Tuesday, March 10, 2009

Time to implement written consent at traffic stop searches

Can Texas drivers really refuse "consent" to seach at traffic stops when police officers have the ability to arrest them, even for the most minor traffic violation if they refuse comply? That's the question posed by Rep. Harol Dutton's HB 917, which would require written or recorded consent for searches at traffic stops without a warrant or probable cause.

The bill was up in the House Public Safety Committee yesterday. (See the video here beginning at the 2:43:45 mark.) I've supported this idea for years and think it would be a big improvement over the status quo.

Critics of the legislation were allowed to testify first. A CLEAT lobbyist called the legislation a bill with "evil intent," because he claimed it assumes all officers are intentionally violating the rules. I thought that was a completely bogus argument. You could just as easily say that laws against murder assume all citizens may be murderers. That's obviously not true - such laws are established to handle rogues and outliers, not workaday officers who follow the rules. Rep. Dutton later made the same point.

Also speaking in opposition to the bill, Tom Gaylor of the Texas Municipal Police Association argued that Texas' exclusionary rule could mean inadvertently unrecorded consent might be excluded. However, Rep. Stephen Frost pointed out that in a he-said-she-said situation neither side could definitively prove what happened unless there's a recording or written documentation. In fact, that's the reason the Texas prosecutors association prefers written consent according to their manual on "Traffic Stops."

Surprisingly, Gaylor opined that coercive police tactics have declined since Texas' drug task forces were disbanded! I thought that was a particularly telling admission since Gaylor and TMPA for years opposed efforts to rein in rogue drug task forces. Now he's holding up reforms he earlier opposed as a reason not to implement further good-government bills. I like Tom Gaylor, but I'd find his testimony more credible if he'd supported significant reform legislation on these topics in the past.

Joe Saldaña, a rep from the San Antonio police association was similarly disingenuous. He didn't like the idea that a police officer must inform the driver they had the right to refuse consent. But what's exactly wrong with informing drivers of their constitutional rights?

Dozens of Texas police agencies already require written consent and despite the chicken little rhetoric, the sky didn't fall when they implemented it.

When Austin PD implemented written consent, the number of consent searches declined by 63%. That indicates to me that a lot more Texans would exercise their right to refuse a search if their rights were explained to them.

Saldaña complained that officers with "reasonable suspicion" to search would be inhibited from searching, but that's just false. If an officer identifies "reasonable suspicion" at a traffic stop, they can search already under current law without consent. This proposal only address instances in which they do not have "reasonable suspicion." That claim was a false, obfuscatory argument that has no credible basis in the real world.

Scott Cisco of the Houston Police Department also opposed the bill, claiming written consent might still be contested in court over the issue of "voluntariness." However, there's no doubt a written consent form would put the prosecution in a much stronger position, not a weaker one. Indeed, the prosecutors' association manual on traffic stops said written consent is "preferred" precisely because it avoids swearing matches later in court.

Finally, Matt Simpson of the ACLU of Texas argued audio-video documentation would save a lot of time in court because it would eliminate future claims that consent was coerced, eliminating pretrial hearings that cost the state time and money. He saw nothing wrong with a trade-off that created better evidence while simultaneously informing citizens of their rights. If there's a reduction of consent searches, he said, it would encourage officers to pursue actual crimes instead of merely engaging in fishing expeditions.

In his closing, Dutton emphasized that defense attorneys would find themselves at a major disadvantage in court if a defendant had signed a written consent form, and the prosecution would benefit most. He also pointed out that racial disparities among consent searches were exceptionally high - in some jurisdictions blacks are subjected to consent searches 3-5 times more often than white folks, or even higher.

This is an excellent and much-needed bill, though it was vetoed in 2005 by Governor Perry under pressure from these same prosecutors and police unions. It's still needed, though - the problems that first spawned the proposal certainly have not abated

See prior, related Grits coverage:


Don said...

