JERSEY RETHINKS HIGHWAY SEARCH LAW:

Drivers' consent led to abuse, critics say:

Camden police stopped a car for having illegally tinted windows and
seized a loaded handgun underneath the passenger seat.

Morristown police answered a call from a motorist who said he had been
stabbed but recovered critical tire tread evidence that helped convict
that motorist, James Koedatich, of two murders.

A New Jersey State Police trooper stopped a motorist driving
recklessly and foiled a plot by an international terrorist, Yu
Kikumara, to detonate three homemade bombs, each packed with a pound
of gunpowder and lead shot.

All of those crimes were solved because motorists gave police
permission to search their vehicles.

But these "consent searches" are under attack in the face of
overwhelming evidence that they have been used as a pretext for racial
profiling.

Last June, a state appeals court put tough new limits on highway
consent searches. Now members of the Senate Judiciary Committee are
thinking of banning highway consent searches altogether something no
other state has done.

The committee's hearings on racial profiling have produced statistics
showing such searches are aimed overwhelmingly at minority motorists
despite 2-year-old reforms intended to prevent such discrimination.
And they usually turn up nothing.

"I just haven't seen a good reason to continue them," said Sen. Robert
Martin (R-Morris), a member of the committee and a professor at Seton
Hall Law School. He said police should be allowed to search a car only
if they have "probable cause" to believe criminal activity is afoot,
in which case they do not need the driver's permission to search.

But lawmakers also say they want to eliminate abusive searches without
jeopardizing legitimate law enforcement efforts. Consent searches are
used for homes as well as cars, but Martin said he would "have to see
more evidence" before considering changing the law on searching homes.

"It's not an easy area of law to navigate," Sen. Norman Robertson
(R-Passaic) said. "We don't want to create a whole host of unintended
consequences."

One reason it is complicated is because the courts keep changing the
rules.

On Tuesday, the U.S. Supreme Court ruled, 5-4, that even an offense as
minor as failing to wear a seat belt allows police to arrest the
driver and search the passenger compartment of the vehicle. The court
ruled a Texas police officer acted properly when he handcuffed a
mother in front of her two children for failing to buckle up them and
herself. The woman was jailed and her truck was impounded.

New Jersey's courts have ruled that the state Constitution prohibits
police from making an arrest for a simple traffic infraction - an
action that would automatically allow them to search a vehicle. Last
summer, a state appeals court took that principle a step further, and
ruled police may not even ask a motorist for permission to search a
car unless the officer can state a reason for thinking a crime is
taking place.

Appellate Division Judge Sylvia Pressler wrote that such a rule is
needed because "baseless requests almost inevitably result in a
search. It is our view that travelers on our state highways should not
be subject to the harassment, embarrassment and inconvenience of an
automobile search following a routine traffic stop unless the officer
has at least an articulable suspicion that the search will yield
evidence of illegal activity."

State Police regulations already require troopers to have a reasonable
suspicion before they may ask a motorist to consent to a search.
Nonetheless, Attorney General John Farmer Jr. is appealing Pressler's
decision, saying in court papers that it would "hinder the efforts of
police officers to investigate crimes related to automobiles in
transit, and force the police officers of our state to abandon their
proactive, crime-preventive role."

The New Jersey Supreme Court is considering the case. But a decision
on whether to ban consent searches altogether may first be considered
by the Legislature.

"I think all consent searches are suspect," James Fyfe, a professor at
Temple University and a leading expert on police practices, told the
Senate Judiciary Committee two weeks ago. "I think the way to deal
with it is just to say: You can't do it."

Committee members are sympathetic to his argument, especially after
learning of statistics suggesting troopers search white motorists when
they have cause to be suspicious but search minority motorists just on
a hunch.

Last year, at the southern end of the New Jersey Turnpike, troopers
found contraband 25 percent of the time when searching whites,
compared with 13 percent of the time when searching blacks and 5
percent for Hispanics.

"This difference in hit rates speaks volumes about the difference in
standards police use in searching blacks and whites," Fyfe said.

Even without legislative action, the number of consent searches
performed by troopers patrolling the Turnpike fell last year to 281,
down from 440 in 1999. That decline is continuing, with 40 so far this
year.

Col. Carson Dunbar, superintendent of the State Police, attributes the
decline to new training that emphasizes constitutional rights,
according to his spokesman, John Hagerty.

In a report submitted Friday to a federal judge, Farmer said
videotapes from State Police patrol car cameras are being reviewed for
every consent search performed this year. The report said preliminary
results "reveal race or ethnicity appeared to be a factor in some of
the decisions to request a consent search." Based on what has been
reviewed so far, the Attorney General's Office said about a half dozen
troopers would be referred for misconduct investigations and others
required to undergo retraining.

Lawmakers also are concerned that so-called consent searches are
seldom, if ever, truly voluntary. Police need a reason to stop a car.
But on roads like the Turnpike almost any car can legitimately be
stopped. Once stopped by police, getting permission to search is as
simple as asking.

The courts do not require it, but State Police and many local agencies
use a printed "consent to search" form that explains the motorist has
a right to refuse.

"Generally, citizens don't know they can refuse, or are told they will
be kept, possibly for hours," Fyfe said.

But police officers say experience shows even criminals with something
to hide do consent to searches, sometimes for reasons known only to
themselves.

"It happens all the time," said Edward Lennon, president of the State
Troopers Fraternal Association. "The driver may be stalling, or
calling the trooper's bluff, or have it hidden somewhere in the car
where he doesn't think it will be found."

Nutley Police Sgt. Steven Rogers, president of AmeriCop, a national
law enforcement advocacy group, said that about 10 years ago, he
stopped a car and noticed a green liquid oozing from golf bags bearing
tags showing they had come through LaGuardia Airport. When the driver
said the liquid was from ice, Rogers requested, and got, permission to
conduct a search.

The bags did indeed contain coconut-sized balls of ice, Rogers said.
When he split one open, he found a fish head, and inside of that was a
bag of marijuana. The fish heads were to fool the drugsniffing dogs at
the airport.

"Some criminals think they can outsmart the police," Rogers said. "He
told me he never imagined that when I began to search, I would take
the time to split the ice."

Sometimes, Farmer told committee members, a consent search is vital to
protecting the public safety. He cited the 1988 case when a state
trooper uncovered three homemade bombs after asking terrorist Yu
Kikumara if he could search a cardboard box in his car. But lawmakers
question whether the occasional big bust from a consent search is
worth alienating hundreds, perhaps thousands, of motorists - most of
them minorities.

"Eighty to 90 percent of the time it's creating at least some
infringement on somebody's privacy," Martin said. "We're balancing
interests here."