Why Abolishing the Fourth Amendment Consent Exception is Long Overdue

Photo by TJ Kiely on Flickr

Drew Lance, Associate Member, University of Cincinnati Law Review

I. Introduction

The Fourth Amendment is clear—“the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.”[1] Yet the Supreme Court has carved out a niche that renders the amendment nearly impractical in most encounters with police.

Warrantless searches are presumed unreasonable unless they fall under certain exceptions,[2] but most searches fall under the consent exception.[3] Nearly 50 years ago, the Supreme Court established that consent to search must be voluntary.[4] Despite a wealth of caselaw, the application of the test is still unclear. Most people are not aware they can refuse police, much less how to determine an officer’s actual legal authority to search in an encounter. Given the imbalance of power, knowledge, and authority that police have, it is questionable whether or not a functional way to exercise that right always exists when police exert apparent legal authority to search.[5] One only has to look to the prevalence of granted consent in traffic stops for this conclusion.[6]

The spectrum of the Fourth Amendment is divided into different parts. On one end are the searches conducted pursuant to valid warrants, and on the other end are searches conducted pursuant to exceptions like emergency circumstances, officer safety, and automobiles,[7] which are all subject to their own standards of proof. In the middle, where police authority is debatable or nonexistent, lies consent searches.

People have a natural inclination to comply[8] with authority when demanded, suggested, or implied.[9] Police have a well-documented imbalance of power,[10] so even when the intent is a legitimately optional request, this may be perceived as an obligation.[11] Voluntary consent searches may occur during routine police activity, but even normal police practice is not immune from critique.[12] Courts have traditionally viewed voluntary searches through a different lens than the common understanding of what is “voluntary”;[13] however, the ability to practically deny police when they want to search is a privileged perspective that does not take into account the reality of the social relationship between other groups and police.[14] The purpose of this article is to argue for removing this exception as a giant step towards a fairer criminal justice system.

II. Background

Schneckloth is the seminal Supreme Court decision that established the balancing test for voluntary consent as an exception to the Fourth Amendment.[15] This totality of the circumstances test considers factors such as youth, intelligence, knowledge of rights, and the questioning and detention by police.[16] No single factor is controlling or dispositive,[17] nor is custody even a bright line rule for involuntary consent.[18] The Supreme Court in 1996 also confirmed that police are not constitutionally required to inform people of their right to refuse consent searches.[19] A small minority of states and agencies, however, have implemented this protection.[20] In theory, the burden is on the state to prove consent was voluntary,[21] but in practice, this is treated as a rebuttable presumption in favor of the state, and courts rarely analyze the factors of the voluntariness standard.[22]

Schneckloth provided two situations where consent is more likely to be involuntary: coercion and acquiescence.[23] Courts often acknowledge blatant examples of coercion,[24] but they can also consider “subtly coercive police questions” and “forms of coercion that may flaw an individual’s judgment.”[25] Consensual encounters usually do not invoke Fourth Amendment inquiries because those are situations where a reasonable person would feel free to “disregard the police and go about his business.”[26] Coercion is often evaluated by asking whether a reasonable person would feel free to terminate the encounter.[27] Because the test is still based on the totality of the circumstances, a finding of subtle coercion or that a person would not actually feel like they could leave does not necessitate a finding of involuntary consent. Further, the Sixth Circuit requires more than a subjective belief of coercion, but some improper action by police.[28]

Prior to Schneckloth, the Supreme Court in Bumper v. North Carolina established that consent is not considered freely and voluntarily given when it is an acquiescence in response to a claim of lawful authority.[29] For example, when an individual responds that declining consent is pointless: “You’ve got the badge. I guess you can.”[30] However, when police express threats to seek warrants or other lawful measures, courts usually will not invalidate the consent.[31] Even if the person declines consent, follow up statements intended to change the decision are permissible; “He’s going to search your room whether you let him or not. He gets a search warrant, it’s not going to be a problem. And he said it would be just a whole lot easier for you and us if you—if you consented to the search.”[32]

The disconnect between the courts’ perspective on voluntariness and the common perception of “voluntary” frustrates many defendants and attorneys because the issue is difficult to predict. Though the Sixth Circuit has said police may not use overbearing tactics,[33] the First Circuit has said that even in a situation where police drew guns on a suspect, because the suspect was not a newcomer to the law, the consent was voluntary.[34] In situations where police have questionable probable cause or reasonable suspicion,[35] especially in traffic stops, an officer might seek consent to search anyway as a backup.[36] When the case comes before a judge, the consent issue controls, meaning it may no longer be necessary to prove the initial justification to search.

