Orange County deputies will be expected, to a point, to get written consent from drivers before conducting a search, Sheriff Charles Blackwood says.
“I will require officers when feasible to get the form that you’ve got in your hands signed, and it will become what I consider to be required,” Blackwood told the Orange County Board of Commissioners last week.
“I’m not going to put out a policy that you must do it,” he added. “If it’s detrimental to that case, and the officer’s got to have it, I see them substituting probable cause” as a reason to search, in which case consent is not required. In probable-cause searches, an officer has reason to believe a crime has been committed.
Existing state and federal laws say consent can be given orally, in writing or “by other means,” such as stepping aside to allow a search. Law enforcement is not required to let drivers know they have a right to say no.
Written consent forms are a growing trend, Commissioner Mark Dorosin said. Carrboro, Chapel Hill, Durham and other cities use them, although officers can search without consent if they have probable cause or are arresting someone.
Written consent helps to build trust, Dorosin said, downplaying concerns it could hinder law enforcement’s job.
“The idea that, well, if you get people to sign consent they might not let you search, to me, that was the argument that was made when they introduced the Miranda warning, that if you tell people that they don’t have to talk, they’re not going to confess, and I don’t think it’s had the sky has fallen as some people predicted,” he said.
Commissioner Barry Jacobs said the county wants to respect the sheriff’s prerogative.
“We’re basically saying that we’re all on notice, that we have a concern, that we don’t want to abuse search and seizure prerogatives by law enforcement,” Jacobs said. “The sheriff is saying he is going to try and make that his practice, and we’re saying that we’re monitoring how that’s working and we’ll come back.”
Blackwood’s office also is working with UNC professor Frank Baumgartner and social justice advocates to analyze traffic stop data for the last few years. Baumgartner was part of a 2014 study on statewide police bias that found black and Hispanic drivers were being stopped at higher rates than white drivers.
The work, so far, has found there were 3,488 total stops from 2012 to 2014, Sheriff’s Office legal adviser Jennifer Galassi said. Roughly 21.9 percent were white females, 9.5 percent were black females, 43.8 percent were white males and 18.1 percent were black males, she said.
Since Blackwood took office 20 months ago, there have been 3,111 total stops, she said. Roughly 25.5 percent were white females, 11.9 percent were black females, 41.5 percent were white males, and 16.6 percent were black males.
Female drivers have only a slight chance of being searched, she said, while male drivers have a 2.4 percent chance of being searched. The potential for being searched is slightly higher for black males than white males, she said.
The Southern Coalition for Social justice has collected data about law enforcement known traffic stops in North Carolina since 2002. Find more information at opendatapolicingnc.com.