By David M. Greenwald
Davis, CA – The city of Davis has taken a number steps of to “re-imagine” policing. The two biggest are the creation of a department of social services, moving a number of duties out of the realm of the police and the creation of a CRISIS Now approach to mental health crises, which moves away from an armed police response.
However, the biggest problem for policing in Davis—by far—is police stops. The data that has emerged mirrors that of the rest of the nation. Black and brown people are more likely to be stopped by police than whites. Blacks are nearly six times more likely to stopped, which is much higher than the state average and once stopped they are more likely to be searched, but when they are searched they are less likely to be found with contraband.
Statewide, the Racial and Identity Profiling Advisory Board found that “individuals perceived to be Black were searched at nearly three times the rate of individuals perceived to be White.” In addition, “officers arrested individuals perceived to be Black at nearly 1.6 times the rate as individuals perceived to be White.”
The same research, however, finds that Black vehicles that are searched are actually less likely to contain contraband than white vehicles that are searched—the presumption seeming to be that they are searching white people based more on objective factors than on pretext or prejudicial guesswork.
There have been a variety of different approaches to solving this problem—everything from not allowing the police to pull people over for non-moving violations to ending searches during traffic stops when there is not probable cause to believe there was a criminal violation.
Berkeley Dean of the Law School Erwin Chemerinsky’s 2020 book, Presumed Guilty, noted that, starting in 2012, three cities in North Carolina—Fayetteville, Durham and Chapel Hill (note the college connection)—created policies that required the police to obtain written rather than verbal consent to a search.
Chemerinsky reported, “The number of searches of cars decreased significantly.”
One of the problems with such searches is that police, while they do not need a search warrant to conduct a search on the car, need probable cause to conduct a search.
Absent probable cause, the police can request permission from the driver to search the vehicle. Most people who are asked by police if they can search, consent to that search—even when they have contraband in their car.
Why? For the most part because they are not aware and not informed that they have the right to say no and so, while it is a request to search, it feels more like a command.
By going the route of written consent, the person has to sign an admonishment that advises them of their rights and, informed about their rights, many people at that point exercise their right not to have the vehicle searched.
Are we taking away a powerful tool from the cops by doing this? Not really. The data shows that racial profiling does not yield a very high hit rate for finding contraband, which is why whites who are searched generally on the basis of probable cause end up being found with contraband much more often.
The result of going to written consents works to reduce the number of searches. When political scientists Frank Baumgartner, Derek Epp and Kelsey Shoub studied their data, they found, “The number of cars searched following a traffic stop dropped precipitously.”
As Neil Gross wrote in a 2020 NY Times op-ed, “The reason is simple. Written consent forms explain to motorists what their rights are, giving some of them the courage to tell the police no. This changes the incentive structure for police officers looking to stop cars as part of a fishing expedition for contraband.”
Gross however warns, “written consent forms won’t eliminate racial disparities in traffic stops. The police department in Austin, Texas, for example, has used these forms since 2012 and continues to stop Black drivers disproportionately.”
He said, “But by reducing the frequency of vehicle searches, consent forms make the experience of being stopped less onerous. It’s one thing to be pulled over and ticketed, quite another to have your car rifled through.”
As communities look at ways to address disparate police stops, this might be a reasonable path to look at. It still gives police the ability to conduct a search, but it makes sure that the public is knowingly and voluntarily waiving their rights rather than being coerced into doing so.