine wasn't running, to supposed "mandatory cargo checks" in areas where other drivers weren't being stopped, to being put out of service for eight hours for an alleged hours-of-service violation when he still had several legal hours left behind the wheel.
But regardless of the situation, the trucker said he's learned that putting up a fight usually gets him nowhere.
"I've learned not to say anything," he said. "I just tell them to do whatever they have to do so I can go. That way, they don't put me out of service or give me a ticket."
Although each trucker's story is different, they all share one common trait - each of them had to decide whether to allow a search of their truck while out on the road.
Whether you've been asked to consent to a search multiple times or have never had such an experience, it's important for every trucker to understand his or her rights when it comes to searches.
It is equally important to use common sense when an officer asks that all-important question.
The law itself
Remembering the ins and outs of search and seizure law may seem tedious, but there's one thing to keep in mind - almost all of it can be boiled down into a few basic guidelines.
The founding principle of search and seizure law is the Fourth Amendment to the Constitution: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Think of the Fourth Amendment as the two sides of a coin.
On the one side, the amendment protects against unreasonable searches wherever there's an expectation of privacy - and in almost all situations, the inside of your truck counts. The flip side of that coin, however, is that if officers have probable cause, they can get a warrant, or in some very specific situations, conduct a search without a warrant, regardless of whether you give your consent (see related story below).
If you're pulled over and an officer asks to search your truck, you can say yes or no, but those aren't your only choices. Remember, your response - or lack of response - will determine how the officer is allowed to legally proceed.
Jeff McConnell, an attorney and co-author of Land Line's "Road Law" column, said that in many jurisdictions, when an officer asks to search and you say nothing, it's the same as giving your consent.
If you decide you don't want your truck searched, saying no is one of your only lines of defense, said Brett Shirk, executive director for the American Civil Liberties Union of Kansas and Western Missouri. According to Shirk, the area inside your truck is considered private property from a search - not necessarily an inspection - and unless the officer has probable cause or a warrant, a search cannot be conducted unless you give permission.
"What it used to be was, anyone - not just truckers, but any motorist - could completely refuse to consent to a search. Basically, they could say, 'You want to search my car? Fine. Go get a warrant,' " Shirk said.
"Nowadays, I believe they can still refuse, but that doesn't necessarily mean ... that (the search) won't happen."
In a post-September 11 world, Shirk said, the boundaries of search and seizure have been pushed to the edge of constitutional guidelines, which, he said, is a reason more people need to exercise their right to refuse warrantless, causeless searches.
"It used to be that, say a police officer would pull you over and look in your vehicle . and say, for instance, they saw a baggie of marijuana. That would be probable cause to search the car," Shirk said. "However, if there was no reason to search, they couldn't just tear the car apart and throw you in jail for no reason."
McConnell said that truckers are still constitutionally protected from the illegal search and seizure Shirk mentioned. However, McConnell said when an officer asks to conduct a legal search, it's important for the driver to remember that search and seizure law will always be filled with gray areas, and that the Fourth Amendment debate isn't meant to be fought entirely on the side of the highway.
"I think you could say no, and maybe they won't do the search - but have some time to kill when you say no, because chances are you're going to be down," McConnell said.
Jamin Raskin, a law professor at American University and former assistant attorney general for the state of Massachusetts, said refusal to consent isn't enough for the officer to claim probable cause.
"The first thing we have to understand is that refusal to consent to a search does not constitute probable cause to search," Raskin said. "If that were the case, the police could always ask for the right to search, and either be granted it, or use a failure to give it as a reason to search."
When it comes to consenting to or denying a search, Raskin said there are both intellectual and practical approaches.
"At least as a matter of constitutional principle, people do have an authentic right to say no," Raskin said. "That's what it means to be an American - you have a right of privacy in your personal things. One would hope, especially judges who swear their allegiance to an original interpretation of the Constitution, would see that the Fourth Amendment means what it says.
"On the other hand, most truckers don't need to be told that there's a difference between the law on the books and the law as it's practiced on the streets and the highways. There is a strong argument, also, for consenting to searches, even if you have somewhere to go and you have nothing to hide."
Belinda Harrison, corporate counsel for OOIDA, said another option is to ask officers what their reasoning is behind a search.
"Ask the cop, 'Can you articulate why you want to search my truck?' " she said. "Because if they can't articulate it to a judge, they're not going to get the warrant."
Most importantly, Raskin said, it's important to make your decision on a case-by-case basis.
"I assume every trucker views each encounter like this in a specific context," Raskin said.
"You have to figure into your own personal calculations how much of a rush you're in, whether there are things in the truck you don't want people to see - even if they are perfectly lawful - what the attitude of the officer is who is requesting the search, and what the circumstances are that suggest a search would be helpful to public safety."
One option McConnell said many people don't realize they have is that they can specify the search area. If you're fine with an officer looking through your cab but don't want him or her in your sleeper, you can say that - but don't be surprised if the officer puts you out of service while he gets a warrant.
