212-549-2500 / www.aclu.org/profiling
COMPLAINT HOTLINE1-877-6-PROFILE or online
Consent Search Bans "'Consent' that is the product of official intimidation or harassment is not consent at all."
Florida v. Bostick, 501 U.S. 429, 111S.Ct.2382(1991)
Four jurisdictions to date (4/1/06) have banned suspicionless/consent searches. The California Highway
Patrol (CHP) recently extended its ban on consent searches as part of a federal class action lawsuit the ACLU filed on
behalf of the NAACP, the League of United Latin American Citizens (LULAC), and three victims of racial profiling,
challenging the CHP’s discriminatory drug interdiction program, then known as Operation Pipeline.1 The first
moratorium was issued in April 2001 following the data obtained in a class action suit against CHP that showed that
respectively Latinos and African Americans were three times and twice as likely to be searched as whites in some
divisions.
In March 2002, the New Jersey Supreme Court banned consent searches on the basis of Article I, paragraph 7
of the state constitution.2 Before this decision, police in the state were required to get written consent, including:
I have knowingly and voluntarily given my consent to the search described above.
I have been advised by [the investigating officer] and fully understand that I have the right to refuse giving my consent to search.
I have been further advised that I may withdraw my consent at any time during the search.
Also, in May 2003 the Minnesota Supreme Court did likewise, holding that police expansion of a routine
traffic stop beyond the underlying justification for the stop violates Article I, Section 10, of its constitution.3 Under
this decision, to search, there must be reasonable suspicion of criminal activity beyond the traffic offense, and
evidence seized as a result of a consent search in thee absence of such suspicion would be suppressed.
The Minnesota Supreme Court had previously ruled that police were not allowed to bring in drug-sniffing
dogs to search a vehicle after a traffic stop unless there is "reasonable, articulable suspicion of drug-related criminal
activity".4 The decision in Fort expanded the ban beyond drug-dog searches.
In July 2004 Rhode Island passed a consent search ban when the state re-enacted its data collection law.5
This resulted from negotiations between the civil rights/liberties/community groups and police, who were at a distinct
disadvantage due to the 2-year data study that showed that a majority of departments had racial disparities for which
no other explanation could be found. The law also requires reasonable suspicion for a drug-sniffing dog search during
a traffic stop.
31-21.2-5. Law enforcement practices. - - (a) Unless there exists reasonable suspicion or probable cause
of criminal activity, no motor vehicle stopped for a traffic violation shall be detained beyond the time
needed to address the violation. Nothing contained herein shall prohibit the detention of a motor vehicle for
a reasonable period of time for the arrival of a canine unit or subsequent criminal investigation, if there is
reasonable suspicion or probable cause of criminal activity.
(b) No operator or owner-passenger of a motor vehicle shall be requested to consent to a search by a law
enforcement officer of his or her motor vehicle which is stopped solely for a traffic violation, unless there
exists reasonable suspicion or probable cause of criminal activity
1
Rodriguez v. California Highway Patrol, 89 F. Supp. 2d 1131 (N.D. Cal. 2000)
State v. Carty, 170 N.J. 632, 790 A.2d 903(2002); http://lawlibrary.rutgers.edu/courts/supreme/a-28-00.opn.html
3 Minnesota v. Mustafaa Naji Fort, 660 N.W.2d 415(Minn. 2003) http://www.lawlibrary.state.mn.us/archive/supct/0305/ OP011732-0501.htm
4 Minnesota v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002); http://www.lawlibrary.state.mn.us/archive/ supct/0206/ c2001137 .htm
5 Title 31, General Laws entitled "Motor and Other Vehicles,"31-21.2-5, http://www.rilin.state.ri.us/PublicLaws/law04/law04356.htm
2
Revised 4/06