On Monday night, a Lee County deputy prepared to write a driver a warning for not wearing a seat belt and having his windows tinted. But before he did, the deputy noticed Linton Harris’s hands shaking and beads of sweat forming on his forehead.
The deputy asked if could search the van.
Harris’s answer might come as a surprise, considering what happened next: He said yes. The deputy found more than 50 pounds of marijuana in the back, and Harris was promptly arrested on a felony trafficking charge.
Harris didn’t have to agree to a search, but his permission was all law enforcement needed. Courts have ruled that officers can search vehicles without probable cause as long as they have consent.
Often times, that consent is verbal, the answer to an innocuous enough question: Don’t mind if I take a look, do you?
But by next month, police in Dallas will be required to get written consent or have the consent recorded on their cars’ recording systems for those types of searches. Other jurisdictions in Texas, including Austin and Corpus Christi, have moved toward similar policies, as did the New York Police Department in 2008.
Both the Collier and Lee county sheriff’s offices said while obtaining written or recorded consent is ideal, it is not required by policy. Most consensual searches in Southwest Florida follow a person’s verbal consent, officials said.
The policy change in Dallas is in response to complaints of racial profiling by the department, according to The Dallas Morning News. But the police chief said it also will work in officers’ favor because it will give them better evidence in confirming that consent actually was given.
Although deputies in Collier County are not required to get written or recorded consent, the agency’s policy requires all patrol cars with a dashboard camera to record their traffic stops, Capt. Mark Baker said. Any interactions with the deputy, including a driver giving permission to search the car, would be audible from the deputy’s microphone worn on his or her uniform.
Baker said deputies typically would complete their traffic stop by giving a person a citation or warning before asking to search the car. If the driver doesn’t agree to be searched, Baker said it would be “inappropriate” to hold the person there any longer, according to current interpretation of the law.
“They either provide consent, or the worst they can say is no,” he said. “If they say no, then it’s over with.”
Lee County Sheriff Mike Scott said his agency would act differently if a driver did not want to be searched, having deputies request a K-9 if it can get to the scene quickly. Judges have ruled that officers may search a car if a trained dog alerts to the presence of drugs, as long as the driver is not held for longer than the time needed for the traffic stop.
“Usually if a person declines the request, if there’s any reason to suspect them having some contraband, we’ll bring a K-9,” Scott said.
But the sheriff also said deputies won’t ask to search most people stopped for traffic violations in the first place.
“The vast majority of traffic stops do not result in an officer saying, ‘Hey, can I search your car?’” he said.
One reason some major departments have switched to getting documented consent is to make it harder for defendants to backpedal in court and say they did not give the officer permission to be searched.
The case against a New York man suspected in a fatal shooting in 2002, for instance, was dropped after a judge did not believe the suspect consented to police searching his Bronx apartment, despite the officers’ insistence otherwise.
But Scott reasoned that a defendant could just as easily lie about his or her signature on a written consent form.
“Just because we have a signature at the bottom of a form, if a person wants to deny it two months down the road in court the person can say, ‘Well gee, I didn’t sign that. The officer must have forged my name,’” Scott said. “Written consent is not necessarily foolproof.”
Most deputies in Lee County don’t have the luxury of having their consent recorded Scott said the majority of his agency’s patrol cars are not equipped with dashboard cameras because of budgetary restrictions.
Deputies are encouraged to get people to fill out motor vehicle consent forms, although verbal consent “is also satisfactory and holds up 99.9 percent of the time,” Scott said.
Baker said Collier deputies also are advised to get written consent whenever possible. Although the agency’s policy does not require written or recorded consent, he said he didn’t see any disadvantage for a law enforcement agency that did require it.
“They’re being more restrictive than the law requires, which you can look at both ways,” Baker said. “Either way, I think it’s always a good idea to have as much documentation as possible.”