Well, I'm a great believer in probable cause, myself. You know, the Constitution and all. So as far as I'm concerned, we can s-can the consensual searches period. No PC-No Searchy. Course, THAT'S gonna happen. The written or recorded consent is a step, though.

TxBluesMan said...

CLEAT is right.

Anonymous said...

CLEAT is right!

Maybe The Representative can get some legislation passed where they don't harass drunk drivers.

Gritsforbreakfast said...

Bluesy, if CLEAT is right that requiring written consent means the Lege thinks all cops are rogues, then it follows that laws against murder assume all Texans are murderers. That's just ridiculous.

The logical fallacies you're willing to embrace to protect bad cops frequently astonishes me. I know you make you're living defending them in disciplinary hearings, but surely there's SOME limit to the absurdities you're willing to espouse on their behalf?

TxBluesMan said...

Rep Dutton's question was valid. "When is a search not voluntary?"

If a police officer asks to search, and you consent, is that voluntary? Or is it the position of the bill supporters that the public is too stupid to refuse?

Rep. Dutton blames the whole situation on the U.S. Supreme Court, the very justices that guard our Constitutional Rights! (at 2:45:10).

Since you can be arrested for Class C offenses, if you don't give verbal consent, the officer then arrests you and searches the vehicle anyway under an inventory search...

Of course, he fails to realize that his argument makes no sense (as one of the committee members sort of pointed out). You require written, audio, or video recorded consent. You refuse.

Guess what?

The officer can still arrest you and search the vehicle.

The committee member correctly stated that the solution was not the consent issue, but to change the law to prohibit arrest for Class C offenses...

I personally thought that Chris Jones did a much better job. Under the system that Rep Dutton proposes, Tim McVeigh would still be at large. Tom Gaynor (sp?) also pointed out what you don't want to admit - that this is just another way to handicap the police.

Anonymous said...

The Constitution also "handicaps" police. If that's always a bad thing, then by all means let's do something about that pesky Constitution. Apparently, some believe that citizens exist to provide opportunities for law enforcement actions.

Gritsforbreakfast said...

Bluesy, this wouldn't "handicap" cops - it just documents their actions.

Really, this bunker mentality of yours (and CLEAT, TMPA) is silly and counterproductive. The fact is this bill would HELP cops because it protects them from later being accused of constitutional violations.

I remember helping pass Texas' racial profiling law in 2001 that put $18 million worth of cameras in police cars. These same groups fought it tooth and nail. "You don't trust us!" "You're saying we have evil intent!" "The sky is falling, the sky is falling!" Yet in reality those cameras protect good cops much more often than they accuse bad ones.

The same thing would happen here if the police unions would pull their head out of their collective ass and think about their actual self interest instead of just reflexively opposing everything reform groups support.

Anonymous said...

"He didn't like the idea that a police officer must inform the driver they had the right to refuse consent. But what's exactly wrong with informing drivers of their constitutional rights?"

Because although LEOs all swear to uphold the Constitution of the United States, most, if not all of them, have no respect for it, don't understand it and consider it to be a hinderance to their job.

I can't begin to count the number of times I have invoked my Consitutional rights to cop, only to be asked "what are you, some kind of lawyer?" always with disdain. I always reply that unlike them, I have actually read and comprehend the US Constitution.

Cops are, for the most part, bullies, liars and cowards, using the color of law to make their way in this world. I know of what I speak, my father was one.

TxBluesMan said...


Just a couple of comments.

First, beware of the law of unintended consequences. Let's assume that HB 917 passes and the the Gov doesn't veto it, like he did last time. OK, no consent searches without written, audio, or video documentation. What will probably happen is that you'll see more arrests for Class C misdemeanors, followed by a search incident to arrest and an inventory of the vehicle. Why would the officer ask for consent if, based on what you indicate, the chances of consent go down by two-thirds?

