Reconstructing Consent
Posted: 23 Oct 2001
Date Written: October 2001
Abstract
In this article I critically examine the current rules governing consent searches under the Fourth Amendment and suggest a drastic revision of the laws regarding "voluntariness." There are three main flaws in the law of voluntariness. First, the law of consent is unclear and misguided. The subjective perspective of the suspect is almost invariably ignored by the courts. Moreover, recent Supreme Court decisions cast doubt on whether a subjective or objective perspective is appropriate, leaving the current test in flux. Second, courts assessing the voluntariness of consent fail to consider the reality that most people feel compelled to allow the police to search, no matter how politely the request is phrased. Such feelings of compulsion are particularly experienced by members of certain racial and cultural groups who fear confrontation with the police. Third, and finally, the current doctrine of consent inherently fosters distrust of police officers as well as the judicial system. Establishing consent relies on a process that at its worst encourages police perjury, and at its best, unconscious distortion of the facts by officers recalling the event. Judges frequently are forced to either acknowledge the perjury or look the other way.
After considering each of these criticisms of the consent doctrine, I analyze a variety of proposed solutions. Specifically, I ask the question: why not eliminate consent searches? Although I conclude that there is strong theoretical and analytical support for such a position, I recognize that the courts are not likely to abandon the consent doctrine. Accordingly, less drastic alternatives that might make the law of consent conform to the normative goal of ensuring that a search is the product of a person's free and unrestrained choice are discussed.
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