ACLU of Texas Criticizes Continued Use of Race, Over-Use of Consent Searches in Traffic Stops

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Sweeping New Report Documents Problems in Use of Consent Searches

AUSTIN, TX – A report released today by the Texas Criminal Justice Coalition found that many state law enforcement agencies continue to use consent searches inconsistently and inappropriately, and that consent searches rarely uncover wrongdoing and are more likely to target minorities.

A consent search occurs when an officer thinks a motorist may be involved in some criminal activity but has no true evidence to back up the feeling. The officer can request that the motorist allow a search, thus granting consent. The motorist is within his or her rights to refuse the search.

In addition to concerns about racial profiling, the American Civil Liberties Union of Texas, a member of the criminal justice coalition, said the consent search practice raises basic constitutional problems. “The Fourth Amendment guarantees the right to be free from unreasonable searches,” said Will Harrell, Executive Director of the ACLU of Texas. “Law enforcement shouldn’t be allowed to force people into giving up their rights at traffic stops through trickery or intimidation. The practice violates fundamental principles of protected liberty,”

The report, Searching for Consent: An Analysis of Racial Profiling in Texas, found that approximately two out of three departments still use race as a factor in conducting consent searches, and African Americans and Latinos continue to be searched more frequently than whites.

Report data indicate that 2.3 percent of all drivers (103,705) statewide were subjected to consent searches at traffic stops in 2004. The report also found that some departments conducted consent searches of all races much more frequently than the statewide average. In addition, departments that conducted consent searches of minorities at higher rates also tended to consent-search whites more often.

“We hope this report can be used as a tool by law enforcement across the state to take a look at their disparities and make policy changes that will improve the way they conduct searches and protect the public,” said Ana Yáñez-Correa, Executive Director of the Texas Criminal Justice Coalition, which authored the report. “Consent searches divert resources from crime-fighting tasks that improve public safety. Our officers’ time and energy should be spent on productive techniques, not on a hit-or-miss tactic that is diminishing the community’s faith in law enforcement.”

The Texas Criminal Justice Coalition’s report did reveal some encouraging news. From 2003 to 2004, about half of departments reported that they decreased the size of the racial disparity in consent searches they conducted, according to their own self-reported data.

“If the law is colorblind, then race-based searches need to go,” said Mary Ramos, State Deputy Director for the League of United Latin American Citizens of Texas. “This report shows that Texas still has miles to go before all law enforcement agencies start looking for what’s in the trunk and not at the color of the person behind the wheel.”

To address the problems with consent searches and better assist law enforcement in implementing policies that serve the public’s best interests, the report makes several recommendations to the Texas Legislature, including:

• Texas should adopt the search policy used by New Jersey, Minnesota, Rhode Island, and the California Highway Patrol, which stipulates that a “legal basis” be required for conducting searches
• Law enforcement agencies should be required to collect and report some additional data elements that will aid them in identifying and implementing new and effective practices consistent with their mission to protect and serve all Texans.

“The sad truth for people of color in Texas is that even if you are as innocent as the driven snow, the color of your skin dictates that you are much more likely to be stopped and then searched by police,” said Gary Bledsoe, President of the Texas State Conference of branches of the National Association for the Advancement of Colored People. “However, the positive side is that there is now empirical proof of this, so hopefully Texas lawmakers will decide that people of color should be treated with dignity like all other citizens, and actually pass some laws to curb this behavior.”

This year’s report is the third by the Texas Criminal Justice Coalition on behalf of the Campaign to End Racial Profiling, members of which include the Texas State Conference of branches of the National Association for the Advancement of Colored People, League of United Latin American Citizens of Texas, ACLU of Texas, and the Texas Criminal Justice Coalition. The campaign was instrumental in passing legislation against racial profiling in 2001, making racial profiling data available for the first time in Texas.

The entire report, including agency breakdowns, is online, at: www.criminaljusticecoalition.org/end_racial_profiling

For information on the Texas Criminal Justice Coalition’s work to end racial profiling, go to www.criminaljusticecoalition.org/end_racial_profiling