HENNEPIN PUBLIC DEFENDERS SEEK NEW STANDARD FOR SEARCHES

If police don't suspect that a crime is being committed, they
shouldn't even be allowed to ask to search a motorist or a car,
public defenders in Hennepin County are arguing in court papers.

Consent searches too often target minority members whose cars have
been pulled over because of racial profiling, the public defenders
contend. They're asking a district judge to throw out evidence from
such searches when police haven't been able to articulate suspicions
for requesting them.

If the issue goes to the appellate level, a ruling in their favor
would make Minnesota among the first in the country to set that
standard.

As the law stands, police don't need a person's consent to search if
officers have "probable cause," or a fair probability, that a crime
is being committed, experts said. And if officers suspect that a
person may be carrying weapons and putting police in danger, they can
conduct a cursory pat search. But if they have limited or no evidence
of a crime, they must get a person's consent to search. People are
under no obligation to agree, but most do, experts say..

Defense attorneys argue that too often police seek consent searches
solely on the basis of a person's skin color.

"We see on a regular basis, on routine traffic stops, police will ask
people of color certain questions, like 'Do you have guns?' 'Do you
have drugs?' 'Can I search your car?'" said Chief Public Defender
Leonardo Castro, who directed his staff to file the brief.

Police argue that such inquiries, regardless of whom they're directed
to, sometimes lead to arrests, improving public safety. Limiting
their ability to ask for such searches would go too far, one said.

"The consent to search is really where so much is accomplished toward
public safety," said Sgt. Wally Krueger, vice president of the Police
Officers Federation of Minneapolis. "To have articulable reasons ...
it's preventing a law enforcement avenue that leads to numerous
arrests. A lot of times, you may think something's wrong, but you
can't yet articulate a particular crime."

And by linking the issue to racial profiling, the practice of
stopping people based on their race, he added, "They're asking you
... to prove first that you did not racial profile before you can
further a law enforcement action."

A case in point

The public defender's argument, filed in a brief in Hennepin County
District Court, arises from the case of 18-year-old Mustafaa Naji
Fort. He was a passenger in a car that was pulled over for speeding
and a cracked windshield in March in Minneapolis. An officer asked
for consent to search Fort, who is black, court papers say. The
officer found lumps of cocaine in a pocket, and Fort was charged.

Defense attorneys argue that the officer had no good reason to
suspect that Fort was doing anything wrong and shouldn't have even
asked for a search.

If no "race-neutral reason to suspect wrongdoing" exists, then
consent searches should be considered invalid, they contend.

"We're not trying to eliminate consent searches," said James Kamin,
first assistant public defender. "We're asking that you need a reason
to begin to go down the consent path."

Some in the legal community say that could mean big changes.

"This would change law pretty dramatically in Minnesota," said Scott
Hersey, head of the criminal division of the Dakota County attorney's
office.

Though under federal law an officer doesn't need a reasonable
suspicion to ask for a consent search, higher courts in Minnesota,
which can rule on the state's view of that issue, haven't addressed
it specifically. Hennepin County District Judge Kevin Burke ruled
last year that if police have no articulable reason other than a
person's race, consent isn't considered valid.

Hennepin County public defenders say they want to get a favorable
ruling that has more statewide significance. The issue is now before
a district judge and needs at least an Appeals Court ruling in order
to set a precedent.

Some in the legal community say the timing of the brief -- in the
midst of racial profiling discussions -- may give defense attorneys
the results they're seeking.

A New Jersey appeals court has already ruled that police cannot ask
for consent to search without at least "an articulable suspicion,"
according to the brief.

St. Paul police spokesman Michael Jordan said he believes that his
office has found a good middle ground with a policy adopted this
summer requiring officers to give Miranda-style warnings that people
don't have to agree to consent searches. The Minneapolis Police
Department reiterated its similar policy.

The public defenders' brief argues that police should be required to
issue such warnings and keep a record of the consent.

The Hennepin County attorney's office will file a response to the
brief within three weeks. Officials there declined to comment.

Attorneys will argue the consent-search issue Aug. 17 in front of
Judge Steven Lange.

"The very fact they're articulating a new rule suggests they're
looking for a change in the law," said Ed Butterfoss, dean and
professor at the Hamline University School of Law. "It would be a
major step forward in terms of protecting individuals' rights."