Granted, the larger cities won't do that - they have too much to do already - but the smaller agencies will. Police departments are already impounding cars for no insurance. I think that you will see the same thing for no license, registration, inspection, etc. As to filling the jails? Simple solution - the officer arrests them, searches and impounds the car, books the driver into jail, and then has the jail release the arrestee on a PR bond (the equivalent of a ticket).

Second, other than funding cameras for agencies, what did the racial profiling bill really accomplish? According to data from the Texas Criminal Justice Coalition, now 18% of the DFW area agencies don't even consent search blacks, although they still do so for whites. Congratulations Grits, now those agencies only discriminate against Anglos... In 43% of those agencies, Anglos are searched as often or more often than blacks. Several agencies no longer do consent searches due to political correctness - meaning that another tool for law enforcement was lost.

Fortunately it won't matter. If the bill passes, the Gov will likely veto it, again...

Anonymous said...

Rev. Kiker here:

Grits, you remember well, I'm sure, how hard we fought to require corroboration for police testimony, and how hard the police unions fought against it. We did get requirement for corroboration for "snitch" testimony, but failed for police officers. "You don't trust us," they whined. Trust, but verify! I think it was the Gipper who made that phrase famous. That's at least one good thing in his legacy.

Anonymous said...

I've taught my kiddos to always refuse consent but cops really do try to push you around when you don't understand the constitution. Texas especially has a problem with bully cops. (See Tenaha as the most recent example.) While I am always worried about the unintended consequences of a law, I can't think anything bad at all would stem from restraining police.

Anonymous said...

God, TxBluesMan has so many fallacies in his statements my head is spinning.

Anonymous said...

I remember the cop organizations fought the on-car cameras. I don't think that anyone can argue that the cameras have streamlined DWI cases in addition to protecting the rights of citizens. Though suppression hearing still have some element of he said/he said, the camera doesn't (often) lie. It is true that occasionally, lying cops are contradicted by their own camera, but more often than not, the camera saves everybody a trial as it starkly demonstrates the intoxication (or lack thereof) of the accused (except for those odd cases where the camera film is "lost"). As for the claim that there would be more arrests for Class C offenses were consent required to be filmed, my understanding is that such an arrest must be pursuant to department policy, not just on the whim of the cop on the street. I doubt that any department has a per se policy of arresting class C misdemeanants.

TxBluesMan said...

You miss the point.

The larger departments may well have such a policy, but the smaller departments almost certainly won't.

And it is not at the "whim" of the cop, it is "officer discretion" - and they would decide to arrest...

Gritsforbreakfast said...

That would be a constitutional violation, Bluesy. Dutton's point is that if it's recorded, that type of misconduct would be captured, while if consent is given willingly there would be no he-said she-said dispute in court.

TxBluesMan said...


How is it a constitutional violation? Officers have the right to either cite or arrest. See Atwater v. City of Lago Vista, 532 U.S. 318 (2001).

It doesn't matter if the grounds for arrest is a pretext to search the car, so long as the officer has objectively good grounds for the search, like an arrest.

There is nothing to prevent an officer from asking for consent, and if refused, making a legal arrest and searching the car on that basis.

There is nothing unconstitutional about it. You may not care for it, but it is completely legal and constitutional. You may want to look at p. 6 of the book, Defendant's Rights, by Hamid R. Kusha (2004) which states:

"For example, in some jurisdictions police officers are allowed to make full arrests for minor traffic violations so that officers can conduct a comprehensive search of vehicles without need for a probable cause..."

Like I said earlier, beware of the law of unintended consequences...

All Rep. Dutton's bill will do is to increase the number of Class C arrests...

Anonymous said...

I think I love TxBluesMan. You are right on with your comments. I don't understand why people think this written consent stuff is going to save everyone. It is just going to make cops follow a different LEGAL route to get into the cars they suspect are carrying contraband.

The folks on this site aren't going to like you quoting actual case law in support of the police. I predict you will be banned soon.

Anonymous said...

I predict you will be banned soon.

Despite the fact that he's been commenting here for nearly a year, you predict he'll be banned. Right. Has he ever even had a comment deleted?