III. Discussion

Consent searches have three main problems, two of which have already been discussed in more detail in other articles.[37] “Consent” discounts the tendency to comply with authority and follow social norms when dealing with an authority figure such as police.[38] Most people are left in the dark about their right to refuse to consent to police searches because police are not required to advise them of their rights beforehand. From the beginning, a minority of judges have questioned this consent standard and asked how a citizen can “meaningfully be said to have waived something as precious as a Constitutional guarantee without ever being aware of its existence?”[39]

The first two problems, in addition to standard police practices, create an environment where the courts, under the guise of “voluntary consent,” have given the state freedom to disregard the purpose of the Fourth Amendment of protecting against unreasonable searches. Essentially, consent is used as a shortcut justified as more effective police work, but this advantage gained by the police is “at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior.”[40]

Coercion has a negative connotation, so it is associated with negative actions. That is likely why courts often look for improper acts or some kind of misconduct. However, this encourages courts to overlook the inherent coerciveness that comes with being a police officer, an agent of the state, and the authority such a position commands.[41] Because normal police practices are not viewed as improper, courts don’t regard them as coercive. But it is irrational to suggest that the presence of an officer does not persuade, induce, or otherwise lead someone to comply with their commands even if the officer is completely calm or polite.[42]

Additionally, analyzing coercion using the reasonable person standard is another legal fiction disconnected from reality. When an officer is seeking consent to search, some type of investigation is underway, and a normal person is not going to feel like they can just leave for fear of some kind of retaliation, expressed or implied, and legal or otherwise.[43] This standard also ignores that given some officers’ predisposition to violence, that certain groups like Black men are more likely to feel like they must agree with the officer no matter the request for fear of their own safety—a feeling most judges probably would not relate to.[44] The claim that anyone, especially marginalized groups, can truly just say “no” is a “sorry, empty slogan.”[45] The number of situations where consent is actually and objectively voluntary is an exceedingly smaller number than the present amount under the Court’s current definition.

Consent has been found to be voluntary in situations that, when considered in light of the Schneckloth test, do not reach reasonable conclusions. In Lopera v. Town of Coventry, after a high school soccer a match, a mob gathered around the visiting team’s bus and accused various players of theft. Police cars blocked the bus from leaving. Though the officers requested consent to search the bus politely, the reality was that the bus could not leave without complying with the police. Despite this, the majority found the consent voluntary.[46]

Traffic stops are where many people will encounter these requests from police,[47] but even the routine cases show some of the problems with relying on consent to justify searches. In State v. Pooler, police pulled over a car with no license plate and expired registration. The officer wanted to search because the driver was previously arrested for having a gun in his vehicle and the officer observed loose ammo in the car. The officer requested to search and the driver said to “go ahead and check” while getting out of the car.[48] The court rejected the driver’s arguments that a traffic stop was not consensual and that he did not know he could refuse the officer’s request.[49] It found the consent to be voluntary.[50] Notably, the lower and appellate court described how the driver got out of the car and discussed football with the officers, but the opinion never discussed probable cause, reasonable suspicion, or the automobile exception.[51]

The driver in Pooler forgot about the gun, so the lack of informed choice influenced the outcome. One might defend this court by asserting that innocent people may have no problem waiving their rights, but the line between innocent and guilty is often vague. Anyone might look disingenuous when the court begins framing actions as someone “spontaneously remark[ing] that he had forgotten about the gun.”[52] Some crimes are strict liability, where mental state can be irrelevant, so Constitutional Rights and due process should be preserved even in cases like Pooler. Even if the memory lapse was not genuine, and if the courts presume a rational person, why would anyone ever consent to that search if they thought it was an option? A prosecutor could probably make a decent, if not winning, probable cause argument based on the facts in Pooler that the officer could have searched anyway, but because the court never considers this in the opinion, the mere request for consent discharges that Fourth Amendment requirement. This case shows how even in situations where someone likely gave free and voluntary consent, whether from lack of knowledge about their rights or unaware of their present guilt, the inherent coercion behind the request renders the protections of the Fourth Amendment an afterthought in a situation where it did not need to be.

