Durham adopts written-consent policy for searches

Starting Oct. 1, all Durham Police Department officers will obtain a person’s written permission before undertaking a so-called “consent search” of a vehicle or building.

The decision squares with the wishes of the City Council, but was confirmed this week by City Manager Tom Bonfield, who has the actual executive power to order the change.

Without the use of written consent, “it’s pretty obvious we can’t get by this trust issue” regarding the Police Department’s that’s emerged over the past year or so, Bonfield said Tuesday.

The change, and the Oct. 1 start date, was included in a long list of “action items” Bonfield included in an updated report to the council on the staff response to advice from the city’s Human Relation Commission and Civilian Police Review Board.

It said the department will begin “written documentation of all consent searches,” not just those of buildings.

City officials and their advisory boards have mulled the consent-search issue at the urging of an assortment of interest groups led by the Southern Coalition for Social Justice.

The groups pointed out that statistics show Durham police search the vehicles of black motorists well out of proportion to their share of the city’s population.

They urged the use of written consent to ensure that motorists know they have the right to refuse an officer’s request for a look inside a car or truck when the officer doesn’t have probable cause to think there’s been a crime.

The change won’t affect searches authorized by a warrant, or probable-cause based vehicle searches without warrants, which the U.S. Supreme Court allows.

Deputy Police Chief Larry Smith and other Police Department commanders have said officers for tactical reasons will sometimes ask a motorist for permission to conduct a search, even when they have probable cause to search without the target’s consent.

The Human Relations Commission supported the call for the use of written consent. Bonfield agreed on the need for “documentation” of permission, but other than for buildings, he initially thought it would be sufficient to capture it in an audio or video recording.

But Southern Coalition activists countered that minorities are more likely to feel intimidated by police, and thus need the additional warnings and protection of a written consent form.

City Council members agreed.

“If I have to sign something, then I am more cognizant of what my rights really are,” Councilman Schewel said earlier this month. “I actually get to decide whether or not I want to exercise that right.”

Bonfield said that while he still thinks “documentation in some form” is enough, the community-trust issue overrides that.

“People believe written [consent] is going to provide more responsiveness to restoring trust,” he said. “And that’s fine.”

He added that the Oct. 1, two-weeks-away start should give commanders time enough to spread the word to front-line officers.

Police Chief Jose Lopez “felt confident they could meet that deadline,” Bonfield said. “That was his suggested deadline; that wasn’t mine.”

Council members are scheduled to discuss police issues again on Thursday, but they don’t need to do anything more for the change in consent-search policy to take effect. “We’re moving forward with that,” the manager said.

This piece originally appeared in the Durham Herald-Sun Sep. 16, 2014 @ 06:14 PM