59 Pages Posted: 10 Feb 2003
Consent searches reportedly comprise a vast proportion of government searches. The use of consent searches allows the police to uncover contraband in situations where there is otherwise no lawful basis for conducting a search. The Court's most recent pronouncement about the bounds of consent came this past term in U.S. v. Drayton, in which police boarded a Greyhound bus and asked passengers' permission to search their bags and their persons. Given the enormous practical value of consent in Fourth Amendment jurisprudence, it is not surprising that the Court repeatedly has interpreted freedom to refuse police requests to search very broadly. What is troubling, however, is the ever-widening gap between Fourth Amendment consent jurisprudence, on the one hand, and scientific findings about the psychology of compliance and consent, on the other. Ever since the Court first applied the totality of the circumstances standard to consent search issues, it has held in case after case (with only a couple of exceptions) that a reasonable person in the situation in question would feel free to refuse the police request to search. By contrast, empirical studies over the last several decades on the social psychology of compliance, conformity, social influence, and politeness have all converged on the same conclusion: our freedom to refuse to comply under situationally-induced pressures to do so is extremely limited. These situational pressures often are imperceptible to observers; at the same time they can be so overwhelming that attempts to reduce them with prophylactic warnings are insufficient.
In light of mounting empirical evidence, it is remarkable that the totality of the circumstances standard has nearly always led the Court to the conclusion that a reasonable person would feel free to refuse the police request to search. Consent search doctrine is now at a point where the Court's reasoning must struggle against scientific findings about compliance, and against common sense. Thus, the Court's consent doctrine has devolved into a fiction of the crudest sort - a mere device for attaining the desired legal consequence. This has led to suspicionless searches of many thousands of innocent citizens who consent to searches under coercive circumstances. Perhaps the systematic suspicionless searching of innocent citizens is a worthwhile price to pay in exchange for effective law enforcement, but the Court has not engaged in this analysis in any of its Fourth Amendment consent search or seizure cases. Incorporation of empirical findings on compliance and social influence into Fourth Amendment consent jurisprudence would help to dispel the air of unreality that characterizes current doctrine.
Keywords: search, seizure, Fourth Amendment, consent
Suggested Citation: Suggested Citation
Nadler, Janice, No Need to Shout: Bus Sweeps and the Psychology of Coercion. Supreme Court Review, Vol. 202, pp. 153-222, 2003; Northwestern Law & Econ Research Paper No. 03-01; Northwestern Public Law Research Paper No. 03-01. Available at SSRN: https://ssrn.com/abstract=373604 or http://dx.doi.org/10.2139/ssrn.373604