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Requiring Informed Consent Searches

The right to say “no” does not mean much if you don’t know you have that right in the first place.

We require hospitals to obtain “informed consent” from patients before they undertake intrusive medical procedures. We demand extensive disclosures from sellers to buyers in real estate transactions. We even make police deliver Miranda warnings to suspects who are arrested, on the premise that nobody can effectively waive the rights to remain silent or to consult counsel otherwise.

Yet police routinely demand that people submit to searches that they have a right to decline without advising them that they can just say no. A so-called “consent search” does not need any justification if the individual grants the police permission. Yet in many encounters, it is far from clear that the individual can deny the police request.

Police officers also make their search demands in racially disparate ways, as was abundantly clear throughout the era of New York City’s widespread stop-and-frisk policy. Often, such consent searches form the basis – justified or not – for criminal charges against minorities that whites, who are not often subject to such searches, seldom face.

A recent in-depth report in The New York Times highlighted these disparities as they relate to traffic stops. (1) In Greensboro, North Carolina, The Times found that not only were black drivers stopped disproportionately often, but they were much more likely to be subject to a search by the officer conducting the stop. The pattern was repeated across the other states that track comparable data. And it echoes in individual stories, such as John Felton’s stop in Dayton, Ohio earlier this year, that make their way into the national news cycle.

The problem of conscious or unconscious racial bias in policing is a complex and sensitive one, but the problem of making sure citizens know whether they must agree to be searched is much simpler to solve.

Currently, in most places, it is up to each individual to know and assert his or her rights. Organizations such as the American Civil Liberties Union make efforts to educate the public, but in the moment, even an informed driver may feel intimidated. Officers are not required to tell drivers or passengers that they have the right to refuse a search, and many officers do not bother. Fear of retribution is doubtless more acute for black drivers, considering the recent history of traffic stops that escalated disastrously in cases like those of Sandra Bland and Walter Scott.

The Times story, however, suggested that at least one city has identified an effective way to make sure consent searches are based on true consent. In Fayetteville, North Carolina, a couple of hours from Greensboro, the policy since 2012 has been that officers must get written consent before conducting consent searches. This policy arrived as part of an overhaul to the department’s practices, in response to heavy criticism related to traffic data highlighting the racial disparities in the police department’s use of consent searches. That criticism led to the former police chief’s departure, as well as to the new consent form policy.

Since Fayetteville instituted consent forms, the number of searches conducted has drastically declined – by more than half, according to the Times. This year, a White House task force on policing endorsed this requirement. Durham, North Carolina, has also instituted a policy of requiring written permission for consent searches, and has also seen such searches drop as a result. Two cities in Texas, Austin and Dallas, have likewise adopted written consent policies. But for now, the change has only taken place on the level of individual departments or city councils.

It is past time for legislatures and courts to address the problem of consent searches that lack genuine and demonstrable consent. Law enforcement should be required to show, by clear and convincing evidence, that the officer advised the person stopped of his or her right to decline a search, that the information was presented clearly, that it was understood, and that the subject was not under duress when consent was granted. Such evidence should be something stronger than an officer’s word, whether a signed consent slip or a video recording of an exchange with the targeted civilian.

If citizens calmly invite an officer to search their property in the full knowledge they can refuse, fine. But the decline in consent searches in jurisdictions that require written consent suggests that a lot of people are saying yes because they do not feel secure in saying no.

As in Fayetteville, we can expect the number of consent searches to decline drastically once policies are in place to make sure that consent is genuine. Such a course correction would at least address one aspect of the selective enforcement problem that is hampering and tarnishing law enforcement across the country.

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