Saturday, March 12, 2005

Texas consent search ban legislation monitored overseas

Demonstrating that people the world over are watching Texas' efforts to reform our criminal justice system, yesterday an Indian newspaper, New Kerala, ran the UPI coverage about Texas legislation filed to ban consent searches at Texas traffic stops. The piece also ran in the Washington Times. Reported UPI: "A bipartisan group of three lawmakers introduced bills supported by a coalition of civil rights groups that sponsored the study reported to be the most exhaustive racial-profiling study ever done in the United States."

The article by Phil Magers gave some good background on how the issue of consent searches plays out in Texas and elsewhere:

"Law enforcement time and resources should be spent investigating real crimes, not searching law abiding citizens without any justification or reasonable suspicion," said Will Harrell, director of the American Civil Liberties Union of Texas. ...

Consent searches have come under scrutiny in recent years, largely in the courts.The practice has been banned in Hawaii, Minnesota, New Jersey and Rhode Island.The California Highway Patrol imposed a temporary moratorium on the practice after a civil rights lawsuit.

Consent searches come into play every day in traffic stops across the nation when an officer doesn't have probable cause for a search.If he has a hunch, he asks the driver for consent to search the vehicle.The driver can legally refuse.

Harrell said that doesn't happen very often though because the average driver feels intimidated by the officer.In some cases the driver may not know his legal rights and submit to the search to avoid a confrontation, he said.

Sen.Juan Hinojosa, a sponsor of the legislation, said as a state senator and an attorney he knows his rights to decline the search of his vehicle if there is no probable cause.

"I am concerned that others in my community, however, are subjected to undue harassment because they are unaware they have the right to say no to an invasion of their privacy," said the Democrat from McAllen in South Texas.
In the House of Representatives, legislation banning consent searches is being co-authored by Democrat Harold Dutton of Houston and Republican Suzanna Hupp of Lampassas. The arguments put forward against the ban so far have been laughably facile:
A spokesman for a coalition of Texas law-enforcement agencies said the consent search is a way for the average citizen to cooperate in preventing crime.

"The consensual search is saying, 'OK I want to participate actively in helping you stop crime in the neighborhood and community,'" said Charley Wilkison, political director of the Combined Law Enforcement Associations of Texas.

Wilkison said most people in the United States know they have a right to refuse an officer's request for a search.He said in Texas there's a long history of cooperation between the police and law enforcement.
Well, yes, Charley, police and law enforcement do cooperate (?!?), but I doubt ANYONE'S motive for acquiescing to a consent search is to reduce crime in their neighborhood, after all, the driver of the car is the only person the officer could possibly accuse if anything is found. How many drivers, really, think there's a need to protect their neighborhood from themselves? CLEAT's arguments are pretty much a joke - I'm surprised their position is really that weak.

A consent search ban would go a long way toward reducing disparities in how often minorities are searched, to judge by a report in the Dallas News today about the Richardson PD
, but that's not the only reason it should be considered. It's not very politically correct to say so, but to me the consent search ban isn't really a racial issue. I'm a white redneck, and I sure as hell don't like it when police demand to search my car (I always say "no"). It's not a purely racial issue, though minorities certainly endure consent searches more often. Reported the News:
In Plano, the 2003 data showed that blacks were 2.5 times and Hispanics were more than three times as likely to be searched than whites.

Dallas was more than two times as likely to search blacks and three times more likely to search Hispanics than whites. ...

These so-called "consent searches" contributed significantly to the disparity between whites and minorities and should be banned, the coalition's report concluded.

A bipartisan bill introduced last week in the Texas Legislature would outlaw consent searches during traffic stops without probable cause or other legal justification.

"Individuals have a right to be left alone unless there's a probability they're committing a crime," said Will Harrell, executive director of the ACLU of Texas, which along with the NAACP and the League of United Latin American Citizens commissioned the study.

While Richardson's overall search rate for minorities was relatively low, the rate for consent searches of Hispanics was high. The rate of consent searches of Hispanics was more than twice that of whites. The consent search rates for blacks and whites were about the same.
In related news, legislation filed this week would create a central repository for racial profiling data gathered by local Texas law enforcement agencies at the University of North Texas at Dallas. The Fort Worth Star-Telegram today reports that SB 1503 by Royce West, D-Dallas (and its companion bill HB 3106 by Senfronia Thompson, D-Houston) would add $.25 to some traffic tickets to pay for the repository, and authorize the new Institute on Race Crime and Justice to create a standardized, mandatory statewide data collection and reporting protocol.

Presently, agencies decide for themselves how to collect and report data, so often numbers can't be meaningfully compared from agency to agency. The West/Thompson legislation would let future researchers parse the data more closely to analyze how officers use their discretion.


Scott Chaffin said...

No. We don't need more laws and regulations and bans that will inevtiably have loopholes that will be abused by the legislature or the police or (ahem) lawuit-happy lawyers. Never mind the nanny-state smell of it.

We need to inform people of a basic constitutional right. It's a very simple one, and any fool can understand it. Now, if the state wants to authorize printing a card with 4A, in 15 languages, mailed to every registered driver in the state, well, I'll even pay for the design work, and donate my time driving them to the post office.

