We can do this the easy way or the hard way: the use of deceit to induce consent searches.

• Author: Strauss, Rebecca

In October of 1995, Aaron Salvo was studying and living at Ashland College. (1) College officials informed local FBI agents that they suspected Salvo of possible child molestation and related conduct based on incriminating electronic mail. (2) FBI agents approached Salvo at his dormitory, asked to speak with him in private about the suspicious mail, and suggested they speak in Salvo's dorm room. (3) Salvo agreed to speak with the officers, but declined to do so in his room because his roommate was there, and he did not want to get anyone else involved in the embarrassing nature of the upcoming conversation. Salvo claimed that during the conversation in another room, an FBI agent requested permission to search Salvo's room by telling Salvo "we can do it discreetly or go to the Courthouse and talk to the Ashland County Prosecutor, get a warrant and be back with uniformed police to conduct the search, and he [Salvo] would be excluded from the room." (4) Another agent told Salvo that the first agent "was not playing games, and would search his room whether Salvo let him or not." (5)

At a hearing to suppress the evidence discovered during the search of his room, Salvo argued that his consent was coerced because he did not feel like he could choose to refuse his consent. (6) The district court found that Salvo's consent was involuntary because of the FBI agent's statement that "they could do it the easy way or the hard way." (7) The Sixth Circuit overturned the district court's ruling by holding that "[i]t is well-settled that the agent's statements to the effect that he would obtain a warrant if Salvo did not consent to the search does not taint Salvo's consent to a search." (8) The court reasoned that since the FBI agents would have been able to obtain a warrant if they had sought one, the threat was not "baseless" and therefore not coercive. (9)

A few years before Salvo's experience, the South Carolina police stopped Furman Lattimore's car for speeding. (10) The police officer asked to search Lattimore's car for narcotics or contraband. (11) Lattimore asked the officer to confirm that if he didn't consent, the officer would search his car anyway. The officer confirmed his suspicion: "If you don't, I feel you're hiding something. Therefore, I'll call a drug dog right up the road to come down here and let him search the car." (12) Lattimore signed the consent form, but later moved to suppress the evidence seized pursuant to the search. The district court ruled that his consent was voluntary, even though it was "concerned" with the statement about the drug dog. (13) The Fourth Circuit upheld the search despite the government's concession that the police officer did not have the legal authority to permit a drug dog to sniff Lattimore's car. (14) Both cases illustrate the problem that this Note addresses: when law enforcement informs the subject of a search that they will search the premises with or without the subject's consent, is the resulting consent valid?

The authorities may conduct a consent search only if the person subject to the search grants valid consent. Over thirty years ago, in Bumper v. North Carolina, (15) Justice Stewart expressed the simple statement: "[w]here there is coercion there cannot be consent." (16) Bumper was an appeal from a rape conviction in North Carolina. The petitioner wished to suppress a .22-caliber rifle found in his home during a search that he argued violated the Fourth Amendment. (17) The police seized the rifle in the petitioner's home, which he shared with his sixty-six-year-old grandmother, an African American widow. Their home was located on a rural, isolated dirt road. (18) Four white officers met the grandmother at her front door, and one announced "I have a search warrant to search your house." The petitioner's grandmother told them to "go ahead" and opened the door for them. (19)

At a motion to suppress the evidence, (20) the police relied on the grandmother's consent, rather than a search warrant, to justify the search. The issue presented to the Court was whether consent is valid when the police inform the consenter that an officer possesses a search warrant. Justice Stewart concluded that "there can be no consent under such circumstances." (21) The Court held that consent cannot later justify a search conducted on the basis of an invalid search warrant. The same is true, the Court reasoned, when no search warrant was issued at all or when the State does not rely on a warrant to justify the search. (22) Bumper's narrowest holding is that when consent to a search is given only after police falsely inform the consenter that they have a search warrant in their possession, the consent is invalid as a result of "colorably lawful coercion." (23)

