Consent
Searches
to
Become
Extinct?
New
Jersey
and
California
Move
to
End
Highway
Searches
Without
Probable
Cause
5/4/01
Driving down the highway, you notice a police cruiser tailing you. He follows for miles, then hits the lights and siren. You pull over, and the trooper announces that he stopped you for failing to signal while making a lane change (or a burned out license plate bulb, or crossing the center line -- pick your pretext). You have no pistols on the front seat, there is no odor of burning marijuana, there is no evidence that would give the trooper probable cause to search you and your vehicle. "I'd like your permission to search your vehicle, sir," the trooper says, staring down at you from behind his tinted sunglasses. "If you've got nothing to hide, you should not have a problem with that." Perhaps you initially demur. After all, this is America and you have rights. But then the trooper, now noticeably more hostile, informs you that he is calling for drug dogs or waiting for a search warrant and that you must wait at the side of the road for the duration. At this point, you give in, and the trooper proceeds to tear your car apart in search of drugs, guns, or whatever other evidence of a crime he can turn up. Congratulations, you have just undergone a consent search. Consent searches occur when police officers lack any probable cause to initiate a search, but nonetheless attempt to persuade, browbeat, or intimidate travelers into waiving their constitutional right to be free from unwarranted searches and seizures. But they won't be happening on California highways for at least the next six months, and if some members of the New Jersey legislature have their way, they won't be happening in the Garden State either. The California Highway Patrol (CHP) and the New Jersey legislature are moving to the vanguard in addressing the endemic police practice of racial profiling. In California, CHP Commissioner D.O. "Spike" Helmick last month ordered a six-month moratorium on consent searches as the CHP confronts a civil lawsuit filed by the American Civil Liberties Union (ACLU). The ACLU contends that the CHP, and especially its drug task forces, are focusing on black and Hispanic motorists in the San Jose area. "The drug interdiction officers have the most severe rates of racial profiling," ACLU lawyer Michelle Alexander told the Los Angeles Times. "Officers are encouraged to use minor traffic violations to stop motorists and then get consent to search their cars for drugs... They're operating on a hunch, on a guess, on a stereotype." In documents filed with the court, the ACLU used data compiled by the CHP to show that Latinos were stopped and searched at a rate four time that of whites on US Highway 101 in the central coast area, while blacks were stopped twice as often as whites. The ACLU said a similar pattern emerged on Interstate 5 in California's Central Valley. The CHP's Helmick denied that the ban on consent searches was related to racial profiling or to the ACLU lawsuit. "Our people clearly do not racially profile," he told the Times. "I think we treat people fairly. We're just trying to be sure." But Helmick imposed the ban on the advice of a team of CHP managers who reviewed search data from July 2000 through March. The CHP began collecting racial profiling data in 1999 after a growing number of citizen complaints of racially biased policing. On the opposite coast, meanwhile, New Jersey courts and lawmakers are also zeroing in on consent searches in the context of racial profiling. Despite last week's 5-4 US Supreme Court ruling that police may arrest and search individuals for infractions as minor as traffic offenses, the New Jersey state constitution bars such tactics. Last June, a state appeals court went even further, ruling that police may not ask permission to search a car unless the officer can articulate a reason for thinking a crime has occurred. In other words, no consent searches are allowed. In handing down the ruling, Appellate Division Judge Sylvia Pressler wrote that the rule is needed because "baseless requests almost inevitably result in a search. It is our view that travelers on our state highways should not be subject to the harassment, embarrassment, and inconvenience of an automobile search following a routine traffic stop unless the officer has at least an articulable suspicion that the search will yield evidence of illegal activity." New Jersey Attorney General John Farmer, however, is appealing Pressler's decision to the state Supreme Court. In documents submitted to the court, Farmer argues that banning consent searches would "hinder the efforts of police officers to investigate crimes related to automobiles in transit, and force the police officers of our state to abandon their proactive, crime-preventative role." What the ruling clearly does hinder is consent searches. Their numbers have declined precipitously, from 440 in 1999 to 281 last year, with only 40 reported so far this year. No concomitant increase in New Jersey crime levels has been noted. But while Farmer and the troopers await a definitive state Supreme Court ruling, members of the New Jersey legislature are preparing to act. Members of the legislature's Senate Judiciary Committee, who have been holding marathon hearings on racial profiling in the state are preparing legislation to ban consent searches once and for all. "I think all consent searches are suspect," Temple University professor James Fyfe told the committee in mid-April. "I think the way to deal with it is just to say: 'You can't do it,'" the expert on police practices said. Fyfe's testimony, packed with solid statistical evidence of racial bias in consent searches, has increased lawmakers' sympathy for a legislative ban on consent searches. On the south end of the New Jersey Turnpike, Fyfe reported, troopers last year found contraband in 25% of searches of whites, but in only 13% of searches of blacks and 5% for Hispanics. "This difference in hit rates speaks volumes about the difference in standards police use in searching blacks and whites," Fyfe told the committee. "I just haven't seen a good reason to continue [consent searches]," Sen. Robert Martin (R-Morris) told the Newark Star-Ledger. Martin, who sits on the judiciary committee and is a professor at Seton Hall Law School, told the newspaper police should be able to search vehicles only with probable cause that a crime is afoot. So far, the move to legislatively ban consent searches in New Jersey is still in the talking stage. No bills to ban the practice have yet been filed. In the meantime, consent searches remain effectively banned on New Jersey highways pending a state Supreme Court ruling.
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