The Supreme Court decided that it is impractical to inform the consenting party of the right to refuse because it is unrealistic to inform people of the right.[53] Yet it is questionable that the burden to bear the consequences of that impracticality should fall on the consenting party. If an officer has the time to ask multiple times for consent, some of that time could be used to merely attempt to explain the right. It is the most commonly used tool for warrantless searches, but just because it is a widely used practice does not shield it from Constitutional criticism. “Practicality” is really the desire to allow police to continue to capitalize on the ignorance of citizens to accomplish their police work by deceit, no matter how minor, unintentional, or institutionalized the practice.[54]

In theory, under Miranda, once those rights attach, any questioning or interrogating directed at getting information is a violation, even if said pleasantly or with a smile. The Supreme Court has justified this consent standard by claiming there is a vast difference between the criminal trial and rights protected by the Fourth Amendment; they were worried about thwarting police efforts.[55] The difference should be that Fourth Amendment rights are automatic; they don’t attach when in the adversarial environment like the Fifth Amendment. This justification by the Court dismisses the dispositive connection evidence can have to a case and denies a “knowing and intelligent” waiver because it might limit the police’s expected efficiency. Therefore, it cannot be permissible to allow police to not inform people of their right to refuse consent then use the coercive power of the state to pressure people into dismissing their rights.  For a court to assert compliance was optional after the police benefit from that imbalance of power, is lacking perspective and justice.

The rights in the Constitution must have associated protections that give weight and functionality to them.[56] This is necessary to “insure that what was proclaimed in the Constitution had not become but a ‘form of words.’”[57] The consent to search obtained by state cannot be examined by voluntariness factors or what the theoretical reasonable person would do because it does not truthfully answer the question.[58] Either the state has the legal authority or they do not, but if it can use its natural and inherent authority to induce waiving the right like in the examples above, how useful are the right’s protections? To allow the state to disregard at will the requirements to search makes the Fourth Amendment merely subject to the grace of the state. The layperson cannot be expected to make this impulsive guess regarding the police’s authority and risk the legal and safety consequences of such an act without at the very least knowing this is a Constitutional right and be permitted, practically, to exercise it. The Amendment should be used to protect the state from its own self-interest instead of supporting an unjust legal standard that hardly considers whether someone truly felt like refusal was a viable option. Any activity or words spoken in furtherance of attempting to garner consent should be a violation of the Fourth Amendment[59] when outside of the clearly delineated non-consent exemptions and citizen-initiated requests[60] similar to the suspect-initiated statements in Miranda situations.

IV. Conclusion

Consent can no longer be the widely used Fourth Amendment shortcut to which agencies have become accustomed. The pressures of compliance, the lack of knowledge of the right, the wide range of innate and explicit coercion, and the ineffective legal tests should render consent incapable of being voluntary when police seek to evade the requirements of the Fourth Amendment.

It is not enough to merely create a more friendly consent standard because an overwhelming number of cases will still end in a guilty plea despite the weight of the evidence or factors that might suggest consent was involuntary. The reality is that by virtue of obtaining evidence in this manner, most people are going to be subject to a conviction. The problem is not just the legal standard, but the practice of continuously stretching the boundaries of the Fourth Amendment. Modern police encounters subject more people to criminal consequences than should be permitted under the Constitution through use of the required procedural steps.

Of course, the Amendment does not forbid the state from any investigation to initiate criminal proceedings, but the Constitution clearly lays out that warrants are required, and the Supreme Court created certain exceptions. The state does not have a compelling interest in shorting the Fourth Amendment in routine investigations purely for efficiency, situations where the Fourth Amendment implicates the state following such a procedure. Even without the consent exception, police should still act cordially when proceeding with a search, but the courts should continue to uphold the other restrictions of the Fourth Amendment, because it is not actually limiting the government if the state merely has to obtain the magic words. Many people will probably still be searched, for example, under the automobile exception, but at least now they might have a more realistic chance in the court system without having to overcome the voluntary consent fiction.

