A Wolf in Sheep's Attire: How Consent Enfeebles Our Fourth Amendment

Abstract

The Fourth Amendment is a mirage. On paper—in the rules studied by law students, analyzed by scholars, and proclaimed by jurists—its limitations are many and, oftentimes, significant. Yet the experience of large numbers of Americans is entirely to the contrary, thanks to the rights-annihilating, under-theorized exception of “consent.” Under its guise, law enforcement officers routinely conduct what would otherwise be constitutionally-restrained searches and seizures, and they do so without meaningful explanation or assent. Fortunately, change—whether legislative or (ideally) constitutional—could be straightforward. Thanks to other sufficient triggers, consent could be replaced by a narrow, rights-protective doctrine under which law enforcement could continue to accomplish its aims—and in a more fair and evenhanded manner—and that would produce public data that could be mined for evidence of bias or manipulation. In this Article, then, we make the case for the abolition of Fourth Amendment consent except as an emergency doctrine, a move that would improve policing and restore an intended measure of human dignity and autonomy to the people.

Keywords: criminal procedure, Fourth Amendment, consent search, consent, warrant requirement, warrant, criminal law, coercion

JEL Classification: K14, K40, K42