June 22, 2011
New York City Police on Consent
Today's New York Times has an interesting story about passengers of livery car services who have been pulled out of the cars and searched by police. According to the Times, the practice is a product of the Taxi/Livery Robbery Inspection Program. That program permits drivers to join the program and thus to allow police to "inspect their car at anytime in order to ensure the driver’s safety." Drivers indicate their participation in the program by affixing a decal to their rear and side windows.
When passengers asked why they were being instructed to step out of the back seat of their livery or cab and be searched, the police informed them, according to the Times, that they had consented to be searched when they got into a car displaying decals indicating that the driver was part of the Inspection Program. The Times story focuses on the question of whether the police were acting within the law in searching passengers -- and also searching their bags -- when the purpose of the law seems to be driver safety. If the latter is the purpose, the police might take the more direct route of inquiring whether the driver felt threatened by the passenger and then doing whatever was necessary to neutralize the threat. One such passenger was informed that he was searched because he fit the description of a person wanted in connection with a series of robberies. The man in question, who is a 6'5", 280-pound African American, may well fit the description of a number of suspects, but if that is all the police have to go on, we are getting close to pulling people over for taking a cab ride while black.
In any case, as a contracts blog, we are most concerned with the notion of consent deployed by the police in this context. The decals displayed on the cabs that join the inspection program signal only that the drivers have consented to having their cars searched by police. The decals do not provide notice to passengers that they have consented to anything. We have reported before on restaurants that try to bind all customers to arbitration by posting a sign to that effect on their doors. The enforceability of such notices is subject question. What would it take to put passengers sufficiently on notice in this case? I would think the decals should have language something like this:
WARNING: BY ENTERING THIS CAR, YOU KNOWINGLY FORFEIT YOUR RIGHTS UNDER FEDERAL AND STATE LAW TO BE FREE FROM UNREASONABLE SEARCHES
Ian Ayres has suggested that consumers sport the LiabiliT, which reads:
Any disclaimer of liability notwithstanding, management, by serving me, accepts legal responsibility for any losses to my person or property that result from my use of this establishment.
One could design a similar T-shirt for cab passengers:
WARNING: NOTWITHSTANDING ANY AGREEMENT BETWEEN THE DRIVER OF THIS CAR AND ANY LAW ENFORCEMENT AGENCY, FEDERAL AND STATE LAWS STILL PROTECT MY RIGHT TO BE FREE FROM UNREASONABLE SEARCHES
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