Thursday, April 14, 2005

No Fishing!

The Brownsville Herald today praised Sen. Juan "Chuy" Hinojosa's proposal to ban so-called "consent searches" at traffic stops without probable cause.

Grits wrote about the Senate hearing on the bill
here, and the Statesman's Mike Ward covered it yesterday. The House Law Enforcement Committe will hear the companion bill, HB 2418, joint authored by Harold Dutton, D-Houston, and Suzanna Hupp, R-Lampassas, on Monday afternoon.


Dan Graham said...

I'm not sure that I agree with passing bills like this. Sure, many people may not know they have the right to refuse searches for which the police officer lacks probable cause, but is this really a reason to do away with it?

The police ask for lots of things that can legally be refused by individuals. You don't have to talk to police officers, you don't have to take breathalizers, you don't have to get out of the car.

People don't know how to file taxes or read city ordinances either, but I don't see that as a convincing reason to do away with them altogether.

Gritsforbreakfast said...

There's an argument for banning them irregardless of rights because they're unproductive and a waste of valuable police time. But in states like Texas, where after the Atwater decision officers can arrest for low-level, fine-only traffic offenses, if you refuse consent, the officer has the authority to arrest you and search the car upon impound. Facing those stark choices, there's a 94% consent rate. The legal situation is untenable -- it's not just that people are ignorant.

In Austin, when they started requiring written consent for no-cause car searches, the number of people consenting declined 63%. That tells me a lot of people are being coerced into consenting when they would not otherwise, given a real choice.

How would you feel about requiring written consent? Judging from comments at the hearing, that may be where the bill is heading.

Dan Graham said...

Atwater stands for the principle that an arrest based on a crime is always per se reasonable (a reasonable seizure). I would find it very unlikely that arrests made simply for the purpose of searching a vehicle would be found reasonable at all, and would likely fall into one of the exceptions drawn out by the court in that case. Perhaps "extraordinary manner, unusually harmful to [her] privacy or ... physical interests," or something else.

I must admit that the reduction in searches consented to is surprising given the requirement of written consent. I guess it just goes to show you how frightened people are these days of signing anything.

Gritsforbreakfast said...

No officer would ever say they arrested someone for refusing consent, of course. The stated reason would always be the Class C misdmeanor, which Atwater ruled reasonable per se.

Dan Graham said...

The officer wouldn't have to admit to it. You'd just have to show that he never arrests people for your crime and that the only difference between those cases and yours was a refusal of a search.

At least that's how it works in other cases where police try to rely on a law like that to act unlawfully. Which is why Miranda has been getting a lot of heat lately due to police abuse of the principle.

Gritsforbreakfast said...

All that "heat" isn't stopping the abuses on the ground with Miranda. I just view the question reversed from how you pose it -- somebody has to explain to me why an officer should ever be allowed to search without cause. The plain language of the Fourth Amendment doesn't support it. I'm always surprised when anyone thinks searches without cause are "reasonable," which is the constitutional inference if you think they're okay.

Also, the legal maneuverings you describe to prove abuse would require some expensive, fancy lawyering that's beyond most people's means to pursue over a bad search at a traffic stop -- why make anybody go through it? I think it's better public policy for the Legislature to establish clear boundaries for searches, especially when there's so much potentially coercive grey area in the legal rulings. Best,

Dan Graham said...

The simple answer to yoru question is that people should be allowed to permit officers to do things that they wouldn't be able to do by force.

It's not always the case that the police officer is trying to "trick" the citizen into letting him search a trunk full of drugs when he otherwise wouldn't be able to.

And the law of the little man is always decided by fancy lawyering, from Brown v Board, to Atwater, to Roe v Wade and Casey.

And the "heat" on Miranda might stop the abuse if the supreme court rules against it. Which is how the "heat" usually works its magic, even in cases like Lawrence.

Gritsforbreakfast said...

So, you're willing to tolerate the potential for legal coercion in order to preserve people's right to allow officers to search their vehicle without cause? They can always volunteer if anyone is really so public-spirited.

Otherwise, you're saying the courts would ban bad practices, but then I don't get why one wouldn't want the Legislature do so. I hope they do.