Effective warnings before consent searches: practical, necessary, and desirable.

• Author: Phillips, Matthew

1. INTRODUCTION

   According to the Supreme Court, the following events could not have happened. In July 2000, New Jersey police officers began investigating Keith Domicz after learning that he had purchased equipment commonly used to grow marijuana. Suspecting that Domicz was using the equipment to cultivate marijuana in his home, the police decided to confront him and try to obtain consent to search his home. Two plain-clothes officers knocked on his door, identified themselves, and told Domicz that they needed to speak to him. Domicz invited the officers to come inside his house, where they noticed the distinctive odor of marijuana. The officers informed Domicz that they wanted his permission to search the house, but, as required by New Jersey law, first informed him of his right to refuse consent then presented him with a consent-to-search form. The officers read and explained the form to Domicz, who appeared to be listening attentively and looking at the form. Domicz then signed the following statement: "I have knowingly and voluntarily given my consent to the search ... and fully understand that I have the right to refuse giving my consent to search." The officers searched the house and found ninety-seven marijuana plants, a cache of processed marijuana and methamphetamine, and a variety of marijuana-growing equipment. They arrested Domicz, who eventually pleaded guilty to operating a controlled-dangerous-substance facility. (1)

   Why would the Supreme Court say those events could not have happened? The encounter was smooth, efficient, and, perhaps more importantly, effectively resulted in the seizure of critical evidence and the conviction of a drug trafficker. However, according to the Court, it was "thoroughly impractical" for the State to "impose on the normal consent search the detailed requirements of an effective warning." (2) With that single dogmatic statement in Schneckloth v. Bustamonte, unsubstantiated by either empirical evidence or expert testimony, the Court rejected the notion of requiring an effective warning before a consent search. (3)

   Despite the Court's claim, several states' courts have interpreted their Constitutions to require law enforcement to warn subjects of their right to refuse consent before a subsequent search may be deemed valid. A review of the experience of these states indicates that a warning requirement is practical, even when accompanied by stringent administrative requirements of data tracking, supervision, and oversight--effective law enforcement is not impeded, and the informality of the encounter is not disrupted. This refutation of the Court's impracticality argument explains why there is no impediment to requiring an effective warning. This Note will argue that the effective-warning requirement and its administrative provisions are necessary in order to alleviate the inherent coercion of consent search encounters and to reduce the racially discriminatory use of consent searches.

2. THE FEDERAL CONSENT-SEARCH DOCTRINE

   The Supreme Court defined the basic contours of federal consent-search doctrine in Schneckloth, a seminal 1973 case holding that for a search to be deemed voluntary, the prosecution need only show that the consent to the search was in fact voluntary. (4) The Court did not require states to give individuals Miranda-like warnings of their right to refuse consent, or to prove that the individual in fact knew of his right to refuse consent. (5) Subsequent Supreme Court decisions have reaffirmed and extended Schneckloth. This Part first outlines the contours of Schneckloth. Next it compiles common criticisms of the Schneckloth doctrine. This Part then examines three subsequent Supreme Court cases which reaffirm and extend Schneckloth: Ohio v. Robinette, (6) United States v. Drayton, (7) and Illinois v. Wardlow. (8) Finally, this Part presents Schneckloth's impracticality argument in more detail.

   1. Schneckloth Sets the Stage

      In Schneckloth, the Supreme Court established the standard that consent searches must meet under the Fourth Amendment. (9) Three officers stopped a car containing Robert Bustamonte and five other men because the officers noticed that one of the car's headlights and the license plate light were off. (10) An officer asked one of the men, Joe Acala, if he could search the car. Acala replied, "Sure, go ahead." (11) According to a police officer's uncontested testimony, the encounter was "very congenial," and Acala even helped with the search. (12) As a result of the search, an officer found three stolen checks in the car, which were later admitted as evidence against Bustamonte. (13) Bustamonte moved to suppress the evidence, arguing that the search was invalid. (14) The question presented to the Court was simple: in order to comply with the Fourth Amendment, what must the prosecution prove to demonstrate that consent was voluntarily given? (15) In deciding this issue, the Supreme Court was faced with a basic decision that had split lower courts: whether the voluntariness requirement meant that the subject had to know of his right to refuse consent, or whether such knowledge was merely one factor courts should consider when analyzing the totality of the circumstances to determine whether the consent was in fact voluntary. (16)

