Roadside traffic stop or fishing expedition?

The following op-ed was published in this weekend’s Deseret News.

This past October, the Utah Highway Patrol placed a flashy sign along Interstate 70, warning drivers that police were just ahead, searching for people transporting drugs. But the warning was false — it was just a “ruse checkpoint” used to weed out people in possession of illegal drugs.

Just across the road, UHP officers and their K-9 units waited for drivers to make illegal U-turns after passing the sign, which gave them a reason to stop the vehicles. While one officer checked the driver’s credentials, the other could walk around the car with a drug-sniffing dog.

In this case, UHP could reasonably assume that those who committed the traffic violation were likely guilty of possessing illegal drugs. But if the sign were removed, and the K-9 unit wasn’t present, should an officer instead just ask to search the vehicles of people who make an illegal U-turn? How about asking those who have a taillight out or aren’t wearing a seatbelt? Probably not.

When a traffic stop is completely unrelated to any suspicion of another criminal offense — say, drug possession — officers should not ask drivers for permission to conduct random searches. Put differently, traffic enforcement should not be utilized as a fishing expedition for other offenses. It’s not only a waste of time and resources, and unrelated to driver safety, but also an invasion of individual privacy.

When a person is pulled over, even if they aren’t doing anything wrong, most people become anxious and nervous by a police officer’s presence, which often triggers a response of compliance. And while this might not always be a bad thing, it certainly affects an individual’s ability to exercise their constitutionally protected rights when asked by the officer to consent to a vehicle search. This results in officers gaining access far more often than not, even when there is no reasonable suspicion that a crime is being committed.

Under Utah law, officers can’t conduct random searches without probable cause unless the individual gives them permission to do so. There could be multiple reasons why an officer decides to ask for a search, including an unconscious bias leading to profiling of the individual due to race, economic status or otherwise. It’s no secret that incarceration rates are higher for minorities and those with low income, not only in Utah, but nationwide.

One thing the Utah Legislature can do to help prevent this wage and racial gap is to require law enforcement officers to have articulable suspicion for a crime beyond a moving violation before they even ask for consent to search a vehicle. Although requesting consent to search may seem meaningless on the surface, individuals often feel pressured into complying no matter what, not fully recognizing or utilizing their power to say no. And demonstrating suspicion of a criminal act helps ensure that officers are not using a person’s appearance or economic circumstances as a condition of plying consent from that person.

When an officer does decide to ask for consent to conduct a search, they should also be required to inform the suspect that they have the right to refuse a request without penalty. This Miranda-like measure would help protect an individual’s rights while legitimizing the consensual search process to help preserve the admissibility of any discovered contraband for prosecution in a criminal proceeding.

These attempts to protect individual rights and decrease bias in policing have already been implemented in various jurisdictions around the country. Rhode Island has passed a law similar to the one proposed above, and New Jersey bans all consent searches that are unrelated to articulable suspicion for the stop. Other states, such as ColoradoWashington and Arkansas, require law enforcement officers to inform individuals of their right to refuse a consent search. Utah has neither of these safeguards in place.

Drivers should retain the right to be secure in the privacy of their vehicle — especially when they are not doing anything to jeopardize the safety of nearby drivers. If an officer suspects that criminal activity is being committed, then they need to have some articulable suspicion before they simply resort to a search request, to which most individuals will feel pressured to affirmatively consent anyway. Changing the law to require this standard will help officers respect our rights while still enforcing the law.