A major factor contributing to the widespread distrust of the police by minority communities is the law enforcement practice of disproportionately stopping and searching motorists of color, often on the most minor of pretexts and without any reasonable grounds to suspect that the motorist is carrying evidence or contraband.
Such stops and searches, the latter often justified when the police allegedly obtain “voluntary” consent to the search, are not trivial, momentary intrusions. Instead, they often require the person whose car is being searched (and any passengers) to remain at the side of the road for a lengthy period, under total police control and in full public view, as police go through their vehicle. These encounters thus produce embarrassment, humiliation, anger and fear.
Orange County is not immune to this problem. Data collected by the state shows that the three main law enforcement agencies in our county – the Orange County Sheriff’s Office and the Carrboro and Chapel Hill police departments – have conducted “consent” searches of black and Hispanic motorists at a far higher rate than such searches of whites, and do so to a large extent after stops for minor, “regulatory” offenses. Since most people subject to such searches are innocent of any criminal activity – police do not need to rely on consent if they have reasonable grounds to believe that a car contains contraband or evidence – relatively few consent searches result in the discovery of contraband or evidence.
Unfortunately, the Supreme Court has done little to curb these practices, having held that pretextual police stops do not violate the Constitution if the officer can allege the observation of some minor infraction before the stop, even if there is strong evidence that the officer really stopped the driver for another, less-legitimate reason.
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Further, few of these searches are the product of a truly voluntary consent, since the court has also held that police do not have to advise a motorist of the right to refuse to consent to a search, and can search even if the person did not know of that right. Research has shown that few roadside “consents” are really voluntary, but instead are the product of the fear and uncertainty inevitable in such an encounter. Few, if stopped and surrounded by one or more uniformed, armed officers, who are allowed to maintain total control over driver and passengers for as long as the stop lasts, would feel free to deny a “request” for a search of the vehicle.
That the Supreme Court has held a practice constitutional does not make that practice fair or advisable, and any practice which contributes to the current state of community/police distrust is one which must be carefully evaluated to determine whether its usefulness outweighs the harm caused. Given the recent incidents of violence visited on people of color by police, it is especially important at this moment to assure all members of our community that they will not be unfairly targeted by police.
For these reasons, a number of police departments have instituted policies requiring officers to advise stopped drivers of their rights and to obtain written consent before relying on consent for a search. These policies perform vital functions. They assure that the person searched has been fully advised of all of his/her rights pertaining to the requested search. It also gives that person a clear indication that any decision about the search, including any decision to refuse consent, will be honored. Thus, any consent given is more likely to be the product of a truly voluntary decision. Requiring the use of written consent eliminates any dispute about whether consent was actually given, and also helps guarantee a record of all such encounters, thus allowing the departments and public a greater opportunity to review such records to ensure that the stops and searches are not occurring in a racially disproportionate manner.
It is gratifying to note that both the Carrboro and Chapel Hill police departments have instituted policies requiring the full advice of rights and a signed consent form before a consent search is carried out. This is a small, but meaningful action that demonstrates a commendable willingness to explore ways to reduce police/citizen friction. Unfortunately, the Orange County sheriff has not been willing to follow suit, but instead has only gone so far as to supply his officers with consent forms, relying on their discretion about whether to use such forms. We hope that this will change.
Richard Rosen is a member and wrote this on behalf of the Orange County Bias-Free Policing Coalition.