The Conversational Consent Search: How "quick Look" and Other Similar Searches Have Eroded Our Constitutional Rights
| Publication year | 2014 |
The Conversational Consent Search: How "Quick Look" And Other Similar Searches Have Eroded Our Constitutional Rights
Alexander A. Mikhalevsky
Georgia State University College of Law, alex.mikhalevsky@swiftcurrie.com
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Introduction.......................................................................1078
I. Background....................................................................1081
A. The Origins of Consent Law....................................1081
B. Modern Day Consent Law.......................................1083
C. The Voluntary Consent Search and its Relevance to Conversational Consent Searches............................1085
D. What Does This Mean for You and Me?.................1086
II. Two Views on the Scope of Consent Granted in Quick Look Police Searches..................................................1087
A. Restricted View of Consent......................................1088
1. United States v. Wald.........................................1088B. The Expanded View of Consent...............................1094
2. Wald Compared With Other Restrictive View Federal Cases.....................................................1091
3. The Restrictive View in State Courts..................1092
1. Expanded View in the Name of Law Enforcement Efficiency............................................................1095
2. Expanded View Based on Failure to Object......1097
III. The Future of Consent Law: A New Standard for Showing Voluntary Consent in Quick Look Search Cases..............................................................................1099
A. Informed Consent and the Widespread Use of Consent Forms........................................................................1099
B. Encouraging Change by State Legislature and Local Law Enforcement......................................................1103
C. Abolishing Consent..................................................1106
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D. Proposed Solution to the Conversational Consent Issue..........................................................................1107
Conclusion..........................................................................1108
Over the past decade, acts of terrorism and an increasingly unstable global economy have resulted in increased emphasis on national security.1 In order to achieve a higher level of security, U.S. citizens have suffered the consequences of more aggressive and invasive security measures.2 While most U.S. citizens would probably agree that they would sacrifice some individual liberties in the name of security, where will the line be drawn?3
As national security plays a larger role in our daily lives, U.S. law enforcement officers man the front lines in keeping our cities and communities safe.4 Recently, however, police across the country have
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become "increasingly militarized."5 Local police forces now arm themselves with military equipment6 (e.g., armored personnel carriers that fire .50 caliber rounds,7 helicopters, and amphibious tanks)8 with the authorization and at the expense of the federal government.9
While spotting the traditional arms expansion of power amongst our law enforcement agencies is easy, the non-traditional expansion—the increasing use of covert technology and furtive tactics—is not so apparent. Police departments have begun to test the constitutional limits of their actions,10 employing techniques "once reserved for overseas intelligence . . . to domestic criminal investigations."11
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One area in which law enforcement agencies have stretched constitutional limits concerns the scope of a suspect's consent to search his or her vehicle.12 Police forces across the country have tested the limits of consent by asking vague, conversational questions to suspects with the goal of obtaining a suspect's consent to search, even though that individual may not want to allow the search or may not know that he or she has the right to deny consent.13 Conversational phrases like "Can I take a quick look?"14 or "Can I take a quick look around?"15 have "emerg[ed] as . . . a regular part of police jargon."16 When people answer these questions in the affirmative—thus consenting to a search—courts have diverged on the question of what people have actually agreed to.17 Have they given up any right at all? Or, have they just consented to a full search? Part I of this Note will describe the history of consent and its interplay with the U.S. Constitution.18 Part II will then examine and analyze how courts have interpreted the scope of consent in a variety of "conversational consent search" cases.19 Finally, Part III will analyze a variety of potential solutions to the issues conversational consent searches present and ultimately propose that courts should adopt a narrow interpretation of the search scope granted by a conversational consent.20
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A. The Origins of Consent Law
In the United States criminal justice system, the idea of an individual consenting to a search by a law enforcement officer stems from the "interplay" of the Fourth and Fifth Amendments to the United States Constitution.21 The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and that "no Warrants shall issue, but upon probable cause."22 Meanwhile, the pertinent portion of the Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself."23 Much debate has surrounded the definition of a "search" under the Fourth Amendment, the intricacies of which fall outside the scope of this note.24 However, courts have developed a much clearer definition of a seizure under the Fourth Amendment.25 In Terry v. Ohio, the Supreme Court stated that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen."26
On its face, the Fourth Amendment does not impose a requirement that a warrant be issued whenever a government official performs a
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search,27 and courts have long recognized situations in which police do not need a warrant to conduct a search.28
One of the most widely recognized exceptions to the warrant requirement—and the one at the heart of "quick look" police searches—is the voluntary consent search.29 Courts first applied the voluntary consent principle in 1946.30 In early opinions on the issue, the Supreme Court validated police searches based on one's voluntary consent, reasoning that an individual had knowingly waived a "constitutional right."31 As more consent cases progressed through the courts, however, the Supreme Court shifted gears—now holding that individuals need not know that they are abandoning a legal right in order for consent to be valid.32 This premise justified a new theory—
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one other than waiver—to support consent searches. Accordingly, courts now hold that voluntary consent searches are constitutional because the consent search is a "reasonable" search.33
B. Modern Day Consent Law
While courts first recognized voluntary consent in 1946, they did not lay out more stringent guidelines until 1973 when the U.S. Supreme Court decided a landmark consent case, Schneckloth v. Bustamonte.34 In Schneckloth, the defendant was charged with possession of a check with intent to defraud.35 Police found the evidence that formed the basis for the charge—three "[w]added up" checks—during a consent search of a vehicle in which the defendants were riding.36 The "precise question" that the court decided was "what must the prosecution prove to demonstrate that a consent was 'voluntarily' given."37 As the court put it, voluntariness has "no talismanic definition[,]"38 but rather in determining voluntariness one should look at "the totality of all the circumstances."39 Some of the factors that courts should weigh in determining voluntariness are:
(1) knowledge of the constitutional right to refuse consent; (2) age, intelligence, education, and language ability; (3) the degree to which the individual cooperates with the police; (4) the individual's attitude about the likelihood of the discovery of contraband; and (5) the length of detention and the nature of
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questioning, including the use of physical punishment or other coercive police behavior.40
Since Schneckloth, courts have continued to tailor the requirements necessary to show that an officer obtained valid, voluntary consent from a suspect.41 In addition to the voluntariness requirement outlined above, courts have required that the consent come from a person with "actual"42 or "apparent"43 authority to give consent. Also—and the most important requirement for the purpose of this note—to be constitutional, an officer's search "may not legally exceed the scope of the consent supporting it."44 Furthermore, courts will imply consent from "the circumstances surrounding the search, by the person's prior actions or agreements, or by the person's failure to object to the search."45
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C. The Voluntary Consent Search and its Relevance to Conversational Consent Searches
Ever since courts have recognized the voluntary consent theory as an exception to the warrant requirement, law enforcement officers have made often use of it.46 The reasons for the vast increase in voluntary consent searches have been widely addressed. In general, the popularity of these searches stems from the fact that "consent is so easily obtained," and consent searches afford officers "the depth and breadth of the search" that they want.47 Adding to the problem, most people do not know that they have the right to refuse consent and—unlike the attendant Fifth Amendment48 —under the Fourth...
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