By Derek Henderson
The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or UA Little Rock.
The Arkansas Constitution uses language nearly identical to the U.S. Constitution’s Fourth Amendment to prohibit unreasonable searches and seizures. Despite similarities in verbiage, Arkansas is free to find greater protections in its own constitution than the U.S. Supreme Court has found in the U.S. Constitution. Under the federal approach, a home or vehicle occupant’s consent is valid if it is voluntary under all of the circumstances. In Arkansas, consent searches of dwellings require more than voluntary consent. Arkansas’ Supreme Court held in 2004 that officers must advise occupants of a dwelling that they can refuse to give police consent to search. The Arkansas Supreme Court also revised the Arkansas Rules of Criminal Procedure to match. For vehicle searches, Arkansas follows the federal rule and only requires voluntary consent under all of the circumstances. Arkansas’s Supreme Court has declined to extend additional protection to vehicle consent searches. This brief analysis suggests that Arkansas ought to revisit vehicle searches through a ballot initiative that would give greater protections to vehicle occupants. To do so, Arkansas can take valuable lessons from an effort to expand protections for vehicle searches in Colorado.
Responding to concerns about the role of racial profiling in consent searches, lawmakers in Colorado introduced a bill in 2010 that seemed to require an advisement on the right to refuse a consent search. In its original form, the bill applied to searches of homes, vehicles, and persons. The bill was pared down to apply only to searches of vehicles and persons. That did not defeat the bill’s main purpose since a driver exposed to public view is more likely than a home occupant to be singled out due to race. In its final form, the law provided that an “officer may conduct a consensual search only after articulating the following factors,” which included an advisement on the right to refuse to consent to the search (emphasis added). Curiously, the law also provided that failure to comply with the law would be considered “as a factor in determining the voluntariness of the consent.” The latter provision suggested that “articulating the factors” would be only one factor itself in whether a search was voluntary. Colorado’s Supreme Court confirmed this paradox in 2013 when it ruled that failure to advise on the right to refuse a consent search is only one factor in determining whether consent was voluntary. Thus, a law that held so much promise for expanding civil liberties became little more than a suggestion on how police ought to behave.
Summaries from the Colorado House and Senate Judiciary Committees show that proponents of the law were acting largely to prevent racial bias in policing. Opponents of the bill were concerned that advising citizens of their right to refuse a consent search would prevent police from catching criminals. Proponents of the bill conceded, though, that failure by police to give the advisement on the right to refuse consent would not always be grounds for suppressing evidence found in the search (at 88:07). This concession, probably intended to assuage the fears of some moderates, seems to have paved the way for the Colorado Supreme Court to hold that the law imposed no categorical requirements on police.
Colorado’s attempt to expand protections against coercive consent searches contains important lessons. First, public support or disapproval should decide whether civil liberties are expanded. The Colorado law apparently began as a grassroots effort by concerned citizens, but citizens did not exercise their right to an initiative vote. If citizens pushed the issue as a ballot initiative, it would have succeeded or failed as presented on the ballot.
Second, resisting the political instinct to compromise can be crucial to achieving meaningful change. Much of the business of state legislatures has to be centered on compromise, but compromise is not appropriate when clarity on civil liberties is at stake. Compromise in this case led to disappointment for citizens and the public servants who fought for the law’s passage. At best, the compromise left civil liberties as they were before the law’s passage; at worst, the law may give motorists a false sense of security.
Arkansans can heed both lessons by organizing a strong push for a ballot initiative. It is not clear whether a majority of Arkansans wish to see such an expansion of civil liberties, so the question ought to be brought to the people to decide. It is true that various groups may bargain to determine the language of the ballot initiative and the language may not survive government scrutiny, but any result from a transparent public process would be easier to accept than a badly drafted legislative compromise.
Fully drafting such a measure is beyond the scope of this analysis; also, this analysis takes no position on whether it would be better to seek a statutory or constitutional change. However, Arkansans should consider two important points. Rhode Island adopted the position that police cannot ask for consent to search unless they first have reasonable suspicion or probable cause. This requirement would mean that police can no longer request consent out of mere curiosity. Short of this, the law could provide for a rebuttable presumption that a request for consent implies a lack of reasonable suspicion or probable cause. Either of these provisions would help to make the law clear to help stave off judicial nullification. It may be that Arkansans do not want greater protection during traffic stops, but the issue should be for citizens to decide.