Some people like to imagine themselves martyrs, all available evidence to the contrary.

Anonymous said...

More arrests for nonsense reasons may work in favor of the reformers - it is one thing to "consent" to a search on the spot. It is another for innocent (and face it, being guilty of some Class C infraction is basically the same as being innocent) citizens to get arrested, go to jail, and then have their stuff searched.

I would hope that tolerance for police would swiftly decline at that point and spark greater reforms than getting a signature before a search.

-- Invid

Gritsforbreakfast said...

Bluesy, they have a right to arrest for a Class C, but if video evidence showed it was done coercively as retribution for refusing a search, you know full well it wouldn't be constitutional.

What you want, clearly, is for their to be no evidence that could ever prove such a thing, and for officers to be able to bully drivers into searches without informing them of their right to refuse.

Todd, I'm not surprised you love Bluesman. You and he should get a room. Lucille is right that if Bluesy were going to be "banned" it would have happened long before now.

TxBluesMan said...


I hate to disagree, but Grits ain't going to ban me - if so, he would have done so a long time ago.

He's actually an OK guy, just misguided (jk Scott)...


Again, exactly how is it unconstitutional? You may want to look at how SCOTUS looks at the issue. For example, in Virginia v. Moore, ___ U.S. ___, 128 S.Ct. 1598 (2008), officers arrested Moore for a suspended license where state law required that a citation be issued. During the search of the car incident to arrest, they found crack cocaine. The Virginia Supremes found that the arrest and subsequent search violated the Fourth Amendment since the arrest was not authorized under state law.

SCOTUS reversed (9-0), stating:

"In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable." Moore, at 1604.

Note that this expands Atwater. In Atwater, the state statute authorized the arrest for traffic violations. In Moore, the state statute did not authorize an arrest, but SCOTUS unanimously held that the search was still reasonable. Do you really think that they will declare an otherwise legal arrest to be unconstitutional?

Remember, the Texas courts have already allowed the use of pretext stops in Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995), stating:

"We therefore hold, instead, that an objectively valid traffic stop is not unlawful under Article I, § 9, just because the detaining officer had some ulterior motive for making it." at 674.

The courts don't look to motivation, they look to objective reasons, and so long as the officer can show that he had valid grounds for arrest, it will be constitutional.

The following could be on video and be admissible:

Officer - can I search your car?
Driver - no.
Officer - you are under arrest for expired registration. I am now going to search your car incident to arrest and inventory the contents.
Driver - you can't do that!


Def. Attorny - your honor, he can't do that.
Judge - yes he can, he had a valid reason for arrest. motion to suppress denied.

Sorry Grits, but case law is solidly on the side that supports the arrest and search - what the officer's motivation is doesn't matter, so long as he has an arrestable offense.

If you have any cases that show otherwise, I would be interested in seeing them... ask Doran to help...

Anonymous said...

3/05/2009 03:24:00 PM

Gritsforbreakfast said...
"Can the state create a law that supercedes what the Supreme Court has already ruled on?"

In this case, yes.

The Constitution establishes a floor, which is what SCOTUS rules on, 3:24. The states can and often do afford their citizens greater protection than that minimalist baseline.

3/05/2009 03:45:00 PM

What about it Blues Man? Your case cites seem to contradict Scott's response to this question.

TxBluesMan said...

Anon 8:38,

Case law does contradict Grits position on the constitutionally of this. Both the Federal and Texas Courts use an 'objective' standard to evaluate these cases, not a 'subjective' one.

In other words, so long as the officer has a legal basis for his action, like the statutory authority to arrest on a traffic offense, then the courts will uphold the police action.

The same issue has come up in the past for so-called 'pretext stops' where police would stop for a minor traffic violation when they really wanted to search the vehicle.

The libs and the defense bar screamed that this was unconstitutional.

Guess what?

