Austin: Drivers Refuse Searches When They Know They Can

Sixty three percent fewer Austinites consented to police searches of their vehicles when they knew they had the right to refuse, according to the Austin Police Department's new racial profiling figures for 2004, released yesterday. (Inexplicably, the release and report are not online.) The number of traffic stops in which a search was conducted in Austin declined last year to 11,250 from 15,785 in 2003, with most of that reduction due to a decline in so-called "consent searches," where an officer asks permission to search but has no probable cause or legal basis to do so.

The news comes on the heels of a statewide report on 2003 racial profiling data by civil rights groups (conflict alert: I'm listed as an editor in the acknowledgements) that showed Austin PD still searches drivers at traffic stops more frequently, for example, than Dallas or Houston.

Last year, when those same civil rights groups produced the first-ever statewide analysis of Texas racial profiling data, local activists called for a complete ban on consent searches by the Austin PD, which consent searched blacks more than five times as often as whites. Latinos were also oversearched. The chief and city manager responded by pledging to reduce the number of consent searches by 40%, but did not tell activists how they intended to do that. (Consent searches have been banned entirely in New Jersey, Minnesota, Rhode Island, Minnesota, and by the California Highway Patrol.)

Maybe it had been publicly discussed somewhere, but I didn't know until their comments in the paper last week (in response to the new report) that Austin PD instituted a new policy in 2004 requiring officers to get written consent to search a vehicle at a traffic stop if they don't have probable cause. That's the mechanism, then, that functionally caused the 63% decline in consent searches.

APD's new policy is similar in concept to Texas legislation proposed in 2001 by then Rep. Domingo Garcia, D-Dallas, which would have required officers to inform drivers that they didn't have to consent to a search and they were free to go.

In other words, when people were informed of their Fourth Amendment rights, 63% didn't want to be searched. That implies that thousands of people were being intimidated into allowing searches before, because they did not know their rights. (I'd be remiss not to mention that this change in tactics resulted in no discernible increase in crime or decline in police effectiveness.)

That's a good thing, an important development, and it merits the Statesman's headline saying APD's numbers were "praised by civil rights groups." But that's not the whole story. Yes, the number of consent searches went down, but the city's goal of reducing the rate of "unproductive searches" was not achieved.

By "productive," APD means that a search actually resulted in finding contraband -- almost always drugs or (less frequently) guns. APD had predicted that the searches excluded by their new policy would cause the percentage of searches where they actually found something to increase, but instead it actually declined slightly, from 12.5% in 2003 to 12.1% in 2004. (In 2003, APD was twice as likely to find contraband on whites as blacks, even though blacks were consent searched at five times the rate of whites -- comparable race-designated contraband figures were not included in the new report.)

"It is uncertain why the seizure rate was not better when the officers applied stricter procedures to asking for consent to search," APD's report declared. Really? It seems pretty obvious to me. It's difficult not to conclude from the data that searches where there is no probable cause to believe a crime is committed -- i.e., consent searches -- find contraband basically randomly, and that the officers' much-touted Super-Spidey-Sense that's supposed to detect crooks doesn't work that well.

Instead, I'd hypothesize from these figures that around 12% of vehicles in Austin possess contraband, no matter what, since that's the rate at which it was found both when consent searches were profligate and when they were restricted. You'd probably get close to the same rate if you stopped EVERY car on the road and searched them. (Bolstering that estimate, APD reports that 14.4% of pedestrian stops find criminal activity, and those stops occur primarily "when someone is acting suspicious," while traffic stops primarily occur basd on "a violation of the transportation code.")

Austin's experience offers a number of important lessons. First, police departments can reduce the number of consent searches without harming public safety. Second, an overwhelming majority of drivers will refuse consent when they know they have a right to do so. Third, consent searches find contraband essentially randomly -- "stricter procedures" don't cause the percentage of "productive" searches to increase, and in fact they declined slightly.

Finally, and perhaps most importantly, Austin's response to problematic numbers in their racial profilng report shows that data collection and analysis can influence policy. Austin saw its bad numbers, community leaders called on them to do something about it, and the city implemented a new policy that improved but did not resolve the situation. Everything's not perfect, and I've no doubt debate will continue. But Austin's case study is exactly the type of result we hoped for when the racial profiling law passed back in 2001 -- generating hundreds of local debates that, little by little, can lead to change.