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Wednesday, Aug. 15, 2001

In early August, New Jersey Republican gubernatorial candidate Bret D. Schundler announced that he favored a temporary, statewide moratorium on consent searches — that is, searches the police conduct with a suspect's permission. The goal of the moratorium would be to reduce racial profiling on the highway.

Schundler's announcement met with surprise and some skepticism. The candidate had previously joined his Democratic opponent, Jim McGreevey, in opposing just this sort of proposal, when several members of the New Jersey Senate Judiciary Committee had unsuccessfully urged it upon Governor Donald T. DiFrancesco.

Regardless of whether Schundler's conversion on the issue is sincere or politically motivated, however, the consent search moratorium is an excellent idea whose time has come. Not just New Jersey, but every state, should consider adopting it.

Why Police Ask for Consent, and Why Suspects Give It

One might reasonably wonder why consent searches —which have been with us for many years — exist at all. If a police officer has probable cause to search a car, why doesn't she just go ahead and search rather than asking for permission first? Is she just being polite?

The answer is no. Often, police ask for permission precisely because they lack probable cause — so that a nonconsensual search would violate the Fourth Amendment. Armed with a driver's consent, however, police can circumvent the Fourth Amendment: They may search a car, even if they have no basis for believing that the suspect is concealing anything.

One might reasonably wonder next why anyone hiding evidence ever consents to a search. A good number of my students in criminal procedure, for example, find it inexplicable that a man whose trunk is full of stolen property or illegal drugs would say "go ahead" when police ask for consent to search.

The reason that many suspects consent is that they mistakenly believe one of three things to be true: that they do not have the right to say no; that the officer will not take no for an answer; or that if they do say no, then their refusal will itself give the officer probable cause to search. In short, they believe the search will happen one way or another, and things will go more easily if they just comply, rather than putting up a fight.

A Warning about the Right Not to Consent?

Given these widespread misconceptions — which amount to beliefs that citizens do not have, or cannot exercise, their Fourth Amendment rights — one might think that the police should be required to warn suspects that they have the right not to consent to a search.

Of course, such warnings must be given in a related criminal context. The Court held in Miranda v. Arizona that prior to any interrogation, the police must tell a suspect in custody that he has the right to remain silent, that anything he says can be used against him in court, that he has the right to an attorney, and that if he cannot afford one, a lawyer will be appointed for him.

The reason for these warnings is that without them, a suspect might answer an officer's questions only because he believes he has no other choice. The warnings notify him of his rights and assure him that the police are prepared to honor them.

The very same rationales would seem to argue for warnings in the context of consent searches as well. Nevertheless, the Supreme Court has held that consent search warnings are not legally required. In 1973, in the case of Schneckloth v. Bustamonte, the Court said that a consent search is not automatically invalid if the person who consented did not know he had the right to refuse. Although knowledge of the right to refuse consent is a relevant factor in determining whether consent was voluntary, the Court stated, it is not an indispensable one. Warnings are accordingly unnecessary.

Justice Thurgood Marshall retorted in dissent that he "would have thought that the capacity to choose necessarily depends upon knowledge that there is a choice to be made. But today the Court reaches the curious result that one can choose to relinquish a constitutional right — the right to be free of unreasonable searches — without knowing that he has the alternative of refusing to accede to a police request to search."

Consent Searches And Racial Profiling

Particularly given Bustamonte's failure to require warnings, the combination of consent searches and racial profiling is a noxious mix. When racial profiling is employed, the "consent search" turns out, in practice, to constitute an event fraught with discrimination.

Police in New Jersey and elsewhere have long engaged in racial profiling on the highway — the practice of disproportionately stopping minority drivers for relatively trivial traffic violations. Once police have stopped a driver, they often ask for permission to search.

When racial profiling is used, minorities are disproportionately searched, because they are disproportionately stopped. Moreover, even beyond this disproportion, there is another: Once stopped, a driver is more likely to be asked for consent if he or she is a minority group member.

The dignitary harms of being stopped because of race, and then searched because of race, are very serious ones. Moreover, because people "consent" even when they have something to hide, such searches will sometimes yield evidence. As a result, a white driver who has just bought drugs and is bringing them home may get away scot-free — never stopped, never searched, and never caught — while a minority driver who has done the same thing may be jailed. Punitive drug laws may stay on the books because they have little effect on affluent, politically powerful white communities.

Incentives to Prevent Profile Stops

A moratorium on consent searches would spare minority drivers in New Jersey this racially targeted indignity, along with the unfairness of being prosecuted when whites are not. It might also cut down on race-motivated stops themselves.

As some police officers have candidly testified, they use racial profiling because they believe that it "works." By this they mean that it helps them catch real criminals — those who have done far more than just exceed the speed limit by a few miles per hour, itself a relatively innocuous (and almost universal) transgression. In particular, police have used the traffic stop as a pretext for narcotics enforcement.

Many police officers believe (and some have publicly stated) that minorities are more likely to engage in drug trafficking offenses than whites. With this in mind, they stop minority drivers in the hope of finding something during the consent search that follows the stop.

If police perform enough of these searches, of course, they are bound to find evidence eventually. Hence, there is a perceived payoff for racial profiling, even if the overwhelming majority of people stopped suffer undeserved humiliation and prejudice. Police, like people generally, are more likely to remember the times that their prejudices are confirmed than the (more numerous) times that they prove to be unfounded. And after all, finding a large cache of drugs and bringing the perpetrator into the station is much more memorable for any police officer than opening a trunk, finding it empty, and waving the driver on.

If police stop minority drivers because they expect to find drugs in the trunk, then a moratorium on consent searches could be just what the doctor ordered. When police lack probable cause to search — as they do in the case of most traffic stops — and they know that they cannot search on "consent" either, then it is fair to expect that they will not bother stopping the car in the first place, unless the driver is truly creating a road hazard that independently calls for intervention.

A prohibition on "consent" searches thus removes a significant law enforcement incentive for conducting pretextual traffic stops. This can only inure to the benefit of unfairly targeted minority drivers. And if you happen to be a white male driver with long hair or a red sports car, you too might turn out to be an incidental beneficiary.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark, where she teaches Criminal Procedure and Evidence. She has published several articles in the Fourth Amendment area, including "Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence," 96 Columbia Law Review 1456 (1996). Her article "Stopping A Moving Target," which proposes an alternative approach to reducing racial profiling on the highway, will appear in The Rutgers Race & The Law Review (Volume 3, 2001).

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