[1] U.S. Const. amend. IV.

[2] Coolidge v. New Hampshire, 403 U.S. 443 (1971).

[3] Roseanna Sommers and Vanessa K. Bohns, The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance, 128 Yale L.J. 1962, 1966 (2019) citing Ric Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 Ind. L.J. 773, 773 (2005) (“Over 90% of warrantless police searches are accomplished through the use of the consent exception to the Fourth Amendment.”).

[4] Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

[5] See generally Ohio v. Robinette, 519 U.S. 33, 40-41 (1996).

[6] See Janice Nadler & J.D. Trout, The Oxford Handbook of Language and Law 326, 327 (2012, Peter M. Tiersma & Lawrence M. Solan); See also https://idot.illinois.gov/Assets/uploads/files/Transportation-System/Reports/Safety/Traffic-Stop-Studies/2015/2015%20ITSS%20Statewide%20and%20Agency%20Reports.pdf.

[7] Missouri v. McNeely, 569 U.S. 141 (2013); Terry v. Ohio, 392 U.S. 1 (1968); Carroll v. United States, 267 U.S. 132 (1925).

[8] Sommers, supra note 3, at 1993-2000.

[9] See generally Nadler, supra note 6, at 332-33.

[10] Miranda v. Arizona, 384 U.S. 436, 461 (1966) (describing how a suspect in a police station may be subject to persuasion).

[11] See Nadler, supra note 6, at 334.

[12] Ethan Boldt and Michael Gizzi, The Implementation of Supreme Court Precedent: The Impact of Arizona v. Gant on Police Searches, 6 U.Chicago J.L.C. 355 (2018) (“In 2009, the US Supreme Court handed down a decision that directly influenced vehicle search practices police had relied upon for almost 30 years”).

[13] United States v. Vanvliet, No. 02-10362-NG, LEXIS 33451, 3 (D. Mass. Aug. 30, 2004) (“But the legal standard for ‘consent to search’ is not the same as the lay understanding of this concept”).

[14] See Nadler, supra note 6, at 326-27.

[15] Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

[16] Id.

[17] Id.

[18] United States v. Watson, 423 U.S. 411, 424 (1976).

[19] Ohio v. Robinette, 519 U.S. 33, 39-40 (1996).

[20] Alexandra L. Pratt, Note, The need for “knowing” why the Iowa supreme court should reject Schneckloth v Bustamonte. 100 Iowa L. Rev. 1327, 1340 (2015) (Arkansas, Mississippi, New Jersey, and Washington have some knowing standard as a determinative criterion to determine the voluntariness of consent).

[21] Schneckloth, 412 U.S. at 248-49.

[22] Pratt, supra note 20, at 1350 (“…One scholar noted that ‘out of hundreds of decisions,’ only a few ‘analyzed the suspect’s particular subjective factors.’ Instead, courts often deem consent ‘voluntary’ notwithstanding the particular characteristics of a suspect.”).

[23] Schneckloth, 412 U.S. at 233.

[24] See United States v. Ivy, 165 F.3d 397, 403 (6th Cir. 1998); See United States v. Tatman, 397 F.App’x 152, 166 (6th Cir. 2010); see also Marcy Strauss, Reconstructing Consent, 92 J.Crim.L.Criminology 211, 225 (2001) (“cases typically involve four types of recurring events that lead to involuntary consent; threats to suspect or family, deprivation of necessities until compliance, asserting an absolute right to search, and an unusual and extreme show of force.”).

[25] United States v. Watson, 423 U.S. 411, 424 (1976) contra Florida v. Royer, 460 U.S. 491, 507-08 (1983) (finding an illegal detainment tainted the consent).

[26] California v. Hodari D., 499 U.S. 621, 628 (1991).

[27] The case that is usually cited for this is Florida v. Bostick, 501 U.S. 429, 439-440 (1991).

[28] United States v. Crowder, 62 F.3d 782, 787 (6th Cir. 1995).

