Durham could follow Fayetteville in requiring written consent to search

09/03/2014 6:48 PM

09/03/2014 6:58 PM

Durham would be the second major city in North Carolina to require police officers to get written permission to search vehicles during traffic stops, if the city administration heeds Mayor Bill Bell’s wishes.

Bell said at Monday night’s City Council meeting that requiring written consent is a step toward “repairing, rebuilding a trusting relationship between the Police Department and all segments of the Durham community.”

The council is scheduled to discuss consent forms, along with City Manager Tom Bonfield’s other recommendations for addressing alleged racial bias by police, at its 1 p.m. work session Thursday.

Fayetteville adopted a written-consent policy in 2012 under circumstances similar to those in Durham: a racial disparity in numbers of black and white motorists’ vehicles searched that led to allegations of racial profiling.

Asheville, Charlotte, Greensboro, Wilmington and Winston-Salem also have written consent forms but do not require that officers use them.

Fred Baggett, legislative counsel for the N.C. Association of Police Chiefs, said the group doesn’t like to inject itself in local issues, but the U.S. Supreme Court has affirmed that “a verbal consent is consent and it’s totally legal.”

Whether to mandate written consent is “a decision of that (city) council and they can govern the way they feel is best for their community,” Baggett said.

Required written consent was one of 34 measures the Durham Human Relations Commission recommended, after a six-month series of hearings led it to conclude that racial bias and profiling were “present in Durham Police Department practices.”

In responding to the commission’s report in August, Bonfield recommended that officers be encouraged to use written forms, but left the decision to their discretion, citing concerns for “officer safety and situational control.”

Bell, though, said he was not convinced “by any argument that requiring a written consent for searching a vehicle … would negatively impact operations or place any extra burden on an officer.”

“The issue of racial profiling remains a concern,” Bell said. “The Durham Police Department says that in carrying out their duties, they do not perform racial profiling. The raw statistics though … in my opinion don’t bear that out.”

According to the state Department of Justice’s Traffic Stop Statistics website ( bit.ly/1h4Uqlw), of 10,353 traffic-stop searches conducted by Durham police from Sept. 1, 2008, through July 31, 2013, 8,251, or 79.7 percent, involved black individuals. Whites were involved in 2,055 searches, or 19.8 percent.

The Human Relations Commission and a number of local organizations, including the Southern Institute for Social Justice, Durham People’s Alliance and the Durham Committee on the Affairs of Black People, contend that requiring written consents would reduce the disparity.

Officers are empowered to conduct searches with or without permission if they have probable cause or see evidence of criminal activity inside a stopped vehicle. Otherwise, searches require permission of the vehicle’s operator.

Advocates for written consent contend that minority drivers may be easily coerced into giving verbal permission, or think they have no choice. Written forms are an affirmation they have a right to refuse, and ensure that consent is actually given before a search is done. They also contend that they do not hamper effective policing.

“Officers got used to (written consents), and it’s just become part of their daily patrol now,” said Fayetteville police spokesman Lt. Todd Joyce.

Since written consents have been required, he said, the number of consent searches and of traffic stops has gone down, but the number of probable-cause searches has risen. Before written consents were required, Joyce said, officers may have routinely asked for verbal consent even when they had probable cause.


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