'Strange coalition' backs consent search ban

"Talk about a strange coalition," said state Sen. John Whitmire, D-Houston, when he realized the ACLU and the National Rifle Association both supported banning so-called "consent searches" at trafic stops. Sen. Juan Hinojosa sponsored SB 1195, which was heard and left pending in yesterday's Senate Criminal Justice Committee. (See MSM coverage here and here.)

That bill would disallow officers from requesting consent to search people's vehicles at traffic stops without cause. Several other states, including Rhode Island, New Jersey, Minnesota, Hawaii and the California Highway Patrol already disallow such searches. About 35% of all searches at traffic stops in Texas are consent searches, according to figures reported as part of departments' racial profiling statistics.

Both advocates and law enforcement agreed that consent searches are only rarely "productive," meaning officers don't often find contraband when they conduct them. "You are right that in the vast majority of the time, we found nothing,"a police union representative told the committee. That seemed to bolster Hinojosa's claim that consent searches are a "waste of law enforcement's time." Nobody thought there would be a significant law enforcement impact. A representative from San Antonio PD defended consent searches by saying it was officers' job "to ask questions," but admitted that "I don't believe we'll be hindered in the majority of our job. ... The sky isn't going to fall" if the bill passes, she said.

The crux of the debate, though, hinged on whether drivers really could refuse "consent" at traffic stops. Most don't. The U.S. Supreme Court ruled in 2001 in Atwater v. City of Lago Vista that officers can arrest Texas drivers even for low-level traffic offenses that would only merit a fine, like failure to use a seatbelt or failure to signal a lane change. So, if a driver is pulled over for a traffic offense and an officer asks permission to search the vehicle, if the driver refuses the officer has the authority to arrest the motorist and search the vehicle upon impound. Obviously, when faced with those choices, drivers pretty much universally allow the search.

(The Legislature passed bills restricting police authority to arrest for fine-only traffic offenses in 2001 and 2003, but Governor Perry vetoed the legislation both times at the behest of the same law enforcement interests opposing this bill.)

Sen. Seliger, R-Amarillo, in particular thought the threat of arrest invalidated the ability to deny consent. He seemed to be searching for a compromise, and at one point suggested that requiring written consent might be the way to go. That would make a big difference. The City of Austin began requiring written consent last year, and the number of people allowing their vehicles to be searched declined by 63%. In any event, with his backing, there seemed to be support to get some version of the bill out of the committee.

I was glad to see the NRA weighing in on this -- they certainly have a dog in the fight. Police use consent searches looking for two things: drugs and guns. Between this legislation and Rep. Terry Keel's HB 823, which lets legal gun owners carry weapons in their vehicles, gun owners rights on the road could be significantly enhanced this legislative session.