It's not unconstitutional. See Crittenden, see also Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000) which stated:

"The Court made clear that the traffic violation itself constituted an objectively reasonable basis for the stop, so any ulterior motive on the part of the officers was irrelevant." Walter at 543.

Grits is a good guy, but his training is in journalism, not law. He's just hung around the ACLU guys way too much...

TxBluesMan said...

I failed to mention that Scott was correct on the baseline/minimum standard area.

The state can and does exceed Federal constitutional standards. Art. 38.23 is a good example where Texas law far exceeds the requirements of the U.S. Constitution.

Anonymous said...

Thanks for the response Blues. I was surprised when I checked recent rulings by the Supreme Court on pretext stops and arrests.

Mr. Dutton seems to be wasting his time based on these rulings.

TxBluesMan said...

LOL, the good Rep Dutton does that every session, along with his cheering section.

He's known for the eliminate the death penalty bills, the 'lets stick it to the cops' bills, etc.

Anonymous said...

Laws are supposed to protect our freedoms, not violate them. Righteo, pull out the constitution.

The founding fathers feared any group, government or individual gaining too much power. The police routinely run rough shod over peoples rights on a routine basis these days. Many have a hostile attitude toward the citizenry they are supposed to be protecting and serving. It is prevelent in smaller towns. I have been bullied and harrassed so many times that it's unreal. I love their standard question,"Mam, do you have anything in the vehicle that I need to know about. "no sir", "okay, you must be hiding something if you won't let me search". I never waiver, but I am not rude. I just refuse to consent to anything. hey can tell me that they are calling the dogs, backup and whoever else. I do not give in. I've been told that driving on a gravel rd was probable cause, you name it. I refuse politely. It is sad when law enforcement is hostile to te public. Anything that will stop them from stomping on people rights I support. They show no regards for the rights of others. Rights only apply to them and their families and that is not acceptable. Those guys need to be out taking care of real criminals, not the elderly, women and children.

Anonymous said...

"He's known for the eliminate the death penalty bills, the 'lets stick it to the cops' bills, etc."

I don't see how this bill "sticks it to the cops". Grits rightfully pointed out the sky hasn't fallen in those areas where recorded consent is policy. So no, it's not the end of the world for cops. I understand your arguments that it is possible that unintended consequences could surface (somehow I really doubt that you are concerned about them). Perhaps there should be additional legislation tightening the discretion officers have in making an arrest if they are going to do it specifically to circumvent one's 4th amendment rights. We can hold Texas cops to higher standard if they are found to abuse this particular law. Also a legitimate question:

Do laws in other states that involve civil citations rather than fine-only misdemeanors allow officers the discretion to make an arrest?

Dutton does author a lot of legislation I agree with. I'm against the death penalty, so I obviously support that and I have no idea how that's anti cop (there are cops that oppose it ya know). Moreover, Dutton is concerned with the adverse consequences of our drug laws which are contributing Texas jail and prison populations unnecessarily.

There are things I disagree with him on. Anyways, at least he has the courage to propose legislation that needs to be out there so Texas can have a healthy debate.

Anonymous said...

Looks like Virginia v Moore answered my question. I'm the anonymous guy above at 7:52 pm. It seems to me that even if a state doesn't authorize officers to be able to make an arrest, they still can for any minor offense. This basically destroys the 4th amendment right off the bat.

Now, perhaps if the state constitution specifically said that an officer can't make an arrest on probable cause of minor traffic offenses, things would be different because the Texas Constitution gives greater protection than the 4th amendment?

Anonymous said...

Actually I take back what I said because it appears that in VIRGINIA v. MOORE, the offense was classified as a misdemeanor that required the officer to issue a summons, not a civil infraction. So a civil infraction, being not a matter of criminal law, should not give officers the discretion to make an arrest. Perhaps certain very minor traffic offenses should be moved to this category.

As it was mentioned, it is possible for Texas to adopt a stronger search and seizure standard than the Federal government's constitution. If I'm wrong, correct me on any of these points.