Reconstructing consent.

• Author: Strauss, Marcy
• Position: Police searches

"Will you walk into my parlor? Said the Spider to the fly." (1)

Every year, I witness the same mass incredulity. Why, one hundred criminal procedure students jointly wonder, would someone "voluntarily" consent to allow a police officer to search the trunk of his car, knowing that massive amounts of cocaine are easily visible there? (2) The answer, I have come to believe, is that most people don't willingly consent to police searches. Yet, absent extraordinary circumstances, chances are that a court nonetheless will conclude that the consent was valid and the evidence admissible under the Fourth Amendment. (3) Although courts pay lip service to the requirement that a person's consent to a search must be "the product of a person's free will and unconstrained choice" in order to be valid, (4) in reality that requirement means very little. Typically, courts simply recite the accepted notion that "the government has the burden of demonstrating a voluntary consent" (5) without much further analysis. Even if the court delves further, it almost always fails to consider whether the coercion inherent in the "request" to search made by a police officer should vitiate the consent. And courts almost never determine whether particular races or cultures may be particularly susceptible to such authoritative pressures. Only if the police behave with some extreme degree of coercion beyond that inherent in the police-citizen confrontation will a court vitiate the consent. (6)

Why is this so? The real problem is that the idea of voluntary consent, if seriously considered at all, has come to be a descriptive question. The court at best recites factual information--what the defendant said and did, what the police officer said and did--and then makes some conclusory statement about whether the consent was voluntary. What is missing from the dialogue about consent is any normative judgment. Exactly what is meant by "voluntariness?" Do we simply mean the absence of coercion? Are we concerned with the behavior of the police--have they acted reasonably? Should the background, experience, race, or beliefs of the suspect matter?

This Article attempts to rethink the notion of voluntary consent. In Section I, the current law governing voluntary consent searches under the Fourth Amendment is set forth. In Section II, the problems with applying the voluntary consent standard as currently understood are considered. There are three main flaws in the law of voluntariness. First, I argue that the law of consent is unclear and misguided. Specifically, I maintain that the subjective views of the suspect are almost invariably ignored by the courts. Moreover, recent Supreme Court decisions cast doubt on whether a subjective or objective perspective is appropriate, leaving the current test in flux.

Second, and most important, current caselaw fails to consider the reality that most people will feel compelled to allow the police to search, no matter how politely the request is phrased. Such feelings of compulsion are particularly experienced by members of certain racial and cultural groups who fear confrontation with the police.

Third, and finally, the current doctrine of consent inherently fosters distrust of police officers as well as the judicial system. Establishing viable consent relies on a process that at its worst encourages police perjury, and at its best, distortion. Judges are forced in many ways to either acknowledge the perjury or look the other way.

In Section III, I consider possible solutions to the current quagmire of consent, and pose the question: why not eliminate consent searches? Although I argue that there is strong theoretical and analytical support for such a position, I recognize that the courts are not likely to do so. Accordingly, less "drastic" alternatives that might make the law of consent conform to the normative goal of ensuring that a search is the product of a person's free and unrestrained choice are discussed.

Although the notion of consent searches has been accepted for over fifty years, it is essential that the doctrine be re-evaluated. Although precise figures detailing the number of searches conducted pursuant to consent are not--and probably can never be--available, (7) there is no dispute that these type of searches affect tens of thousands, if not hundreds of thousands, of people every year. (8) And recent decisions by the Supreme Court endorsing suspicionless drug interdictions and pretextual automobile stops will only magnify the problem. (9) After all, in situations where the police lack probable cause, the only source for a valid search will be consent. Thus, the time is ripe to rethink consent.

1. THE LAW OF CONSENT

   The Fourth Amendment to the U.S. Constitution guarantees "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizure" and that "no Warrants shall issue but upon probable cause." (10) By its terms, the Fourth Amendment does not explicitly require a warrant before undertaking a search, and the courts have consistently recognized numerous situations where a warrant is not necessary. This Article is concerned with perhaps the most significant exception to the Fourth Amendment's requirements: searches undertaken solely based on a person's consent. (11)

   The Supreme Court first recognized the validity of a search based not on a warrant but upon a person's consent in 1946. (12) But it was not until 1973, in Schneckloth v. Bustamonte, (13) that the Supreme Court clearly articulated the requirements for a voluntary consent search consistent with the Fourth Amendment. In Schneckloth, a police officer stopped a car at around 2:40 a.m. "when he observed that one headlight and its license plate light were burned out." (14) Six men were in the car; one, Joe Alcala, was the brother of the car's owner, who was not present. (15) When asked by the officer if he could search the car, Alcala replied, "[S]ure, go ahead." (16) No one was threatened with arrest, and the police officer's uncontradicted testimony was that "it was all very congenial." (17) Alcala assisted in the search, even opening the trunk and glove compartment. In the course of the search, the police officer found three stolen checks wadded up under the left rear seat. These checks were later admitted as evidence against Robert Bustamonte, one of the passengers in the car. (18)

   Bustamonte moved to suppress the evidence on the grounds that the search was invalid. The question posed to the Court was "what must the prosecution prove to demonstrate that a consent was `voluntarily' given"? (19) In considering this issue, the Court first considered the meaning of voluntariness developed in the area of police interrogations and confessions. (20) The confession cases, the Court concluded, yielded "no talismanic definition of `voluntariness.'" (21) Rather:

   "The notion of 'voluntariness'" ... "is itself an amphibian." It cannot be taken literally to mean a "knowing" choice. "Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements--even those made under brutal treatment--are `voluntary' in the sense of representing a choice of alternatives. On the other hand, if `voluntariness' incorporates notions of `butfor' cause, the question should be whether the statement would have been made even absent inquiry or other official action. Under such a test, virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind." It is thus evident that neither linguistics nor epistemology will provide a ready definition of the meaning of "voluntariness." (22) Finding no clear definition, the Court instead decided to base its definitions of voluntariness on a consideration of the competing policy considerations. That is, the Court held that the meaning of voluntary consent must reflect a balance between the conflicting interests involved in police searches. On the one hand, according to the Court, is the need for consent searches, as evidenced by the facts of Schneckloth itself. After all, here was a search that yielded important information that resulted in the arrest of a person; without consent, the officer would have been unable to search the car since he admittedly lacked any probable cause for believing incriminating evidence would be discovered there. On the other hand, and equally important, is "the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness." (23)

   Accommodating these conflicting values led the Court to conclude that:

   the question whether a consent to a search was in fact `voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. (24) In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. (25) Although the Court did not provide a detailed list of all the factors to be considered, it did mention that the suspect's age and intelligence, amount of schooling, the officers' claim of authority, whether the suspect was in custody, and the conditions under which consent was given were relevant considerations. (26)

   Moreover, and of primary importance in Schneckloth, the Court addressed whether a voluntary consent requires that the person know of his or her right to refuse the police officer's "request" to search the car. Since the Court felt that it would be virtually impossible to prove in most cases whether a person knew of his rights, the question...