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The there is no consent to search it is a fiction

“Consent “is a threadbare fiction which should be eliminated from highway or pedestrian searches. No traveler with a choice wants to be detained for the minutes or hours that searches consume. No one wants the humiliation and spectacle that attaches to the process while he or she sits on the hood of a car or the guardrail as police strangers comb through their vehicle and their most intimate possessions. Every request for a highway search carries the implied threat that if the traveler does not accede to the officer’s wishes in this most vulnerable and isolated situation, he or she could potentially be the object of the officer’s wrath, be it more tickets, an elongated stop, or worse.

The reality of searches by the side of the road, especially those rationalized under the doctrine of consent, has led to an array of abuses that implicate the integrity of our law enforcement and judicial systems. Sadly, these perceptions are not fantasy. Consent searches have become part and parcel of a bundle of “techniques” and practices that have perpetuated racial profiling and other unacceptable invasions of privacy and dignity. Armed with stereotypical training, enforcement personnel have essentially used the traffic code as a pretext to stop and attempt to search “any car [an officer] wants.” State v. Soto, 324 N.J. Super. 66, 80 (Law Div. 1996), appeal withdrawn April 20, 1999.

Too often, officers work backwards, deciding first who they would like to search and then perfecting the stop from the almost unlimited supply of violators on the highways. The myriad of traffic regulations allow that almost anyone is eligible to be stopped. Consciously or unconsciously, biases and stereotypes are inevitable. Ridding ourselves of the notion of the consent search would be an important step to check biased law enforcement.

It is now beyond reasonable debate in New Jersey and the nation, as has been admitted that the number and patten of “consent” searches, are a major indicator of the presence of racial profiling. As a society, we should dwell upon the overarching significance of this last fact. If consent searches alone are an indicator of racial profiling, then the very notion of consent in these situations is highly suspect. When the Attorney General of a state the size population- wise and significance of New Jersey must concede that “consent” searches, are a major indicator of the presence of racial profiling, we are assured that “consent” is a cynical fiction the use of which demeans our courts, law enforcement and society.

The sad fact of profiling and its symbiotic relationship to consent searches, is a fact in New Jersey and elsewhere. But, to date, examination of profiling and its relationship to consent searches has focused almost exclusively on law enforcement. Profiling has also survived because our courts have fallen away from a healthy skepticism of supposed consent searches, and in the process encouraged their use that much more.

Too often, courts operate with blinders on. When faced with a suppression motion, a judge sees sitting before the court a defendant nabbed with contraband. Courts are rarely reminded of, and usually oblivious to, the fact that dozens of innocent people have been stopped, searched, endangered, and humiliated in unproductive “consent” searches, before one offender is discovered. Credible anecdotal analyses of searches, has shown as little as one in thirty, accuracy rates. United States v. McKines, 933 f.2d 1412, 1436 (8th Cir. 1991) (dissent by McGill, J.) (citations omitted). Consent search suppression hearings require the court to credit a police officer’s testimonial recitation of a set of facts that often belies common sense. With their blinders on, through the doctrine of consent searches, our courts have all too often served the function of an institution that sanctifies practices responsible for wide-spread damage to the lives of thousands of innocent travelers.

Ironically, Courts were considerably more skeptical about the concept of a “consent” search decades ago than they are now. For example, in Higgins v. United States, now over years old, the Court of Appeals for the District of Columbia Circuit stated, “Words or acts that would show consent in some circumstances do not show it in others. ‘Non-resistance to the orders or suggestions of the police is not infrequent...; True consent, free of fear or pressure, is not so readily to be found.’” Higgins v. United States, 209 F.2nd 819, 820 (D.C. Cir. 1954), [citing Judd v. United States, 190 F.2nd 649, 651]. To be voluntary, any consent cannot be the result of duress or coercion, expressed or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 (1975). [Emphasis added].

Law enforcement representatives complain that abolition of the doctrine of consent, even for highway travelers, would deprive law enforcement of a “useful tool.” Yet, a dangerous, often abused practice, which is also at the heart of profiling, serves no use in a free society. The directive and goal for law enforcement in a free society has never been and should not be the power to use any tool that it deems useful.

Too often, such “useful tools” have been thoroughly exposed as instruments of potential abuse. Law enforcement should have only the authority to use those tools that do not demean the rights of citizens and the institutions that purportedly guard citizens’ rights. Any debate over consent searches should not address the “useful tool” concept. It must center on whether or not the value of consent searches is outweighed by the harm they wreak and whether in the light of painful, recent experiences, those tools comport with our concept of ordered liberty and human dignity. Consent searches, all too often, are rationalizations that formalize an officer’s hunch, as opposed to the more objective requirements of probable cause and reasonable suspicion.

Were consent searches law enforcement would continue to possess the authority to act on numerous other bases, including probable cause, reasonable suspicion and search incident to arrest. Directing police to act on the basis of these standards would be a major step forward in the quest to eliminate the widespread abuses associated with profiling and other citizen-law enforcement encounter problems. It would provide our courts with a more objective basis for balancing the needs of law enforcement against the right of citizens to their privacy, dignity, and fundamental right to travel. Abolition of purported consent searches would remove the institutional pressures on courts to credit police testimony against that of citizens on the rationalization that officers have no motive to stray from candor.

Notably, the New Jersey State Police, over a decade ago, decreed that consent searches should be limited only to those instances where an officer had “reasonable suspicion” that a consent search would net contraband. New Jersey State Police Standing Operating Procedure F-55. See also State v. Carty, 332 N.J. Super. 200 (App. Div. 2000). This recognition of the potential for abuse inherent in purported consent searches speaks volumes. Yet, after a decade of analysis, through profiling challenges and related civil rights litigation, it is clear that this standard is not and cannot be effectively enforced. The incentive to extract a consent search, under the inherently coercive circumstances of a highway stop, remains. A decade of analysis and history shows that consent searches are an oxymoron under any standard. Instead, it is time that we refocus on the paramount concern of a free and civilized society to assure travelers that they can safely travel with dignity and without fear of a government which exists supposedly to guarantee their safety and dignity.
Written by Attorney Jason Charles Matey. 

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