      The Court rejected the argument that a subject must know of his right to refuse consent before his consent may be considered valid, and instead embraced a totality of the circumstances test to determine whether a consent "was in fact 'voluntary' or was the product of duress or coercion." (17) The subject's knowledge of his right to refuse consent was merely one factor to be considered, and not the "sine qua non of an effective consent." (18) The purpose of this totality test, the Court opined, was to balance competing policy considerations: "the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." (19) To supplement the test, the Court provided a non-exhaustive list of factors to be considered in the course of the totality test: the subject's age, intelligence, and amount of schooling; the officer's claim of authority; whether the suspect was in custody; and the conditions under which the consent was given. (20) While embracing the totality-of-the-circumstances test, the Court identified several justifications for rejecting the requirement that consent be knowing. First, the Court distanced itself from the realm of confessions and the Fifth Amendment, specifically from Miranda v. Arizona. (21) Miranda recognized the inherently coercive nature of custodial police interrogations, and required police to inform suspects of their right to remain silent and their right to an attorney. (22) Furthermore, it required police to obtain a waiver of those rights before a confession gained from custodial questioning may be considered valid under the Fifth Amendment. (23) However, the Schneckloth Court held that Miranda's analysis was inapplicable to the consent search context because consent search requests are not inherently coercive, and because people with different levels of sophistication are protected by the totality-of-the-circumstances test. (24) Consent searches are not inherently coercive because, according to the Court, they typically occur in non-custodial situations far removed from the custodial interrogation context seen in Miranda. (25) Furthermore, unlike in the context of confessions, consents should not be treated as waivers of a constitutional right because it would be too difficult for law enforcement officers to determine whether a waiver was intelligent, and because a waiver approach would be inconsistent with decisions approving third-party consents. (26) The Court proceeded to argue that, even under a waiver approach, the knowing-and-intelligent requirement should not be extended to routine consent searches because that requirement has been extended to the pretrial stage only in order to protect the fairness of the trial itself, as in Miranda. (27) Finally, the Court expressed the concern that forms the basis for this Note: that requiring warnings would impede law enforcement, arguing that it "would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning." (28)

      Thus, the Court opted for a totality-of-the-circumstances balancing test which has been applied inconsistently by lower courts and has been subject to harsh criticism by commentators, as will be discussed below. More significantly for this Note, the Court also rejected the alternative of imposing the requirement of an effective warning, based primarily on its ad hoc assessment of the practicality of such a requirement, unsupported by any empirical evidence. As this Note will argue, empirical evidence shows that effective warnings are in fact practical, even when accompanied by strict administrative provisions.

   2. Schneckloth Under Fire--Common Criticisms

      Criticism of Schneckloth can be divided into two general categories. The first category contains criticism which attempts to repudiate the reasoning behind the Court's decision. Scholars have argued that the Court's reasoning in Schneckloth is unsound because the consent search context is not as distinct from Miranda as the Court would like to believe, and that the circumstances of a consent search are often more inherently coercive than the Court admits. (29) If consent searches are more coercive than the Court admits, then the Court's justification for distinguishing consent searches from Miranda, and the knowing-and-intelligent-waiver requirement therein, is considerably weakened. Critics have also argued that, despite the Court's statement to the contrary, similar waiver requirements have been imposed in other contexts for reasons other than protecting the fairness of a criminal trial. (30)

      The second category contains criticisms of the doctrine as applied--that consent...