The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance.

AuthorSommers, Roseanna

ESSAY CONTENTS INTRODUCTION 1966 A. The Psychology of Judgment and Decision-Making 1976 B. Applying Psychological Insights to Consent Searches 1978 I. STUDY 1: COMPLIANCE WITH A SEARCH REQUEST 1982 A. Method 1982 1. Participants 1982 2. Procedure 1983 B. Results 1984 1. Compliance Behavior 1984 2. How Free People Feel 1986 3. Experimenters' Notes 1987 C. Summary of Study 1 Findings 1987 D. Underestimation of Compliance Outside of the 1987 Laboratory II. STUDY 2: MIRANDA-FOR-SEARCH 1989 A. Method 1991 1. Participants 1991 2. Procedure 1992 3. Defining Compliance 1992 4. Manipulation Check: Beliefs About the 1992 Consequences of Refusal B. Results 1993 1. Compliance Behavior 1993 a. Oneself 1993 b. Reasonable Person 1995 c. Comparing Oneself Versus a Reasonable Person 1997 2. How Free People Feel 1998 a. Oneself 1998 b. Reasonable Person 1999 c. Comparing Oneself Versus a Reasonable Person 2000 3. Experimenters' Notes 2000 C. Summary of Study 2 Findings 2000 III. GENERAL DISCUSSION 2001 A. Why Is Compliance So High? 2001 B. Why Did Forecasters Fail to Anticipate High Compliance and Low Feelings of Freedom? 2004 IV. LEGAL IMPLICATIONS 2006 A. Limitations 2006 B. Implications of High Compliance Levels 2009 C. Implications of the Empathy Gap 2011 D. Implications of the Failure of Miranda-for-Search 2014 CONCLUSION 2019 APPENDIX 2020 INTRODUCTION

Under the Fourth Amendment, police are permitted to perform warrantless searches of individuals who have given valid consent to be searched. (1) Today, consent searches account for over 90% of all warrantless searches conducted by police. (2) If an individual gives consent, the police can search without having particularized probable cause or reasonable suspicion. The vast majority of searches turn up no contraband or evidence of illegal activity. (3)

The landmark consent search case Schneckloth v. Bustamonte provides that an individual's consent must be voluntary and cannot be "coerced, by explicit or implicit means." (4) Related cases have held that mere "acquiescence to a claim of lawful authority" (5) is insufficient; consent must be "freely and voluntarily given." (6) Courts evaluate the "totality of the circumstances" to determine whether the decision to submit to a search was made voluntarily. (7)

Consent search jurisprudence has drawn fire from academics, criminal justice advocates, and judges. (8) Many critics argue that consent search doctrine is a legal fiction. (9) Judges, these critics say, do not scrutinize whether a citizen submitted to a search voluntarily; rather, they balance the interests of the police against those of the citizen. (10) Courts, however, have largely forged ahead with the voluntariness test, continuing to explain their decisions in terms of consent. (11)

In this Essay, we take the voluntariness test on its own terms. Drawing on the results of two preregistered laboratory studies, we demonstrate how, even if judges intend to assess how pressured people feel to comply with police search requests, systematic biases in social perception are likely to impair their performance on this task. Our findings suggest that third parties judging the voluntariness of consent are likely to underestimate the pressure people feel to comply with intrusive requests. These results generally support, but also diverge in important ways from, the prevailing criticisms of consent search doctrine.

The most prominent critique of consent search jurisprudence is that police searches cannot be truly voluntary if citizens do not know they have the option of withholding consent. (12) To these critics' frustration, the Supreme Court has repeatedly held that the Fourth Amendment does not require police to advise citizens of their right to withhold consent. (13) In other words, there is no Miranda for search. (14)

Another salient critique of consent searches is that they are "inherently coercive" (15) because "implicit in the [police officer's] introduction... is a show of authority" that will intimidate the average person. (16) Marcy Strauss argues that the power differential between officer and citizen entails the "simple truism that many people, if not most, will always feel coerced by police 'requests' to search." (17) This may be especially true for racial minorities, who are disproportionately stopped and asked to submit to consent searches. (18) Indeed, consent search jurisprudence has been decried as "the handmaiden of racial profiling." (19)

