V. Basic Legal Foundations
The consent search is integral to the racial profiling controversy. The Fourth Amendment to the Constitution protects citizens from unreasonable search and seizure of their persons, property, and effects, but a large volume of case law continually refines the operational understanding of what constitutes an “unreasonable” search. As a result, a number of exceptions have been created, relaxing the general rule that the police must obtain a warrant before they search. Among them are searches incidental to a lawful arrest, exigent (emergency) circumstances, “hot pursuit,” searches at ports of entry into the country, inventory searches of impounded vehicles, “inevitable discovery,” and when the owner of a property gives voluntary consent to the search. Most challenges to consent searches center on whether the consent was in fact voluntary, or was influenced by coercive police tactics or deception.
American police have the power to detain citizens briefly, and to inquire of their actions, when the police have reasonable, articulable suspicion that something may be wrong. Most motor vehicle stops are supported by some violation of a motor vehicle law, and court cases allow for brief detention to make further inquiries, such as to identify passengers, if the “articulable suspicion” threshold is met.
Police have the power to arrest citizens—a lengthier and more intrusive detention—only when they have probable cause. Probable cause constitutes a set of facts and circumstances that would lead a reasonably prudent person to believe that a crime has been, is being, or is about to be committed. For certain crimes, including drug dealing, the courts have acknowledged that a “reasonably prudent and experienced police officer” can detect criminal activity that might escape the notice of a citizen. This recognition of training and experience underlies the police assertion that their “sixth sense” understanding of crime should be respected by the public as well.
Although citizens have more limited expectations of privacy in their vehicles than in their homes, police do not have the authority to search a car based upon whim or mere suspicion. The line that separates suspicion from probable cause is constantly tested in court proceedings. Though the racial profiling debate centers on searches for drugs, “contraband” includes other categories of items that are illegal to possess or transport: smuggled cigarettes, loaded firearms, explosives or other controlled ordnance, child pornography, even illegal aliens.
If the police have probable cause that a crime is being committed in their presence—such as the smell of marijuana, or the existence of drugs, paraphernalia, or weapons in plain sight—they can arrest the occupants of a car and conduct a full search incidental to that arrest. They may also impound the vehicle and conduct an inventory search of all contents, for the mutual protection of the vehicle owner and the officers. In the absence of those circumstances, however, a police officer may only request permission from the driver or owner to search the car for contraband.
Consent is a recognized exception to the Fourth Amendment warrant requirement: Police need not obtain a search warrant if the rightful owner of a property gives free and informed consent to the search. In the context of racial profiling, the central issue is whether any such consent is voluntary under the circumstances of the stop. Police assert that all adult citizens of the United States know that they have the right to decline to give such permission, and so all consent is voluntary. They offer no explanation of why so many people who are carrying contraband voluntarily consent to having their vehicle searched—a statement contrary to interest—except to note that “we don’t catch the smart ones.”
Opponents assert that the nature of the stop and the inherently coercive presence of the police effectively eviscerate the right of refusal. The implied threat of further detention, coupled with vague suggestions of “consequences” for refusal, coerce compliance. Opponents also point to instances where “probable cause” suddenly arose as soon as citizens declined to give consent; they consider such incidents further evidence that most “consent” claimed by the police is involuntary, a legal fiction.
Another objectionable category involves illegal police actions, searches conducted over the objections of the vehicle occupants. Though rare, such intrusions are insulated from sanction on two fronts. Searches that yield no evidence usually end with the release of the vehicle and driver. The ability of the aggrieved driver to seek redress is expensive, and often futile in the absence of independent evidence. When illegal searches are successful, the discovered contraband weights the case in favor of the police account of the incident (again in the absence of independent verification of the driver’s version of the event). As more and more police agencies adopt in-vehicle recording devices for vehicle stops, such incidents are fewer and farther between, but suspicion remains in the eyes of many citizens.