Written consent for vehicle searches and déjà vu at Austin PD

Grits was pleased to read that, starting next month, the Austin Police Department will require officers to obtain written consent for searches at traffic stops when they don't have probable cause, and to notify drivers they have the right to refuse. See coverage from the Austin Statesman, the Austin Chronicle, and a Statesman editorial out today. However, the news left me with an odd sense of déjà vu.

I was under the impression this was already the policy in Austin based on prior media reports. E.g., here's a 2005 UPI story which mentioned that "When the Austin Police Department recently began requiring written consent to search a vehicle at a traffic stop, the number of consent searches dropped by more than 60 percent." In 2006, the Austin Chronicle's Jordan Smith reported that, "The APD already requires officers to get written consent," though her most recent story didn't mention it. See also this Grits coverage based on a Statesman account that's no longer online. Indeed, at one point Grits even posted a copy of the written consent form (pdf) APD was supposedly using (which the Texas Criminal Justice Coalition obtained under an open records request).

One tidibit about the new/old policy remains unclear: The Statesman reported that it applies only to "vehicle searches," while the Chronicle reported that it would apply during any stop - "traffic, cyclist, or pedestrian." (Since most searches of pedestrians and cyclists are so-called "Terry frisks" performed ostensibly for officer safety, it's hard to envision precisely how written consent would work.)

In any event, the supposedly new policy was announced after the release a report by the Police Monitor finding that one in eight traffic stops by Austin police last year involving black folks resulted in searches compared with one in 28 among white people. The Chief clearly felt the need to counter bad publicity and almost immediately reacted with this policy "change."

My question(s): Was the earlier written-consent requirement a) erroneously reported or b) eliminated without publicity between then and now? If the latter, why, and by whom? I suppose there's also an option "c": That the chief cynically re-announced an existing policy to deflect criticism based on the latest Police Monitor's report. ¿Quien sabe? Maybe if the Police Monitor report says the same thing next year, he can announce it again.

Indeed, coverage of this news has been decidedly bereft of historical context. The Statesman editorial mentioned that "The notion of written consent is not new. Legislation that would have required officers to obtain a written permission to search vehicles was introduced in the 2009 session but encountered resistance from police groups and died." But in fact, legislation to require written consent for searches at traffic stops has been filed at least since 2001 (back then, by then-state Rep. Domingo Garcia, who's presently in a runoff battle for a DFW-area Congressional seat). In 2005, Sen. Juan "Chuy" Hinojosa and Rep. Harold Dutton pushed through a requirement that consent for searches at traffic stops be written or recorded; the bill passed both chambers of the Texas Legislature only to be vetoed by Governor Perry at the behest of police unions.

Grits will attempt to sort this out but the MSM coverage so far raises more questions than answers.

MORE: See more coverage from The Daily Texan.

AND MORE: I forwarded this post to Austin's Police Monitor Margo Frasier who replied thusly:

Unfortunately, I cannot tell you for sure when APD abandoned the written consent form and began to rely on audio/video consent.  From looking at General Orders, as early as March, 2006, they allowed an officer to record consent on audio/video instead of having the person sign a consent form.  The consent form was to be used if the "consent" was not recorded on audio/video.  The same policy continued when APD redesigned its policy manual and began using "Lexipol" in August, 2011. 

One of my many concerns is that APD has been deficient in following the current policy.  For example, in 2011, 68% of the searches were non-consent (probable cause or incident to arrest), 6% (actually 5.9%) were consent, and 26% were "unknown".  In other words, the APD told the State of Texas in its Racial Profiling Report that it doesn't know whether the search was due to an arrest, probable cause, consent, or, I would suggest, unlawful due to not being based on one or more of the first three listed.  Additionally,  I do not know of a single case (during my time here) in which an officer has been disciplined for not following the Search and Seizure policy requiring either audio/video consent or written consent.  My hope is that APD not only issues a clear policy of requiring written consent, but also follows it up with training, and, if necessary, discipline. 

You bring up the issue of "Terry frisks." Although I know that you are knowledgeable in these things, some of your readers may not be.  The term "Terry frisks" comes from the Supreme Court decision Terry v. The State of Ohio and are to be used in a limited circumstance.  It is be a protective frisk based on reasonable suspicion.  In other words, it is to be a frisk limited to patting the outer surfaces of a person's clothing in an attempt to find weapons.  However, it is only supposed to occur when an officer can otherwise justify stopping the person and has a reasonable fear for his/her safety...not as a pretext to search the person for evidence of a crime such as possession of drugs.