Pubdate: Sun, 29 Apr 2001 Source: Star-Ledger (NJ) Copyright: 2001 Newark Morning Ledger Co Contact: http://www.nj.com/starledger/ Details: http://www.mapinc.org/media/424 Author: ROBERT SCHWANEBERG, STAR-LEDGER STAFF JERSEY RETHINKS HIGHWAY SEARCH LAW: Drivers' consent led to abuse, critics say: Camden police stopped a car for having illegally tinted windows and seized a loaded handgun underneath the passenger seat. Morristown police answered a call from a motorist who said he had been stabbed but recovered critical tire tread evidence that helped convict that motorist, James Koedatich, of two murders. A New Jersey State Police trooper stopped a motorist driving recklessly and foiled a plot by an international terrorist, Yu Kikumara, to detonate three homemade bombs, each packed with a pound of gunpowder and lead shot. All of those crimes were solved because motorists gave police permission to search their vehicles. But these "consent searches" are under attack in the face of overwhelming evidence that they have been used as a pretext for racial profiling. Last June, a state appeals court put tough new limits on highway consent searches. Now members of the Senate Judiciary Committee are thinking of banning highway consent searches altogether something no other state has done. The committee's hearings on racial profiling have produced statistics showing such searches are aimed overwhelmingly at minority motorists despite 2-year-old reforms intended to prevent such discrimination. And they usually turn up nothing. "I just haven't seen a good reason to continue them," said Sen. Robert Martin (R-Morris), a member of the committee and a professor at Seton Hall Law School. He said police should be allowed to search a car only if they have "probable cause" to believe criminal activity is afoot, in which case they do not need the driver's permission to search. But lawmakers also say they want to eliminate abusive searches without jeopardizing legitimate law enforcement efforts. Consent searches are used for homes as well as cars, but Martin said he would "have to see more evidence" before considering changing the law on searching homes. "It's not an easy area of law to navigate," Sen. Norman Robertson (R-Passaic) said. "We don't want to create a whole host of unintended consequences." One reason it is complicated is because the courts keep changing the rules. On Tuesday, the U.S. Supreme Court ruled, 5-4, that even an offense as minor as failing to wear a seat belt allows police to arrest the driver and search the passenger compartment of the vehicle. The court ruled a Texas police officer acted properly when he handcuffed a mother in front of her two children for failing to buckle up them and herself. The woman was jailed and her truck was impounded. New Jersey's courts have ruled that the state Constitution prohibits police from making an arrest for a simple traffic infraction - an action that would automatically allow them to search a vehicle. Last summer, a state appeals court took that principle a step further, and ruled police may not even ask a motorist for permission to search a car unless the officer can state a reason for thinking a crime is taking place. Appellate Division Judge Sylvia Pressler wrote that such a rule is needed because "baseless requests almost inevitably result in a search. It is our view that travelers on our state highways should not be subject to the harassment, embarrassment and inconvenience of an automobile search following a routine traffic stop unless the officer has at least an articulable suspicion that the search will yield evidence of illegal activity." State Police regulations already require troopers to have a reasonable suspicion before they may ask a motorist to consent to a search. Nonetheless, Attorney General John Farmer Jr. is appealing Pressler's decision, saying in court papers that it would "hinder the efforts of police officers to investigate crimes related to automobiles in transit, and force the police officers of our state to abandon their proactive, crime-preventive role." The New Jersey Supreme Court is considering the case. But a decision on whether to ban consent searches altogether may first be considered by the Legislature. "I think all consent searches are suspect," James Fyfe, a professor at Temple University and a leading expert on police practices, told the Senate Judiciary Committee two weeks ago. "I think the way to deal with it is just to say: You can't do it." Committee members are sympathetic to his argument, especially after learning of statistics suggesting troopers search white motorists when they have cause to be suspicious but search minority motorists just on a hunch. Last year, at the southern end of the New Jersey Turnpike, troopers found contraband 25 percent of the time when searching whites, compared with 13 percent of the time when searching blacks and 5 percent for Hispanics. "This difference in hit rates speaks volumes about the difference in standards police use in searching blacks and whites," Fyfe said. Even without legislative action, the number of consent searches performed by troopers patrolling the Turnpike fell last year to 281, down from 440 in 1999. That decline is continuing, with 40 so far this year. Col. Carson Dunbar, superintendent of the State Police, attributes the decline to new training that emphasizes constitutional rights, according to his spokesman, John Hagerty. In a report submitted Friday to a federal judge, Farmer said videotapes from State Police patrol car cameras are being reviewed for every consent search performed this year. The report said preliminary results "reveal race or ethnicity appeared to be a factor in some of the decisions to request a consent search." Based on what has been reviewed so far, the Attorney General's Office said about a half dozen troopers would be referred for misconduct investigations and others required to undergo retraining. Lawmakers also are concerned that so-called consent searches are seldom, if ever, truly voluntary. Police need a reason to stop a car. But on roads like the Turnpike almost any car can legitimately be stopped. Once stopped by police, getting permission to search is as simple as asking. The courts do not require it, but State Police and many local agencies use a printed "consent to search" form that explains the motorist has a right to refuse. "Generally, citizens don't know they can refuse, or are told they will be kept, possibly for hours," Fyfe said. But police officers say experience shows even criminals with something to hide do consent to searches, sometimes for reasons known only to themselves. "It happens all the time," said Edward Lennon, president of the State Troopers Fraternal Association. "The driver may be stalling, or calling the trooper's bluff, or have it hidden somewhere in the car where he doesn't think it will be found." Nutley Police Sgt. Steven Rogers, president of AmeriCop, a national law enforcement advocacy group, said that about 10 years ago, he stopped a car and noticed a green liquid oozing from golf bags bearing tags showing they had come through LaGuardia Airport. When the driver said the liquid was from ice, Rogers requested, and got, permission to conduct a search. The bags did indeed contain coconut-sized balls of ice, Rogers said. When he split one open, he found a fish head, and inside of that was a bag of marijuana. The fish heads were to fool the drugsniffing dogs at the airport. "Some criminals think they can outsmart the police," Rogers said. "He told me he never imagined that when I began to search, I would take the time to split the ice." Sometimes, Farmer told committee members, a consent search is vital to protecting the public safety. He cited the 1988 case when a state trooper uncovered three homemade bombs after asking terrorist Yu Kikumara if he could search a cardboard box in his car. But lawmakers question whether the occasional big bust from a consent search is worth alienating hundreds, perhaps thousands, of motorists - most of them minorities. "Eighty to 90 percent of the time it's creating at least some infringement on somebody's privacy," Martin said. "We're balancing interests here." - --- MAP posted-by: Andrew