Consent to Search by Ignorant People

Abstract:     
It is bewildering that a doctor cannot invade the privacy of a person without informed consent, yet a police officer needs only consent-submission without physical coercion or apparent threat of physical coercion. Thus, the phrase "consent to search by ignorant people" is a construction designed to challenge the single-factor standard of voluntariness as a permissible basis for relinquishing constitutional rights.

This essay, initially presented at a panel discussion hosted by the Texas Tech University School of Law, first explains the law of consent searches. The essay then analyzes waiver, voluntariness, and the relinquishment of Fourth Amendment rights through a deconstruction of the Supreme Court's holding in Schneckloth v. Bustamonte. There, the Court held that police were not required to notify suspects of their right to refuse consent during the consent interrogation for suspects to effectively relinquish their Fourth Amendment protections. The essay then analyzes the role of state courts and their interpretation of their constitutions as it relates to consent searches.

Keywords: Consent to search, waiver, Fourth Amendment

JEL Classifications: K14

Accepted Paper Series