Consent-to-search bill takes aim at racial profiling

DENVER– Backed by a coalition of citizens’ rights groups, Democratic lawmakers Rep. Karen Middleton of Aurora and Sen. Pat Steadman of Denver introduced a bill that would require police to inform citizens of their right to refuse voluntary searches. The groups backing the bill believe it would limit traffic stops and searches that stem from discrimination.

traffic stop

Supporters of House Bill 1021packed the House Judiciary committee meeting Tuesday, where the bill passed on a party line vote after lengthy testimony. Witnesses took turns relating stories of intimidation and unlawful search procedures. 

Law enforcement representatives said the legislation would hamper the ability to prevent crime.

Others testified that the bill would actually increase efficiency by forcing police to find probable cause to conduct searches instead of wasting resources on voluntary consent, which often, they said, amounted essentially to fishing expeditions.

Organizations backing the bill include the Colorado Progressive Coalition, the ACLU, Colorado Immigrant Rights Coalition and the Colorado Latino Forum.

Opponents and supporters of the bill agreed it would raise awareness on all sides about the requirements of the nation’s Fourth Amendment, which guarantees the right to refuse unlawful search and seizure.

Joe Salazar, a civil rights attorney and the founding member of the Colorado Latino Forum, explained that he had been improperly treated in the past by police officers. He said he believed he had been the victim of racial profiling.

“The Supreme Court has interpreted the Fourth Amendment to mean that, where an officer does not have probable cause or suspicion– where there is no exigent circumstances to believe that a crime is being committed– the officer is simply not justified in searching homes, vehicles or belongings unless they ask,” said Salazar. “That is what House Bill 1201 does. It provides these individuals the right to say no. Officers have to ask: ‘I have no other reason to search your person but will you please allow me to search you.’ “

County sheriffs and the District Attorneys Association were adamant that the bill would create increased litigation make it more difficult to gain consent from suspects. They said the bill would increase the risk police officers experience during routine stops.

Detractors also claimed the bill would give the verbal exchange over consent to search too great of prominence in considering cases arising from traffic stops.

Pete Holzinger, president of the Districts Attorneys Council, said the bill would impede his ability to fight drug trafficking in Mesa County and said that he unapoligetically used what he called “meth-dealer profiling” in fighting crime.

“We do not engage in racial profiling,” he said. “We do engage in meth-dealer profiling, and I will not apologize for doing that.”

Holzinger said that much of their success in fighting the meth industry comes from traffic stops.

Mark Silverstein, legal director for the ACLU, said the bill did not interfere with the ability of the police to conduct those kinds of searches. He pointed out that law enforcement had raised similar concerns when Miranda rights were first discussed decades ago. He also said this bill would not give informed consent some intrusive priority of place. Judges will be asked to look at search consent as a part of the whole, the same way that they do now. 

Holzinger said that he didn’t believe that strengthening informed consent procedures would stop racial profiling.

“Voluntary consent has nothing to do with racial profiling,” he said.

Silverstein disagreed and pointed to studies that show that the point in a traffic stop where a police officer asks if they can conduct a search are most dramatically disparate where ethnicity comes into play. He said consent searches need to be regulated the way probable cause searches are regulated.

“[Law enforcement officials] need to be armed with facts that would convince a person that there is a chance that contraband will be found,” Silverstein said. “To ask ‘Can I look in the trunk?’ they need no facts. They need no reasonable suspicion. They need only a hunch, a whim is good enough. And whenever you have total discretion that is unguided by any standards, that is when impermissible factors that have plagued police community relations [come into play] — race, color, ethnicity.”

Silverstein explained that most people do not know that they have a constitutional right to say “No officer I do not want you to search my car.” He  recalled one of is own law classes where over half the students were unaware of that fact.  

A number of other states, including New Jersey, Minnesota, Rhode Island,  California and Arizona have similar regulations on voluntary consent searches, some considerably more restrictive.

Advocates for the bill at the hearing said the new law would compel police officers to conduct more effective searches that would bring about better results.

Rep. Middleton said she was pleased the bill was moving forward.

“We worked collaboratively with both the coalition and members of law enforcement to try and reach some agreement… I’ve had an open door about this, and I have worked with all of the stake holders to make it a good bill.”

Art Way, civil rights organizer for the Colorado Progressive Coalition who testified in favor of the bill, said he felt it would improve relations between law enforcement and the community of color and “provide uniformity for police in an area where there has been no regulation.”

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