Urge Greensboro City Council to Mandate Written Consent Policy for Police Searches
The Greensboro City Council is currently considering whether to join other cities across the state and country and require a policy that police obtain written consent before conducting a search that isn’t supported by probable cause. Under a written consent policy, police would verbally inform citizens that they have the right to refuse to consent to a search and if they choose to waive that right, the police must obtain that consent in writing. Click here to read the Triad City Beat article that summarizes the history of this issue in Greensboro. Watch the video below or keep reading to learn more about how written consent can help reduce racial disparity in consent searches. Scroll further down and learn how you can take action and get involved.
What is a consent search?
The 4th Amendment of the United States Constitution protects citizens from unreasonable searches and seizures. As a general rule, a search of someone’s person, vehicle, or home requires a warrant that is issued by a neutral magistrate after a showing of probable cause. There are a few exceptions to this requirement. One of them is the “automobile exception” and it applies to vehicle stops. Under this exception, a warrant is not required to search a vehicle as long as there is probable cause that evidence of a crime will be located in the vehicle. A warrant isn’t required because of the “fleeting nature” of vehicles and reduced expectation of privacy on the road. Another exception to the warrant requirement is called a consent search. Police may search you without a warrant if you consent to the search. Here is the most important part of this exception: police are not required to tell you that you have the right to refuse consent or that you can narrow the scope of that search or withdraw consent at any time.
How is a written consent search different?
Under a written consent procedure, police must inform you that you have the right to refuse consent and that if you are waiving that right, you must do so in writing.
Why is written consent a good thing?
The great thing about written consent is that it is a good thing for individuals, police, and the community as a whole. It is good for individuals because people are learning their rights from police officers and that helps establish trust. People exercising their rights is a fundamentally good thing.
It is good for police because at trial, a consent search is only valid if the consent was given freely and voluntarily. We spend hours debating in suppression motions whether consent was given voluntarily in court. These judicial resources can be saved if we have a clear answer to this question on paper. It will make it easier for police and prosecutors to show that consent was given freely if there is a paper trail.
Finally, it is good for the community because consent searches, like many things in the criminal justice system, are subject to implicit racial bias because discretion is involved when it comes to choosing which motorists get asked. There are some very concerning numbers about the racial disparity in Greensboro over who gets stopped and asked to have their cars searched. Click here to see the date compiled on the Open Data Policing by the Southern Coalition for Social Justice using the Greensboro Police Department’s own data reported to the North Carolina Department of Justice. Despite contraband hits being roughly similar across the racial spectrum, black drivers are searched at more than double the rate of white drivers. By having more people exercise their right to refuse to consent, we can lower the number of overall black drivers searched. By creating more ways to collect data, we can get a more accurate depiction of how widespread the racial gap actually is and take action to remedy it.
That doesn’t seem so controversial. Why don’t we have that?
It shouldn’t be controversial. This is a good thing for everyone. I will address two common concerns that I have heard recently, however.
First, some people have suggested that this will hamper law enforcement and slow things down. Several factors outweigh this concern, however. For starters, going over one additional document is not particularly time-consuming. What is very time-consuming, is drafting a lengthy motion to suppress and arguing it in court with witnesses under oath because the defendant claims that they never verbally gave consent freely or voluntarily. Having a document can save a lot of time later. Second, it doesn’t prevent police from conducting any searches of a vehicle if they have probable cause. We are only preventing searches that are essentially fishing expeditions with no basis. Finally, even to the extent that it slows down the process momentarily, it should take work to search someone without probable cause. It isn’t a bad thing for us to make extra sure that people are waiving their fundamental rights.
Another major criticism that has been lodged is that in jurisdictions where they have switched to a written consent search procedure, the number of searches based on probable cause will just go up. This is actually correct, but not for the reasons that people think. Many officers who have developed probable cause will ask for consent to search anyway because it gives them one more reason why the search was lawful in court later. Just because officers fall back on probable cause in some cases doesn’t mean that it is pointless to have a written consent procedure. The overall number of unlawful searches will go down and that is the goal. Furthermore, if officers are falling back on probable cause and they don’t actually have it, than can be sorted out in court later ad we can keep better track of which officers are routinely violating people’s rights.
Alright, I’m in. How can I help?
You can support local organizations that are doing this work on the ground such as Guilford for All.
Get involved with or attend a virtual meeting with the Greensboro Criminal Justice Advisory Commission.
Contact the Greensboro City Council ad tell them you support a written consent policy. Their contact information is available here.
Are you an attorney practicing in Greensboro? Sign the joint letter to the Greensboro City Council by clicking here.