Agenda - 12-05-2016 - 6-a - Minutes

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9 1 Chair McKee asked if Sheriff Blackwood would work with management about pricing, 2 and get figures back to the BOCC to make a decision with him, not for him. 3 Commissioner Dorosin said the hour is late. 4 5 3. Written Consent to Search Requirement for Law Enforcement 6 7 BACKGROUND: 8 At the September 6, 2016 Board of Commissioners' ("BOCC") meeting, Commissioner Mark 9 Dorosin submitted a petition that the topic of written consent to search be discussed at an 10 upcoming BOCC work session. Some law enforcement agencies in North Carolina, including 11 the Durham, Greensboro, and Fayetteville Police Departments have adopted policies requiring 12 police to obtain written consent to search. Both federal and State law, however, allow consent 13 to be provided in writing, orally, or by other means, as long as the expression of consent 14 communicates its meaning clearly. 15 Proponents of requiring use of written consent to search forms assert that this measure is 16 necessary given statistics that seem to indicate that minorities are disproportionately more likely 17 to be stopped and searched than white drivers. Meanwhile, concern has been voiced from law 18 enforcement that such a requirement would negatively affect their ability to engage in efforts to 19 combat crime and ensure public safety. 20 21 Commissioner Dorosin said this is an important tool they should adopt. He said this 22 goes a long way to building trust and a tool in the service of law enforcement. He urged the 23 Sheriff's Department to adopt this and his peers to support it. 24 Sheriff Blackwood said written consent to search was used in the 1980s, but it went 25 away because attorneys started instructing law enforcement that written or verbal consent can 26 be used to search, as long as the consent was clear. He talked to retired law enforcement, who 27 said they would feel less safe if this was implemented. 28 He said he would not adopt the policy, but when feasible, he would require his deputies 29 to use the written consent form. He said if this practice is abused, there will be camera records 30 to show it. He said if there are complaints to searches, he would address them. 31 Chair McKee asked Commissioner Dorosin if there is probable cause to search, then 32 the written consent is not used, or necessary. 33 Commissioner Dorosin said the written consent is for when there is not probable cause 34 to search. 35 Jennifer Galassi, Legal Advisor to the Sheriff's Office, said that is not necessarily always 36 the case, as sometimes written consent is received even when there is probable cause. She 37 said getting the consent facilitates law enforcement's ability to things more expeditiously. She 38 said if consent is received, the interaction tends to be more cooperative. She said law 39 enforcement does not have to inform the person in question that there is the right to give written 40 consent, and the prosecution does not have to prove the person in question knew that written 41 consent existed. 42 Commissioner Dorosin said if people know they can say no, they will say no, and while 43 the right exists, law enforcement does not want them to say no. He feels law enforcement 44 should inform the person in question that they can give written consent or refuse the search. 45 Jennifer Galassi said there is a notion that the idea of consent is being substituted for 46 the idea of reasonableness, which is the touchstone of the fourth amendment. 47 Commissioner Jacobs asked if one does not give consent, can an officer say there is 48 probable cause to search, or does the refusal to consent halt the interaction. 49 Jennifer Galassi said if there is truly no probable cause, then yes the interaction should 50 end upon refusal to consent.