Official guidance given to Texas prosecutors by their professional association confirms the wisdom behind SB 1195: Written or recorded consent for vehicle searches at traffic stops should be preferred to mere oral consent. On page 57 of a manual by the Texas District and County Attorneys Association entitled Traffic Stops, Senior Staff Counsel Diane Beckham writes,
"TIP: Although oral consent is sufficient, written consent is definitely preferred to oral consent because it reduces the likelihood of a swearing match in court later."Thanks for the tip. I certainly wish Ms. Beckham had found the time to testify to that effect. That's exactly the argument bill proponents made in the Legislature to support recorded consent for vehicle searches -- it wouldn't just protect drivers' rights, it would protect cases made by officers through legitimate consent searches from being thrown out later in court.
Texas prosecutors have a greater need for the certainty provided by written consent forms than DAs in other states. Reports Beckham, the U.S. Supreme Court requires officers to prove they received consent by a "preponderance of the evidence," but under the Texas Constitution officers must show "clear and convincing" evidence consent was given. That means unless officers get it in writing, Texas vehicle searches that locate contraband are even more likely than in other states to have a judge throw out evidence after the fact.