If You're Reading This, It's Too Late: the Unconstitutionality of Notice Effectuating Implied Consent

• Publication year: 2020

If You're Reading This, It's Too Late: The Unconstitutionality of Notice Effectuating Implied Consent

Michelle Tomkovicz

IF YOU'RE READING THIS, IT'S TOO LATE: THE UNCONSTITUTIONALITY OF NOTICE EFFECTUATING IMPLIED CONSENT^†

Abstract

Reasonableness is the touchstone of the Fourth Amendment; a search is per se unreasonable absent a warrant, but if the state has garnered consent from an individual, the subsequent search is deemed reasonable and not to have violated the Fourth Amendment. Because consent is a powerful exception, governments looking to establish valid search schemes are attempting to garner consent, specifically implied consent, by notifying individuals that specific actions will serve as consent to search.

Such attempts are not rare. This Comment focuses on three examples: the Denver Police Department's use of signs notifying individuals in particular areas that their biometric data is being gathered, the City of Bristol's street signs notifying individuals that parking in public spots serves as consent to search their vehicles for parking enforcement purposes, and, most famously, implied consent laws claiming that the issuance of a driver's license serves as consent to a breathalyzer test. These examples all illustrate government attempts to use notice to effectuate implied consent to search.

This Comment argues that this approach to garnering implied consent to search is largely dishonest, despite the ubiquity of such laws in American society. The vast majority of attempts to use this approach do not comport with any definition of consent, especially not implied consent. Further, the Fourth Amendment's consent exception requires a number of elements be met before consent can be satisfied. However, turning to the pervasively regulated industries exception for inspiration, this Comment proposes a four-element dispositive test to determine when notice can effectuate implied consent to search: tradition of search, consistency of search, revocability of consent, and most importantly, furthering of public safety.

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Introduction.............................................................................................155

I. The Theoretical Underpinnings of Consent: Ontology and Elements.........................................................................................160

A. Philosophical Ontology of Consent.......................................... 160
B. Philosophical Elements of Consent .......................................... 162

II. Implied Consent in Various Areas of Law................................163

A. Implied Consent in Contract Law ............................................. 163
B. Implied Consent in Sexual Assault Law .................................... 164
C. Implied Consent under the Fourth and Fifth Amendments ....... 167

1. The General Consent Exception ......................................... 167

a. Indication..................................................................... 168
b. Authority...................................................................... 169
c. Voluntariness ............................................................... 170
d. Scope ............................................................................ 172
e. Implied Consent Laws in the DUI Context .................. 174

2. The Administrative Search Doctrine and Pervasively Regulated Industries Exceptions ........................................ 176

III. The Ambiguous Role of Notice in Consent Theory.................180

A. Notice in the Private Law Setting: Clickwrap Versus Browsewrap.............................................................................. 180
B. The Role of Notice in Fourth Amendment Searches ................. 181

IV. Why Notice Alone Is Not Sufficient to Effectuate Valid Implied Consent.............................................................................187

A. Notice and the General Consent Exception.............................. 190
B. Notice and the Administrative Search and Pervasively Regulated Industries Exceptions ................................................................ 195

V. Drawing the Line: When is Notice "Enough?"..........................197

Conclusion.................................................................................................199

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Introduction

The Fourth Amendment protects the right of citizens to be free from unreasonable searches and seizures.¹ This right "belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs."² "No right is held more sacred, or is more carefully guarded . . . than the right of every individual to the possession and control of his own person, free from all restraint or interference of others."³

These epic proclamations make clear that no act or interest is too small to warrant protection under the Fourth Amendment. A recent case from the Sixth Circuit demonstrates just how far this sentiment goes. In Taylor v. City of Saginaw,⁴ the court held that the practice of tire chalking for parking enforcement purposes constitutes a search under the Fourth Amendment.⁵ In the aftermath of this case, parking enforcement officers subject to the law of the Sixth Circuit may⁶ need a warrant prior to chalking a vehicle's tires.

But in an interesting twist, not long after this decision was handed down, new signs began popping up on the streets of Bristol, Tennessee,⁷ a small town

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within the Sixth Circuit.⁸ These signs read, "By parking in timed spaces, you consent to your tires being chalked for parking enforcement."⁹ In other words, after the court held a practice to be a violation of the people's Fourth Amendment rights,¹⁰ the City of Bristol immediately used its authority to post signs that served to nullify the court's decision by claiming to obtain implied consent from its citizens. This example begs an important question: can the state turn an unconstitutional search into a constitutional search simply by putting individuals on notice?

Bristol, Tennessee's use of signs to imply consent to search is neither the only nor the most serious attempt by a jurisdiction to do so. The Denver Police Department uses a surveillance system called the High Activity Location Observation system, or HALO.¹¹ Employing 256 cameras around the city,¹² the police are constantly monitoring almost every corner of Denver.¹³ While simply monitoring a city via pole camera surveillance is a constitutional practice,¹⁴ these cameras can now be combined with other software to cross-reference data they gather with other systems of biometric data collection and analysis to find people of interest.¹⁵ The Colorado Bureau of Investigations already has plans to

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combine the HALO system with software called Morpho Argus,¹⁶ a real-time video screening system that processes faces captured in live or recorded video,¹⁷ to turn the HALO cameras from tools that monitor the public to tools that scan, collect, and store the biometric data of Denver's citizens.¹⁸ All of this data is obtained without the express consent of its citizens. However, the city has posted signs stating, "Attention: This area is monitored by video cameras to enhance your safety and security."¹⁹

A third example animating the role notice plays in the Fourth Amendment is classic DUI implied consent laws. These statutes claim to confer consent to search via breathalyzer (and possibly blood test) through the issuance of a driver's license. The statute provides the "notice," which, combined with the issuance of the driver's license, provides law enforcement with your "consent" to a breathalyzer test, should you be suspected of driving while intoxicated. While the constitutionality of these schemes has been questioned, they still exist in all fifty states today.²⁰

These three examples, although spanning the spectrum of technological sophistication, give rise to important questions about the meaning of implied consent and the role notice plays in the Fourth Amendment search equation. Where does the theory of implied consent fit within the Fourth Amendment?²¹ Is notice alone enough to generate the implied consent to search?

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The answers to these questions have important implications as legislatures begin creating laws regulating the collection of biometric data, and courts will undoubtedly begin hearing challenges to these laws almost as soon as they are enacted. Currently, there is no federal biometric data collection law, and only a few states have legislation regulating biometric data collection.²² Washington State is the next in line—Washington's House of Representatives has drafted a bill regulating the gathering of biometric data that is currently working its way through the legislature.²³ Before creating these laws, legislatures should have a concrete understanding of the role implied consent plays in various Fourth Amendment doctrines, especially if they rely on implied consent rationales to justify their new laws. As an initial matter, the Fourth Amendment requires law enforcement to obtain a warrant prior to conducting a search of a private area.²⁴ Warrantless searches are presumptively unreasonable;²⁵ however, this presumption can be overcome when an individual gives valid consent, either express or implied.²⁶

Theories of implied consent permeate two separate exceptions to the Fourth Amendment warrant requirement: the general consent exception²⁷ and the pervasively regulated industries exception, housed within the administrative search doctrine.²⁸ The general consent doctrine of the Fourth Amendment is the most commonly used exception to the warrant requirement;²⁹ it deems searches

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reasonable once an individual has consented to the search.³⁰ Under this doctrine, consent can be given either explicitly or implicitly, as long as it meets the common law requirements.³¹ The pervasively³² regulated industries exception is...