Consent Searches

As long as police do not coerce the citizen into agreeing to the request, the suspect's ignorance of his rights was law enforcement's bliss. After all, the Court said, it was important that police be able to do warrantless searches without probable cause or any evidence at all. This statement still seems remarkable today, given that anyone with even the most rudimentary knowledge of Fourth Amendment requirements would surely consider fact-based suspicion of criminal wrongdoing the very heart of constitutional protection against law enforcement intrusion, a sentiment dating all the way back to the revolutionary era. Nowhere was this increase in police discretion with regard to searches and seizures more noticeable than in the area of law enforcement power over drivers and vehicles.

David Harris, (Prof., Law, U. Toledo College of Law), ST. LOUIS U. PUBLIC LAW REVIEW, 2003, 75-76

Resolved: That the United States federal government should substantially decrease its authority to either search without probable cause or detain without charge.

Definitions are available upon request of the negative team.

OBSERVATION ONE

A. LACK OF INFORMED CONSENT ALLOWS EXCESSIVE SEARCHES WITHOUT PROBABLE CAUSE

What the Supreme Court does not seem to recognize is the coercive element involved in a police officers request to search during a traffic stop. With the consensual search technique, police can easily use routine traffic stops as tools for drug enforcement. All the officer needs to do is to ask, "Just one more thing. You don't have any drugs or guns in that gym bag, do you?" If the answer is "Yes," the officer has probable cause to search. When the answer is "No," the officer replies, "Then you wouldn't mind if I took a look in there, would you?" The driver can hardly refuse. An average driver would probably not believe that he or she has the right to decline the officer's request, absent a statement from the officer that the motorist is free to go. In effect, the officer's authority to stop a vehicle implies to the motorist the officer's authority for a search. As Justice Thurgood Marshall argued, "consent is ordinarily given as acquiescence in an implicit claim of authority to search. " The consent doctrine left in the wake of Whren and Robinette effectively equates the authority to stop with the authority to search.

Chris K. Visser, JD candidate, HOUSTON LAW REVIEW, Spring 1999, p. 1721-2.

B. CONSENT SEARCHES ARE PERVASIVE AND ERODE FOURTH AMENDMENT RIGHTS.

Consent is an acid that has eaten away the Fourth Amendment. It allows police to "fish" for evidence without any suspicion whatsoever. One police detective said that as many as ninety eight percent of the searches he conducts are consent searches. That might be an exaggeration--I know of no data on this point--but it is no exaggeration that police routinely request consent. In the last few years, we have seen a lot of evidence that the consent "fishing pond" is well stocked with fish. Almost everyone gives consent when asked by police, and, surprisingly, a large percentage of guilty suspects consent to the very search that will turn up evidence against them.

George Thomas III, Professor of Law at Rutgers University, MISSISSIPPI LAW JOURNAL, 2003, p. 541-2

C. MOST PEOPLE CONSENT BECAUSE THEY FEAR COERCION OR BECAUSE THEY ARE UNAWARE OF THEIR RIGHT TO REFUSE.

The survey of people stopped and asked for consent presents a crucial new dimension to the research. Fear emerges as a primary motivation to consent. As Lichtenburg summarized: Consent was not contingent upon the number of persons present; the number of demands [unrelated to consent] the police officer forced the subject to comply with prior to the request for consent; the number of questions asked from the inception of the stop; whether the subjects felt they had to respond to the request for consent immediately; whether the subject was in a rush; the subject's education or employment. Also contrary to prediction, subjects were able to articulate why they gave consent.... People consented to search for one primary reason: fear of reprisal if they refused. Most were unaware of their legal right to refuse. Those subjects who understood they could refuse expressed virtually no faith in the law being followed by the police.

Steven Chanenson, Assistant Professor of Law at Villanova, UNIVERSITY OF TENNESSEE LAW REVIEW, Spring 2004, p. 453-4.

OBERVATION TWO

A. THE SUPREME COURT IS A BAD ACTOR FOR CHANGES TO CONSENT LAWS

Despite the judicial reputation for active defense of individual rights, it seems unlikely that the courts will provide the forum, at least in the short term, for significant change in the area of consent searches. The law of consent searches is well entrenched, with the Supreme Court sticking to the same general script for thirty years. Under such circumstances, only particularly persuasive empirical research will move the Courts doctrine.

Steven Chanenson, Assistant Professor of Law at Villanova, Spring 2004. UNIVERSITY OF TENNESSEE LAW REVIEW, Spring 2004, p. 460

B. STUDIES HAVE SHOWN THAT NEARLY 90 PERCENT OF PEOPLE GIVE CONSENT

As part of his doctoral discretion, Professor Illya Lichtenburg examined records of consent searches in connection with highway traffic stops in Maryland and Ohio. He relied on official records completed by law enforcement officers in both states; the records were supposed to cover all instances were officers requested to search an automobile. Lichtenburg also conducted a survey of some individuals stopped in Ohio. Lichtenburg found that 89.3% of the 9028 that were asked for consent granted consent. "Demographic characteristics, age, race, and sex had virtually no effect on rates of consent." Although limitations in the available data resulted in ambiguities, Lichtenburg estimated that police found