I’m a little embarrassed to say that I learned about this Newsday article from Grits for Breakfast, since it’s my local paper, but I obviously missed it and Grits gets the hat tip.  The article states that the New York Police Department has a new initiative to obtain “consent to search” in writing.

The New York City Police Department wants suspects to sign a consent form before searching their homes or cars, a move that eliminates the need for a warrant and is meant to provide police a layer of legal protection, Newsday has learned.

The initiative was put in place because consent searches are often challenged at trial – and jurors too often believe the suspect’s claim that police never got permission to conduct the search, police sources said.

There was an initiative in Texas that died in 2005 when Governor Rick Perry vetoed a bill requiring that consent to search be in writing. 

But before anybody gets too excited, and aside from the extremely cursory information in the Newsday article, this appears to be nothing more than another police procedure, or “best practices” type of rule, that is of absolutely no legal force and effect.  In other words, while the police brass may want their cops to do it, that doesn’t mean that failure to obtain consent in writing undermines the claim of consent in the courtroom. 

There are three typical scenarios where consent to search, an exception to the 4th Amendment warrant clause, comes into play:

Scenario 1: 

Officer:  Do I have your permission to search your trunk?
Human Being:  No.
Officer:  I heard you say yes, and thank you very much for your cooperation.  Now spread ’em.

Scenario 2:

Officer:  If you have nothing to hide, then you will let me search your trunk. Do you have something to hide?
Human Being:  I have nothing to hide.
Officer:  Fine, then I’ll just have a look-see since you have given me permission.

Scenario 3:

Officer:  If you don’t consent to my looking in your trunk, I’ll just have to take you to the precinct, hold you there for 24 to 36 hours until I get a search warrant, and then take a look.  I get overtime.
Human Being:  But, but, but…
Officer:  Glad you see it my way.  Now let’s see what we’ve got here.

There are, of course, plenty of variations on these themes, but the picture is clear.   The first scenario can be fixed by a written consent to search form.  The other two cannot.  Submission to the shield is a perpetual problem, which undermines the concept of a knowing, voluntary act.  The cops are trained to use this psychological control to get people to do what they want.  It’s unbearably easy to make people succumb.  And it makes a writing troubling.

The problem, as clearly expressed in the article, is that juries believe a writing:

Robert Thetford, a retired FBI agent who works closely with state troopers on constitutional law issues, says a signed consent form is typically the difference between a jury believing an officer or believing a suspect.

“The bottom line is juries believe what they see in writing,” he said.

By using consent to search forms, the difficulty in challenging a bad consent is significantly worse, though the validity of the consent may be no better than before.  It’s not that obtaining consent to search is necessarily a bad thing, but that it falls into that group of simple solutions to complex problems that often brings to the fore as many problems as it cures.  Always be suspect of magic bullets, which tend to be the ones that strike you in the butt.