‘Consent’ Searches Aren’t Doing Anything To Reduce Crime

A lot of police work in the United States is just playing the odds. Roll the dice enough times, and you’re sure to come up a winner now and then. The odds really don’t matter because law enforcement agencies are playing with house money, so being wrong time and time again will never bankrupt them.

Most of this guesswork masquerading as investigative work begins with pretextual stops. Come up with a reason — any reason — to pull someone over and let the games begin. Privacy rights are lower when there’s a car on a public road involved. Probable cause can be obtained by bringing a dog into the mix. Literally anything a driver does or doesn’t do when interacting with an officer can be considered suspicion reasonable enough to continue detaining them.

Even with the guidelines established by the Rodriguez decision (a stop is over once the objective has been completed [ticket, warning, etc.]), little has changed in the way this part of police business is handled. All these options work together to create more opportunities for warrantless searches. And even if all these fail, there’s still a chance a cop can talk someone into “consenting” to a search, something that can be accomplished by insinuating that refusing will result in an arrest or the loss of their car or both.

So, there are plenty of tools available for cops to use to separate people from their rights. And if “consent” is obtained (even if it’s implied or directly coerced), no harm, no foul… at least according to all cops and most courts.

But what are we gaining from this reliance on “consent?” It certainly can’t be an increased respect for Fourth Amendment rights. And it certainly isn’t any measurable gains on the crime-fighting front, as this op-ed for Scientific American points out.

Typically, if law enforcement wants to search you or your property in the U.S., they will need either a warrant or probable cause—at least some evidence of wrongdoing. Those things can be hard to come by, limiting the ability of the police to stop and search people at will. But there is a loophole. What if they simply ask for your permission? This is known as a “consent” search because its constitutionality derives from an individual agreeing to be searched rather than any evidence of criminal activity. This common type of police search is tailor-made to circumvent our Fourth Amendment rights to privacy and is so ineffective at locating criminals that its contributions to public safety—insofar as we can measure the concept—appear nonexistent.

The writers of this editorial aren’t just making claims without facts in evidence. Derek Epp is one of the authors of Suspect Citizens: What 20 Million Traffic Stops Teach Us About Policing and Race. Hannah Walker is the author of Mobilized by Injustice, a book that examines the civil rights movement’s intersection with the anti-police violence movement that became even more intertwined following recent high-profile killings of unarmed black men by police officers. Marcel Roman is a post-doctorate fellow at Harvard University whose work focuses on racial and ethnic politics. Megan Roman is a Poly-Sci PhD student.

This isn’t a random group of keyboard warriors trying to convince you cops are bad. That’s not even the point they’re making. They’re simply pointing out the fact that police work that combines a quantity-over-quality approach with a casual disregard for constitutional rights doesn’t make the public safer. And, in an era where law enforcement officials constantly complain that they’re unable to hire or retain officers, it makes very little sense to prioritize outdated law enforcement tactics.

And outdated they are. Pressuring people to consent to searches is relatively new in terms of the overall history of law enforcement. But its origin dates back to the days when crime rates were at historical highs and everyone from mayors to police commissioners to congressional reps to sitting presidents thought the best solution would just be more of the same stuff that didn’t work before, only harder and faster.

Consent searches rose to prominence in the 1980s and 1990s during what has come to be known as America’s tough-on-crime period. 

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A popular police academy textbook in the 1990s devoted chapters to discretionary searches and the art of getting to yes, in which aspiring officers are told: “Gaining his [the driver’s] cooperation requires that you extend the play-dumb guise that you’ve used already.… You need to decide, finally, whether you want to search the suspect’s vehicle. If you do, you now need to position him emotionally to grant you his permission…..

This sort of thing has always worked out well for law enforcement. While many people have a passing familiarity with their rights, it’s not always obvious when you’re surrounded by cops who are all suggesting the best thing to do would be to waive those rights. Very few people — even if they fully understand their rights — are willing to terminate encounters with officers because, even in situations where drivers have all the rights, the cops still have all the power. Leaving before an officer says you can (even if they’re in the wrong) can lead to additional criminal charges (at best) or severe injury or death (at worst.)

So, the odds will always favor law enforcement. But even with this advantage, millions of stops aren’t really putting a dent in crime.

Using police records of over 900,000 searches, we find that consent searches are about 30 percent less likely to locate contraband than searches based on probable cause. 

Sure, if you stop enough people, you’re bound to stumble upon evidence of criminal activity. And those are the only searches cops want to talk about — the ones that lead to criminal charges (or a bunch of cash). The millions of stops where nothing is found are swept under the rug. Law enforcement officers don’t bother keeping a tally of wins and losses because they know how often they come out on the losing side. People who are hassled for minutes or hours before being cut loose rarely sue. We usually only hear about unlawfully extended searches and/or non-consensual searches framed as “consensual” when contraband is discovered and the evidence is being challenged in court.

This reality obscures the overall futility of police fishing expeditions and officers’ over-reliance on consensual searches. Almost everything related to this stems from criminal cases, which makes it appear as though cops have a preternatural ability to sniff out criminals who’ve done nothing more than, say, cross a fog line, before the traffic stop is initiated.

But that’s not what’s happening. Millions of traffic stops occur every year. Only a small percentage uncover criminal activity. This isn’t smart policing. It’s brute forcing busts, banging on as many cars and drivers as possible in hopes of hitting the jackpot.

This success rate isn’t acceptable anywhere else. Doctors who misdiagnose or mistreat 80-90% of their patients would likely lose their licenses to practice medicine. Factory workers creating parts that met specifications less than 15% of the time would soon find themselves looking for other work. But it’s acceptable here for some reason, even if the only thing it’s guaranteed to do is further destroy the relationship between cops and communities. That it’s gone on so long without interruption — even during periods of alleged understaffing — clearly indicates agencies and officers prefer to do things that are easy and pointless, rather than the harder stuff that might actually make a difference.