Little opposition to stopping police coercion in vehicle searches
CONCORD — Law enforcement would have to stop pressuring a vehicle owner to search a vehicle after the driver refuses to consent under a bill a House committee heard Wednesday.
Senate Bill 40 is similar to a House bill that passed earlier this month and is now before the Senate.
The bill is supported by the American Civil Liberties Union New Hampshire, while law enforcement organizations suggested changes to the bill, but did not oppose it.
Franklin Police Chief David Goldstein, speaking for the police chief’s association, suggested a change to clarify a person could not be detained “solely” for refusing to consent to a vehicle search.
He said a driver has every right to decide not to consent to a search, but if an officer sees “blood dripping from the trunk,” he would have to avoid further communications with the driver.
The officer would not be doing his job if he could not detain an individual and investigate further if he observed something suspicious, Goldstein said.
Most departments give drivers a form that clearly states a person has a constitutional right to refuse a search, he said, noting there are decades of legal decisions that leave it to the court to decide if an officer has overstepped the bounds in conducting a search.
But the change was opposed by both University of New Hampshire Law School professor Buzz Scherr and Devon Chaffee from the ACLU.
Scherr said adding the word adds confusion noting it allows an officer to take into consideration the person refusing to consent to a search in determining if the person will be detained.
Under established legal precedent there is nothing to stop an officer from detaining a person and the vehicle if blood is dripping from the trunk.
“This bill does not get in the way one way or another,” Scherr said.
Chaffee said as written, refusing to consent to a search cannot be considered in determining to retain an individual, while adding the word “solely” allows it to be a reason to detain.
“Police can detain now if there are other factors beyond the search,” Chaffee said. “Refusing to consent to search should not be part of the equation.”
Chaffee also objected to a provision State Police sought to clarify police could “re-engage” the driver after the person refuses to allow a search.
State Police Capt. Joseph Ebert said after a stop and the driver has refused to allow a search, the officer may say he has to detain the car, and the diver may reconsider and gives consent to avoid having the car towed for a simple violation that could be handled on the side of the road.
There has to be a lot of documentation to make sure a person is not coerced to make the decision to allow the search, Ebert said. Chaffee said the bill says the officer shall not continue to pressure for a search, not to re-engage the driver is another issue.
The bill also contains a change requested by the Judicial Branch to simplify and streamline the warrant process.
Instead of engaging in a sworn statement before a judge to receive a search warrant, the change would allow an officer to self-swear to the evidence.
Richard Head, government affairs coordinator for the Judicial Branch, said the request is an attempt to better align the state to use the federal Criminal Justice Information System run by the Federal Bureau of Investigation, which is a remote, secure portal for telephonic warrants.
Head said it would be a more secure process than the current after-hours process of an officer calling a judge on a less secure cellphone to swear to a judge in order to issue a warrant.
“The goal is to have the warrant be a self-sworn document,” he said.
No one objected to the provision.
The committee did not make an immediate recommendation on the bill.
Garry Rayno may be reached at firstname.lastname@example.org.