Abolishing Police Consent Searches Through Legislation: Lessons from Scotland

57 Pages Posted: 4 Jan 2024 Last revised: 16 Feb 2024

See all articles by Josephine Ross

Josephine Ross

Howard University School of Law

Date Written: August 24, 2023

Abstract

Why have U.S. civil rights organizations omitted the abolition of consent searches from the panoply of recommended police reforms? As over 90% of all searches of cars and pedestrians in the United States are based on consent, this begs the question. The Supreme Court created the consent loophole so that police who lacked probable cause could nevertheless search pockets and cars. In the American context, consent searches bolster racial profiling and enable police harassment.

Americans do not have to wait for the Court to change the law. States and cities have the power to close off this loophole through legislative action. In this regard, the Scottish Parliament provides an illuminating example. Scotland faced a problem with excessive stop-and-search, a practice resembling stop-and-frisk in the United States. Responding to the abusive over-policing, Scotland applied a legislative fix in 2016 that eliminated police consent searches. Harassment immediately decreased, with stops and searches falling from 600,000 stops per year to 40,000 in the first year after the law was enacted. Voluntary consent is an oxymoron in the United States, as it was in Scotland.

This Article looks at the current law reform efforts on consent searches in the United States, argues that state legislatures should follow Scotland's example, and offers model legislation. Except where legal counsel provides advice on the waiver of rights, legislation should prevent the searches of bodies, cars, and homes based merely on a subject's cooperation with the police.

It builds on "A Feminist Critique of Police Stops" (see book introduction posted on SSRN)

Keywords: consent searches, racial profiling, police reform, legislation, criminal justice, stop and frisk, search and seizure, Fourth Amendment, comparative law, Scottish law, UK, law enforcement, Black Lives Matter

Suggested Citation

Ross, Josephine, Abolishing Police Consent Searches Through Legislation: Lessons from Scotland (August 24, 2023). American University Law Review, Vol. 72, No. 2017, 2023, Available at SSRN: https://ssrn.com/abstract=4679970

Josephine Ross (Contact Author)

Howard University School of Law ( email )

2900 Van Ness St., N.W.
Washington, DC 20008
United States

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