House panel restricts consent searches at traffic stops

Texas moved another step closer yesterday to requiring peace officers to obtain written consent before searching personal vehicles at traffic stops when the House Law Enforcement Committee approved SB 1195 by Hinojosa/Dutton/Hupp last evening. The legislation had earlier cleared the Senate on the local and consent calendar.

New language in the House committee substitute - a compromise with committee chairman Rep. Joe Driver, R-Garland -- would not require written consent if it is captured with an audiovisual recording device, but if the video did not adequately capture consent, the search would be invalid. The Texas Department of Public Safety would develop the written consent instrument as well as standard language for obtaining verbal consent - sort of a Miranda-style statement that would have to be made and acquiesced in on video before a search could be conducted.

That's far from the outright ban on consent searches advocates originally requested, but this late in the session, half a loaf starts to look pretty good. Under the current bill language, there would be more opportunity for public input through the DPS rulemaking process. Plus, in the end I suspect many agencies with cameras would move to written consent, anyway, under the law. Cameras in police cars are notoriously unreliable, and I'd think police wouldn't want to risk not getting to use the results from a search if a camera wasn't working.

The bill still has three major hurdles to clear - the House Calendars Committee, a House floor vote, and it must avoid a gubernatorial veto - so it's way too early for any chicken counting. But I think a lot of people have been surprised how much support this idea has garnered, not just from the civil rights community but from conservative groups like the National Rifle Association. The notion seems to have struck a positive nerve. On Sunday, the Houston Chronicle editorialized:

The Legislature should also prohibit police from stopping vehicles and searching them without probable cause to believe a crime is being committed. Minority drivers are disproportionately intimidated and harmed by this practice, which turns up little contraband. Some citizens, including several legislators, complain that they refused to consent to a search and police conducted the search anyway without bothering to get a warrant. Searches without probable cause, which inflict great injustice while detecting little crime, should stop.

Such an outright ban on consent searches is now off the table this legislative session, but even the watered down version that passed House Law Enforcement should have a big effect on how many Texans are consent searched. In Austin, when a requirement for written consent was implemented last year, the number of people consenting to searches declined 63%.