I'll also just go ahead and say we don't need yet another state-owned and operated database. There might be some good come out of it, but I sincerely doubt it.

Gritsforbreakfast said...

Hey, Scott, how about if the state prints a card that says you can't ask for a search without probable cause, and distributes it to the COPS?! I guess I don't understand how banning police from searching your car without probable cause would be part of the nanny state. In the UNT study, 94% consented when no cause existed to search. I see it as restraining the nanny state, which, as Charley Wilkinson said, would pretend that consenting to a search is just doing your part to fight crime. Best,

Scott Chaffin said...

As I said, any such ban, enacted into law, will be a compromise, and it will have loopholes. That's why I don't want another law. It will inevitably lead to misinterpretations, lawsuits, fine-tuning, amendments, and more lawyers and judges and juries and court cases.

Look, we already have a ban on the search itself, the fourth amemdment, and it's invoked with one simple word - NO. That's all anybody has to say. NO.

Now, if you want to send cards to cops reminding them of the 4th Amendment and the sanctuary it affords every American citizen, I'll pay for the design work on that, too. That'll be two cards they get, since I reckon most of them have a driver's license.

But we don't need yet another new law, no matter how much lawyers, lawmakers, advocates, and lobbyists want to look like they're doing something and just willy-nilly make one. The bottom line is that this is a public education issue, not one of legislation.

By the by, I don't disagree that unconstitutional searches are a problem, primarily because they're a waste of freaking cop-time. It's an easy one to solve, though -- dead easy.

Scott Chaffin said...

Oh's nanny-statism because someone in Austin thinks they need to protect me from myself. It's insulting to me, but I don't take it personal -- lawyers love laws and think there should be more of them, and there's no stopping them once they get started. It's just basic species survival strategy -- make sure there are more things to prosecute, more things to sue about, more things to waste Joe Taxpayer's time with.

Gritsforbreakfast said...

Public ed would be fine if it weren't for the Supreme Court ruling in Atwater v. Lago Vista (2001). After that, if a driver refuses a search, an officer can arrest them, even for the most minor infraction like failure to signal a lane change, then just search the car when they impound it. (The Lege immediately after passed a law restricting such arrests, and Gov. Perry vetoed it.) After that ruling, Texans don't functionally have a right to refuse searches, and if they say 'no,' it's only respected by the good graces of the cop. That's why, IMO, we need a law.

Scott Chaffin said...

OK, now we're getting somewhere. I just looked at the first google return for that case, and it looks like, to me, an untrained layman, that our legislative betters, in a ridiculous attempt to protect us from ourselves, wrote (yet another) crappy law that some over-zealous cop abused.

Why, then, do you believe that this new law being proposed won't be just as crappily written and lead to more abuses?

This is what gets my back up: heaping laws upon laws upon bans upon amendments instead of just fixing broken crappy laws. For example -- there's no way in hell a cop should be able to take me to jail for a seat-belt violation. Who wrote that law, and why aren't we working on THAT? I'm sincere in asking that question, not trying to pick a fight or anything.

(As an aside, I'm bitching at you because my prosecutor buddies won't argue with me anymore about such things.)

Gritsforbreakfast said...

Scott, I'm afraid you ARE picking on the wrong guy, because I was involved in trying to fix that crappy law. The Lege passed fixes in 2001 and 2003, both of which were vetoed. Since Perry will be here at least till 2006, and he pledged a veto again, we're trying a different tack. If he's gone in 2007, we'll try again.

Laws aren't objective -- they ALL represent vested interests. When only law enforcement and prosecutors lobby on a topic, we get these totalitarian laws. ACLU and other civil rights groups don't have the same interests or intent in the stuff we're proposing. They're trying to usurp the 4th amendment; we're trying to protect it.

I guess I'm just not as jaded as you to believe that nothing matters and nothing can change. After Tulia, we passed a law requiring corroboating evidence for confidential informants in undercover drug stings. That was a compromise, since we wanted it to include bad cops like Tom Coleman. Since then, though, literally hundreds of bad cases have been thrown out, including those from the Dallas sheetrock scandal (which was uncovered BECAUSE of the passage of that law). Once it passed, it made the system more fair in a tangible way.

As mentioned in the update to this post, I'm with you on wanting to limit the proliferation of crappy laws. But when so many crappy ones already exist, I think it behooves us, also, to look for fixes where they might do some good.

Scott Chaffin said...

This is an interesting discussion. The more I read, the less I believe you'll be able to fix it without building on more damn legislation.

We're in this pickle, because some busybody decided that seat belts should be legislated, and that not wearing them was a criminal act. If not for that nanny-state decision, we would not have had the jackass cop overreacting, and thus ultimately undermining the Fourth.

Yeah, I'm jaded. The law of unintended consequences does that to you, which is why I'm agin more and more laws. I still believe that public education would do more good than another law, because I just can't see a wave of traffic-stop arrests happening. But you've got an undeniable point that it's possible.

Stan Schwieger said...

Mr. Chaffin:

I am a criminal defense lawyer, and I don't want anymore laws. In fact, I would repeal several criminal laws. And I do resent the "consent search" in the fact that most people DON'T KNOW THEY DON'T HAVE TO ALLOW IT.

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