UPDATE: Senate Bill 40 has passed into law!
Currently, police officers throughout the US can and do search vehicles without a warrant, probable cause, or true consent. They accomplish this by confusing or intimidating the driver to allow them to search their vehicle. A few senators in New Hampshire are hoping to fix this issue.
Seven state senators have proposed SB40, which would make some minor clarifications in current state law regarding law enforcement searches of vehicles. HB485 is a similar bill introduced in the House.
This bill is short, simple, and effective, in my humble opinion:
“I. A law enforcement officer may legally conduct a search of a motor vehicle without a warrant under this chapter if the law enforcement officer expressly informs the operator of the motor vehicle that:
(a) The operator has the right to refuse to consent to a search;
(b) Any refusal to consent to a search shall not constitute a basis either for probable cause to arrest the operator or reasonable suspicion to detain the operator;
(c) The operator cannot be charged with any crime or violation for refusing to consent to a search; and
(d) The operator cannot be further detained for refusing to consent to a search.
II. If the operator of a motor vehicle refuses to consent to a search, the law enforcement officer shall cease any further questioning concerning consent to a search.
III. A law enforcement officer shall document any consent to search either by the signature of the motor vehicle operator on a consent-to-search form providing notice of the provisions of paragraphs I and II at the time of the consent, or by means of a video and sound recording of the consent at the time of the consent. Such form or video and sound recording shall be retained until any criminal charge resulting from the consent to search is fully resolved.
IV. Any act of a law enforcement officer which violates a provision of this section shall result in the inadmissibility in any criminal proceeding of any evidence obtained by the law enforcement officer.”
I love that this bill makes it very clear that cops must receive clear consent from the driver and that they MUST inform the driver that they can refuse to grant that consent.
I love that the bill clearly makes all evidence procured via illegal searches inadmissable in court. That said, I do wish that the bill created a penalty for cops who violated this law. Without a penalty, cops have little reason to refrain from violating the law.
I do love that the bill clearly states that refusal to allow cops to search the vehicle shall not grant the cop the right to detain, arrest, or punish the driver.
Considering current technology and policies, cops can easily obtain warrants from judges via phone within minutes, making it that much more inappropriate for them to ever conduct a search without a warrant.
Overall, I think that this bill is excellent. If you support justice, accountability, privacy, and individual rights, you should tell your senator and state representatives via email and phone that they should support this bill.
The Senate Judiciary Committee hosted a virtual public hearing for SB40 on 1/19/2021:
The House Criminal Justice Committee is holding a public virtual hearing on HB485 on Wednesday, 2/17 at around 11:45 AM.
2 Comments
Ian Underwood · January 19, 2021 at 12:09 pm
The same thing could be achieved more simply by just saying that a cop needs a warrant to search, period, regardless of consent. Oh, wait — the state constitution already requires that.
Why create exceptions? Cops can ask for warrants over the radio, or over the phone, right?
Especially why create exceptions that try to use statutes to circumvent the constitutional amendment process? Can the legislature, by simply enacting a statute, eliminate constitutional protections?
The only things that would need to be added are (1) some kind of mandatory punishment for a cop who detains you to wait for a warrant, and then has the warrant denied (such as a fine to pay you for wasting your time, which fine would have to be paid by him personally), and (2) a provision that a judge who demonstrates a pattern of issuing warrants for searches that don’t turn up anything must be removed from the bench.
The Liberty Block · January 19, 2021 at 3:40 pm
You make excellent points, Ian! That would be the goal regarding searches by police.
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