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Op-Ed: How Requiring Written Consent Helps Property Owners, Police, and Prosecutors

Editor’s Note: This Op-Ed was written and submitted to Breitbart Texas by Savannah Hostetter and Greg Glod with the Center for Efective Justice at the Texas Public Policy Foundation.

A police search in San Marcos, Texas made headlines this past month after two individuals accused officers of breaking into their private property.

San Marcos police, stating the owners gave consent, searched an airplane hangar under suspicion that one of the owners, Edward Romano, was dealing drugs. Owners Romano, a retired police officer, and Charles Soechting, a defense attorney, insist they did not give police permission to search their property housing confidential work files.

A federal suit has now been filed over the San Marcos dispute, but this case could have likely been resolved if police were required to do one task: have the property owners voluntarily sign a search consent form.

Written consent forms benefit all parties involved. For police, the forms provide procedural guidance as well as valuable evidence. When a written contract rather than a verbal agreement takes place, offenders who agree to a search, then deny having previously given consent once they have been caught, cannot wrongly accuse officers of unlawful searches.

For citizens, consent forms remind people of their constitutional right not to grant consent for search unless they otherwise desire to agree.

In 2005, a Texas bill requiring written consent without a warrant passed Texas Legislature but failed to obtain the governor’s signature. Nonetheless, independent police departments nationwide have introduced new procedures to protect their officers and the rights of citizens.

At a City Council Public Safety Committee meeting in 2013, Dallas Police Chief David Brown announced that DPD officers would be required to issue forms for consensual searches without warrants. Austin’s police department also made a similar policy change in 2012.

When Police Chief Art Acevedo announced Austin’s plan to implement the new policy, he stated he hoped written consent would assist police in “building stronger criminal cases because it helps eliminate vagueness over whether someone consented.” Consent forms especially reduce vagueness associated with language barriers, offering officers an effective mean to communicate with non-native speakers.

Outside the Lone Star State, written consent forms have already proven to make a difference. In Kalamazoo, Michigan, the city’s crime rate dropped 7 percent amid a 42 percent reduction in traffic stops. Traffic searches in Fayetteville, North Carolina also dropped 60 percent after the implementation of a written consent policy.

In the San Marcos case, voluntary written consent forms would have not only protected police and Romano and Soechting’s Fourth Amendment rights, but would have also provided clarity for the court.

Written consent forms allow prosecutors and defense attorneys to present evidence judges and juries need to render fair rulings, and cases deserving the courts’ attention are not prematurely dismissed due to thrown out evidence obtained through unlawful means.

When people go out to eat at a restaurant, a waiter or a waitress provides customers with a copy of their receipts to verify the purchases. If a customer agrees with the amount billed, he or she will sign the bottom of the receipt—verifying that the customer and restaurant are in agreement. Both parties then leave the exchange with a copy of the receipt for their financial records.

How is it that Texans sign a paper and obtain documentation of an agreement when purchasing a burger, but written consent in not required statewide to search private property without a warrant?

The famous Irish play writer and Nobel Prize winner George Bernard Shaw got it right when he said, “The biggest problem with communication is the illusion that it has been accomplished.” The amount of communication accomplished between officers and citizens is under attack every day. Written consent forms provide the clarity and protection so many Texans deserve. 

Savannah Hostetter is an intern with the Center for Effective Justice at the Texas Public Policy Foundation.

Greg Glod is a policy analyst with the Center for Effective Justice at the Texas Public Policy Foundation.

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