If police officers tell a subject of a search that they are in the process of getting a search warrant, or will be applying for a search warrant to search her home and then ask for consent, it seems that the case would be similar to Bumper, in that "when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search." (24) Surprisingly, courts have not held that Bumper invalidates consent when an officer informs the consenter that he will obtain a search warrant. (25) Thus, courts have applied Bumper's prohibition against "colorably lawful coercion" (26) only in the narrow instance when an officer claims to have a warrant in his possession. (27) This Note argues that when an officer conveys the impression to the subject of a search that he will return with a warrant if the subject of the search does not offer his consent, the situation is deceptive, and coercive, and courts should not permit it. (28)

The most common search employed by the police is the consent search: some ninety-eight percent of searches police conduct without a warrant they conduct pursuant to consent. (29) The consent exception is valid only if the consent is voluntary and given by one with the authority to give such consent. (30) While considerable debate surrounds both the issue of who has the ability to consent, (31) and the voluntary nature of consent, this Note primarily focuses on the issue of what constitutes voluntary consent.

The Supreme Court prescribed the test to determine voluntariness in Schneckloth v. Bustamonte, decided in 1973. (32) The Court held that lower courts should look to the totality of the circumstances surrounding the consent in determining voluntariness. (33) Under Schneckloth a consenter does not have to be informed of his right to refuse to consent. Voluntary consent means that the consenter had a choice to refuse and the police obtained the consent without practicing any coercive tactics. (34) Courts may consider the consenter's knowledge of his rights as one factor in the total equation.

While the Schneckloth Court helped determine what is not necessary for voluntary consent, it did not explore fully when coercion exists. Some of the courts routinely consider the number of uniformed officers present, (35) factor the display of weapons, (36) time of day, (37) the existence of prior illegal police action, the defendant's maturity, sophistication, mental or emotional state, (38) the defendant's previous or subsequent refusal of consent, whether the defendant is in custody, (39) the defendant's belief that the officers would not find any incriminating evidence, (40) physical mistreatment of the defendant by police, (41) and the defendant's awareness of his right to refuse consent. (42) Some circuits apply the same specific factors to each case, (43) and others view each case individually. (44) The federal circuits, in particular, have struggled with the situation where a police officer told the consenter that the officer would return with a search warrant if he refused to consent. (45)

This Note argues that it is deceptive and coercive for an officer to make a search warrant statement while requesting consent, and therefore the resulting search violates the Fourth Amendment. It further argues that courts should have the broader goal of limiting consent searches, or at least not encouraging them, and therefore should prohibit the deceitful police tactic of making such statements. Part I asserts that courts should disfavor consent searches because they too closely resemble the general warrants that the Fourth Amendment seeks to prohibit. Moreover, the scope of a consent search is considerably broader than a warrant search, and therefore significantly impacts the privacy interests of the consenter. Part II argues that courts should consider deceitful police practices when determining the voluntariness of consent because deception represents the police overstepping their authority. Part III explains that the promise of a search warrant is deceptive and therefore should invalidate consent because the promise misinforms the consenter of his rights. This Note concludes that courts should not permit a search warrant statement unless it is part of a comprehensive statement of the consenter's rights under the Fourth Amendment.

1. CONSENT SEARCHES V. WARRANT SEARCHES

   This Part argues that consent searches resemble general warrants in that they are left to the discretion of the police office, and have almost limitless scope. The drafters of the Fourth Amendment sought to prohibit general warrants, which permitted indiscriminate searches. (46) Consent searches, like general warrants, allow the police almost limitless discretion of who to search, and a wide scope of where to search. (47) Consequently, just as the Fourth Amendment put an end to general warrants, it should constrain the use of consent searches. Section I.A argues the similarity between general warrants and consent searches. Section I.B explains the differences between consent searches and warrant searches.

   1. General Warrants

      The Fourth Amendment protects individual privacy by...