A third objection to consent searches is that the legal standard for determining the voluntariness of consent is murky and ill-defined, allowing courts to find consent voluntary in all but the most extreme cases. (20) The Court announced in Schneckloth that voluntariness is determined by "careful scrutiny of all the surrounding circumstances," including "the state of the accused's mind." (21) In theory, this voluntariness determination is supposed to be different from the more objective reasonable-person test, which is used to assess whether a person has been "seized" by police. (22) The court emphasized in Schneckloth that the voluntariness test for consent searches considers individualized factors such as the defendant's intelligence and level of schooling. (23) Yet over time, the Supreme Court has appeared to embrace a more objective standard that looks at how a reasonable person would feel, deemphasizing how the particular individual felt. (24) In United States v. Drayton, the Court explained that consent searches were permitted as long as "a reasonable person would understand that he or she is free to refuse." (25)

Indeed, systematic studies of lower-court rulings have found that judges rarely give weight to individualized factors about the accused when deciding voluntariness. (26) Instead, judges tend to focus on the conduct of the police, such as whether officers used a "conversational tone" and whether they drew their weapons. (27) If there is "no threat, no command, not even an authoritative tone of voice," (28) judges generally infer that the defendant felt free to refuse the search. (29) It is as if courts are saying that most people feel free to refuse police requests so long as the officers ask permission in a polite, conversational manner.

Reflecting further confusion about the voluntariness test, lower courts are deeply divided about what exactly the standard is meant to capture. A large number of them--the Second, Third, and Tenth Circuits, and, as of 2017, at least twelve state courts of last resort--review the voluntariness determination deferentially on appeal, using a clearly erroneous or abuse of discretion standard. (30) By contrast, the remaining circuits and at least fourteen state appellate courts subject voluntariness determinations to de novo review. (31) These courts defer on issues of "historical fact" but make an independent judgment on the ultimate legal question of whether those facts amount to voluntary consent. (32)

No matter the standard, though, courts tend overwhelmingly to find that consent was given voluntarily, (33) even when it seems that most people would feel enormous pressure to say yes to a search. (34) "[T]he Supreme Court's 'reasonable person' apparently has a lot more mettle than the average Joe," writes David Cole, National Legal Director of the ACLU. (35) In Drayton, for example, the defendants were passengers on a bus that was stopped during a layover. (36) Three officers came aboard; one stationed himself at the front of the bus, one stood at the back, and one began approaching passengers one by one and asking for consent to search their baggage. (37) The defendants, who were never informed of their right to exit the bus or to refuse the inspection, agreed to be searched. (38) To some commentators, the situation was obviously fraught with coercion and intimidation, but the Justices did not see it that way. During oral argument, one questioned why the presence of police on the bus should make people feel less free to decline: "There's a policeman in the front of the bus. Who cares? He ... has made it very clear that he's asking for your permission [to perform the search]." (39)

Comments such as these have led critics to charge that the Court is either committing "serious errors" in its understanding of human psychology (40) or else the doctrine "has devolved into a fiction of the crudest sort--a mere device for attaining the desired legal consequence." (41) Indeed, several Fourth Amendment scholars contend that when courts assess the voluntariness of consent, they are really assessing whether the police struck the appropriate balance between their crime-control aims and citizens' privacy rights. Tracey Meares and Bernard Harcourt note that "voluntariness" seems to operate as a "placeholder for an analysis of the competing interests of order and liberty" rather than an assessment of the individual's state of mind. (42) Daniel Williams similarly asserts that "[m]etaphysical notions like voluntariness have always been mere lexical paraphernalia of the actual inquiry into police methods we accept as legitimate crime-fighting tools." (43) Janice Nadler has argued that the "real standard" judges apply is whether the police behaved appropriately, while the "nominal standard" they write about in their opinions describes the reasonable suspect's state of mind. (44) She elaborates:

The "real" standard--whether the police conduct was within the bounds of "acceptable" coercion under the circumstances (no guns drawn, no explicit threats uttered)--functions as the decision rule that permits individual Justices to make an initial private, internal judgment about whether to uphold the admission into evidence of the contraband police discovered. The basis of that judgment is that the police behaved responsibly and did not cross the line that defines acceptable police behavior. The "nominal" standard is then trotted out in the Court's written opinion to justify the police...

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