Recommended Best Practices
Recommendation 3.3: Ensure officers inform people of their rights to refuse or revoke consent and to document it.
Consent searches are particularly problematic because they unnecessarily and unproductively intrude on liberty and disproportionately affect communities of color. At the same time, they place officers in close contact with people who are not handcuffed or otherwise restrained, which puts them at risk. Communities have dealt with consent searches in a variety of ways. Some, such as the Baltimore Police Department (as the result of a DOJ investigation), require officers to tell people they have the right to refuse or revoke consent at any time after giving it.[i]Others, such as St. Paul Police Department in Minnesota, require officers to clearly state that people are free to leave (if and when they are).[ii]
The St. Paul Police Department’s consent search policy requires officers to read the following advisory:
- I would like to search you (or your vehicle).
- You should know that you have the right to refuse to allow me to search you and your vehicle.
- If you do grant me permission, you may stop the search at any time.
- If I find anything illegal, you will likely be arrested and prosecuted.
- Do you understand what I have told you?
- May I search you?
- May I search your vehicle?
Source: Saint Paul Police Dep’t, 409.08, Physical Searches, Saint Paul Police Department Manual (Oct. 2018).
Some departments require officers to document consent in writing,[iii]and others require officers to document the reason for the search.[iv]A few departments require officers to obtain supervisor approval before conducting consent searches.[v]These practices protect people from unwarranted intrusions and enable those who don’t know their rights to make more informed decisions.
In Austin, Texas, data indicated a pattern of stops with disparate racial effects. In response, the local police department implemented a policy[vi]requiring officers to obtain approval from their supervisors before conducting a consent search; to tell motorists of their right to refuse consent; and to document consent in written form.[vii]
Disparities also exist in consent searches. A study of consent searches in four states found that Black motorists are more likely to be consent-searched than White motorists, even though police find contraband less often when drivers are Black.[viii]
In sum, departments should adopt policies to avoid unnecessary searches, ensure that consent is truly voluntary, prevent coercion, and reduce disparate impacts on communities of color.
[i] Consent Decree, United States v. Police Dep’t of Baltimore City, No. 1:17-CV-00099-JKB, ¶¶ 56-57 (D. Md. Jan. 12, 2017), https://www.justice.gov/opa/file/925056/download.
[ii] ACLU of Northern Cal., Know Your Rights: Police Interactions, May 2015, https://www.aclunc.org/our-work/know-your-rights/your-rights-and-police; Saint Paul Police Dep’t, 409.08, Physical Searches, Saint Paul Police Department Manual (Oct. 2018), https://www.stpaul.gov/books/40908-physical-searches.
[iii] Chapel Hill Police Dep’t, Policy Manual: Fair and Impartial Policing (rev. Jul. 1, 2018) (“The Chapel Hill Police Department requires written documentation on any consent search that is conducted”), https://www.townofchapelhill.org/home/showdocument?id=28619;Consent Decree, United States v. Police Dep’t of Baltimore City, No. 1:17-CV-00099-JKB, ¶ 56 (D. Md. Jan. 12, 2017), https://www.justice.gov/opa/file/925056/download.
[iv] Agreement for the Sustainable Reform of the P.R. Police Dep’t, United States v. Commonwealth of P.R., No. 3:12-cv-02039-GAG (D.P.R. July 17, 2013), ¶ 60 (requiring officers of the Puerto Rico police department to document the reason for each stop and/or search), https://www.justice.gov/sites/default/files/crt/legacy/2013/07/17/prpd_agreement_7-17-13.pdf; Consent Decree, United States v. Police Dep’t of Baltimore City, No. 1:17-CV-00099-JKB, ¶ 46 (D. Md. Jan. 12, 2017), https://www.justice.gov/opa/file/925056/download(requiring officers to document the reason for each stop and the facts giving rise to probable cause for a search, if one was conducted).
[v] New Orleans Police Dep’t, New Orleans Police Department Operations Manual, Chapter 1.2.4: Title: Search and Seizure ¶ 20 (Jul. 10, 2016), https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/Chapter-1-2-4-Search-and-Seizure.pdf/.
[vi] Austin Police Dep’t, Austin Police Dep’t Policy Manual, 306.5 Consent 145-7 (Jul. 20, 2017), https://www.austintexas.gov/sites/default/files/files/Current_APD_Policy_Manual_2017-1.5_issued_7-20-2017.pdf.
[vii] Austin Police Dep’t, Austin Police Dep’t Policy Manual, 306.5 Consent 145-7 (Jul. 20, 2017), https://www.austintexas.gov/sites/default/files/files/Current_APD_Policy_Manual_2017-1.5_issued_7-20-2017.pdf.
[viii] Sharon LaFraniere & Andrew W. Lehren, The Disproportionate Risks of Driving While Black, N.Y. Times (Oct. 24, 2015), https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stops-driving-black.html.