Unjustified searches by law enforcement result in unnecessary arrests for low level non-violent offenses—such as marijuana possession or loitering for the purposes of prostitution based on possession of condoms. Additionally, there are huge racial disparities in who is exposed to these searches. For instance in Chicago, Black and Latina/o motorists in 2013 were four times more likely than white motorists to have their vehicles searched during traffic stops, even though officers found contraband in the vehicles of white motorists twice as often. In North Carolina Black motorists were twice as likely as white motorists to be searched during a stop.
Often people are misled into “consenting.” Officers will order (or “ask”) people to empty their pockets or open up their bags, without telling them that they have the right to refuse. These searches lead to negative interactions with police and unnecessarily funnel community members through the criminal justice system. Arrests—resulting from unlawful or coercive stop-and-frisk practices—and the convictions or pleas that often follow can have devastating consequences, including the loss of jobs and hiring prospects, inability to get student loans, housing evictions, and lengthy and costly court procedures. Consent to search legislation can mitigate the harms of these searches and reduce people’s exposure to incarceration by ensuring that those stopped by police are made aware that they have the right to refuse a search—similar to how police are required to tell those under arrest that they have the right to remain silent.
Across the country people are searched without any legal justification because they supposedly “consented” to a search. This practice results in thousands of unnecessary arrests and countless intrusive encounters between communities and law enforcement. The practice is also disproportionately used against Black and Brown community members. In recognition of the racially discriminatory impact and the devastating consequences of searches resulting from “consent,” a number of states have passed legislation that require law enforcement to get written or recorded proof that they advised community members of their right to refuse a search. Key to successful advocacy campaigns aimed at ending “consent” searches is the availability of data showing racial disparities in searches and the reality that those profiled—mostly Black and Latina/o community members—are often less likely than others to have contraband. The problem of consensual searches was highlighted by the Presidential’ s Task Force on 21st Century Policing, which recommended that law enforcement be required to obtain written or recorded proof that they advised those searched of their right to refuse.
Consent to search legislation, which requires police to make people aware of their right to refuse a search and document it, can normally be passed at the local or state level. It can also be implemented administratively.
- Consent to search legislation should include a requirement that police officers obtain and document proof of voluntary and informed consent in either written or video or audio taped form. It should also require officers to inform individuals that there are no negative consequences to refusing a search request.
- Consent to search legislation should apply to both vehicle and pedestrian stops.
- Consent to search legislation can also include the requirement of a consent form including a tear off sheet with the officer’s name, rank, command and a phone number for how those stopped can file complaints. Research indicates that when officers are forced to share identifying information with those they stop they are less likely to engage in abusive or disrespectful behavior.
- One key to effective implementation of consent to search legislation is changing the training and patrol guide of local police departments. Police departments that offer training about when a search is lawful and discourage officers from coercing residents into consenting to searches, by making them aware of their rights, are less likely to engage in problematic consent searches.
- Consent to search legislation should prohibit departments from assigning gender based on anatomical features and require that officers address, interact with, search and place individuals in a manner that is consistent with their gender identity and expression.
- Effective consent to search legislation should mandate meaningful consent including a provision accommodating non-English speakers and people with cognitive and other relevant disabilities.
- Effective consent to search legislation should include consequences for officers and departments who do not obtain objective proof of consent. One possibility is including language that makes clear that if consent is not obtained, when legally required, any evidence found in the search cannot be used in a criminal proceeding or that there will be a presumption that the search was unconstitutional—making it difficult for prosecutors to use the evidence.
- Effective legislation may also require that the officer articulate the reason they asked to search the person. Some jurisdictions, such as Fayetteville, North Carolina, require a justification for the consent search and have banned the use of justifications that correlate with race such as: “nervousness”, “presence in a high crime area” or “prior criminal record.”
- Even with safeguards, consensual searches are often abused and have a racially discriminatory impact. If possible police should be banned from conducting searches based on consent and should be limited to conducting searches based on probable cause, a warrant or one of the legally established exceptions to a warrant.