"They certainly can specify a search area, but I'm not certain it's going to do that much good," said McConnell.
That's a sentiment with which Raskin agreed.
"Legally, one has the right to consent or not consent, so presumably, you can consent to a search of just this area or that," Raskin said. "Now, we can wonder whether that would trigger more suspicion on the part of the inspecting official."
If you're a team driver or travel with your spouse, make sure you and your partner have talked about whether you'll agree to a search. Raskin said that even if the other person in your cab has no ownership in the truck, his or her consent could still be enough for a search, based on precedent set in the U.S. Supreme Court case Illinois vs. Rodriguez in 1990.
"The Supreme Court said that apparent ownership is enough to justify a consensual search," Raskin said. "So long as the police believe that the person had authority, and that belief is reasonable, then the search will be OK."
Mind your manners
Regardless of your decision, many experts agree that, as is true in everyday life, politeness goes a long way. Although you're innocent until proven guilty, McConnell said copping an attitude could be enough to give a judge the probable cause he or she needs to issue a search warrant.
"Smother these people with kindness. It really upsets them when you do that," McConnell said.
"You may be just steaming, but you need to get in the mindset that we're all living in a different world now - this is not the world it was 10 years ago. It's not about you as an owner-operator, it's about a larger societal and global problem."
OOIDA's Harrison agreed.
"You certainly don't have to be nasty, rude or belligerent," Harrison said.
If you feel you've got nothing to hide, McConnell suggested consenting to a search as a way of demonstrating your innocence to the officer.
"Unless I'm doing something illegal, I probably would give consent to search, and I probably would offer to help," he said. "This offer to a public official probably would go a long way to get you out of there, rather than being combative."
However, not all law enforcement officials will equate consent with innocence.
According to a training guide on the FBI's Web site, officers are trained to recognize when someone is trying to call their bluff.
"Consent can be an effective weapon in an investigator's arsenal," the manual said. "When asked for permission to search, individuals with plenty to hide often defy common sense and waive their constitutional right to privacy."
The most important thing, McConnell said, is to not give the officer any reason to suspect you of wrongdoing, because unfavorable comments on a police report will make it that much harder for your legal counsel to win in the courtroom.
"As your lawyer, I can normally take the side of the police officer out of the equation - if you haven't wrecked it for me," he said. "Don't have notes on the back of a violation or a police report that you were uncooperative or unprofessional."
"The grievance form is something people may not understand they have a right to do," McConnell said.
"Let me tell you - it does a lot of good. What the officer's attempting to do is put a blemish on your employment history as a driver, which is your motor vehicle record. That's your electronic resume to the industry. What a grievance does to an officer is put a blemish on their employment history. So every time they're up for a pay raise or a promotion, (their employers) review that."
The bottom line
When it comes to search and seizure, there are two very different viewpoints - the by-the-books approach that follows the letter of the law exactly, and the practical approach that takes each individual situation into consideration.
Remember - when you're pulled over on the side of the road, it'll be up to you to respond to that officer's all-important question. How will you answer?
Jeff McConnell and Jim Mennella, attorneys and Land Line "Road Law" columnists
Brett Shirk, executive director of the American Civil Liberties Union of Kansas and Western Missouri
Belinda Harrison, corporate counsel for OOIDA
Jamin Raskin, professor of law at American University and former assistant attorney general of Massachusetts
Gary Stone, attorney for Stone Law Office, Kansas City, KS
Sgt. Chip Drenon, Missouri Highway Patrol
Joe Rajkovacz, OOIDA board member and former law enforcement officer
Tim Swartz, Rob Fichtner and Byron Barklage, commercial vehicle enforcement officers for the Missouri Highway Patrol
No warrant? No problem
There are some specific situations in which an officer usually does not need a warrant to conduct a search. Those situations can include:
• Consent is given – If you, your team-driving partner, your in-cab spouse or your company – if they own your truck – give permission, your protection from a search is basically gone. In almost all states, consent only needs to be given orally. Lawmakers in both Texas and New Jersey have lobbied unsuccessfully to require written consent prior to a search.
• Plain view – If illegal items such as drugs, open alcohol containers in most states, or weapons are clearly visible, the officer has the right to conduct a warrantless search.
• Incident to lawful arrest – If you've already been placed under arrest for a separate crime, the officer usually has the right to do an inventory search of the vehicle. However, simple citations such as speeding tickets are not considered arrestable offenses.
• Motor vehicles – Because they can be driven away from the scene, police will evaluate a situation involving a motor vehicle differently than one with a stationary object. However, police must still have probable cause before they can conduct a search.
• Stop and frisk – The officer is allowed to pat you down and search for weapons or contraband if he or she sees you as a possible threat.
• Hot pursuit – If you try to run, the jig is up – an officer can perform a search whenever there's no time to get a warrant, or when there's a chance that evidence could be destroyed.