[29] Bumper v. North Carolina, 391 U.S. 543, 548-550 (1968) (finding improper a search based on consent given after an officer claimed to have a warrant which was actually invalid); See also Orhorhaghe v. INS, 38 F.3d 488, 500 (9th Cir. 1994) (“It is well established that there can be no effective consent to a search or seizure if that consent follows a law enforcement officer’s assertion of an independent right to engage in such conduct.”).

[30] United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999).

[31] See United States v. Blanco, 844 F.2d 344, 351 (6th Cir. 1998).

[32] United States v. Salvo, 133 F.3d 943, 954 (6th Cir. 1998); See also United States v. Watson, 117 F.3d 1421 (6th Cir. 1997) (unpublished disposition) (“Notifying a person that a warrant can be obtained does not render consent involuntary unless the threat to obtain the warrant is baseless.”).

[33] See United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005).

[34] See United States v. Barnett, 989 F.2d 546, 556 (1st Cir. 1993).

[35] However, consent may be invalid when the seizure is improper. See Florida v. Royer, 460 U.S. 491, 507-08 (1983).

[36] Daniel Rotenberg, An Essay On Consent(less) Police Searches, 69 Wash. U. L. Rev. 175, 190 (1991) (California Attorney General’s Office’s advice to “always ask for consent to search even when you have other authority for the search.” Article also notes that some departments like Philadelphia prohibit the practice at least in 1991).

[37] See Sommers, supra note 3, at 1966; See Nadler, supra note 6, at 326; See Straus, supra note 24, at 211; See Pratts supra note 20, at 1327; See Rotenberg, supra note 36, at 175.

[38] Sommers, supra note 3, at 1981-92.

[39] Schneckloth v. Bustamonte, 412 U.S. 218, 277 (1973) (Brennan, J., dissenting).

[40] Id. at 288 (Marshall, J., dissenting).

[41] See Rotenberg, supra note 36, at 187-89; See also Straus, supra note 24, at 268.

[42] See Daniel Williams, Misplaced Angst: Another Look at Consent Search Jurisprudence, 82 Ind. L. J. 69, 41-42 (2007); see Straus, supra note 24, at 235 (“the voluntariness standard could still be criticized for ignoring the most significant factor of all: the inevitability that individuals will feel coerced simply by virtue of dealing with an authority figure like the police”).

[43] Utah v. Strieff, 136 S. Ct. 2056, 2069-2070 (2016) (Sotomayor, J., dissenting) (describing the possible humiliation and detrimental impact from refusing a consent request).

[44] See Straus, supra note 24, at 213.

[45] Id. at 244.

[46] Lopera v. Town of Coventry, 640 F.3d 388, 404-05 (1st Cir. 2011) (Thompson, J., dissenting) (ultimate issue in the case was qualified immunity related to the officer’s knowledge of the Fourth Amendment question).

[47] Nadler, supra note 6, at 327-28.

[48] State v. Pooler, 2021-Ohio-1432, ¶ 3 (Ohio Ct. App.).

[49] Id. at ¶ 9.

[50] Id. at ¶ 10.

[51] Id. at ¶ 8-10.

[52] Id. at ¶ 4.

[53] See Ohio v. Robinette, 519 U.S. 33, 40 (1996).

[54] See Schneckloth v. Bustamonte, 412 U.S. 218, 288 (1973) (Marshall, J., dissenting).

[55] Straus, supra note 24, at 219-221.

[56] See generally Roe v. Wade, 410 U.S. 113, 152 (1973).

[57] Miranda v. Arizona, 384 U.S. 436, 444 (1966) citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).

[58] See generally United States v. Tanguay, LEXIS 63839, 34 (D.N.H 2017) (the fact that suspect was in custody was not enough by itself to render consent involuntary, it merely “raised a sensitivity to the heightened possibility of coercion”).

[59] Schneckloth, 412 U.S. at 228 (“For, no matter how subtly the coercion was applied, the resulting “consent” would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. In the words of the classic admonition in Boyd v. United States, 116 U.S. 616, 635”).

[60] Rotenberg, supra note 36, at 192 (a request from the individual to the police).

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