§ 16.01 PRELIMINARY OBSERVATIONS: PRAGMATISM, THE POLICE, AND THE SUPREME COURT

• Jurisdiction: United States

§ 16.01. Preliminary Observations: Pragmatism, the Police, and the Supreme Court¹

If warrantless searches are per se unreasonable, as the Supreme Court has often maintained (although far less often recently), the most significant "exception" to the warrant "requirement" is probably the "consent search" exception. As one police officer explained:

[T]here are a lot of warrants that are not sought because of the hassle. You just figure it's not worth the hassle. . . . I don't think you can forego a case because of the hassle of a search warrant, but you can . . . work some other method. If I can get consent, I'm gonna do it.²

Another police officer, frustrated at delays in getting a warrant, expressed the situation this way: "You say to yourself, 'My God, you know, if I'm putting you [the magistrate] out, you know, I'll run back to the house and try bargaining for consent, you know, 'cause I can get that done.'"³ Indeed, although there are no reliable figures on the number of warrantless searches justified on consent grounds, "consent" almost certainly represents the dominant category of lawful warrantless searches.⁴ Put simply, there are few areas of Fourth Amendment jurisprudence of greater practical significance than consent searches.

One of the more interesting and, for some, potentially troubling, aspects of consent law, is how far the Supreme Court has bent to permit this form of warrantless activity. Justice Potter Stewart candidly explained the Court's attitude regarding consent searches in Schneckloth v. Bustamonte:⁵

In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence. . . . And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent . . . is a constitutionally permissible and wholly legitimate aspect of effective police activity.

Do these arguments hold up? In a situation in which the police believe they have probable cause to conduct a search, the primary justification for allowing them to act without a warrant—and, thus...