78 Pages Posted: 23 Apr 2004
In the wake of the recent Supreme Court case United States v. Drayton, this article dissects the current jurisprudence regarding consensual searches, which seems to be disconnected from the practical reality of a police/civilian interaction. My thesis is that we need a new paradigm for evaluating these searches, both to assist courts in judging the validity of consent, and also to better understand how courts are arriving at the decisions that they make. Under the old paradigm, courts have been using the "voluntariness" paradigm, derived from the Due Process clause, which (in theory) looks to the subjective state of mind of the individual being searched to determine whether the consent was "voluntary."
I argue that this paradigm is clumsy and fails to capture the critical nuances of the interaction between the police and civilians. It is so unworkable that the Supreme Court has already begun using a different test in practice, even as it maintains the rhetoric of "voluntariness." I therefore propose that we adopt a "compulsion" paradigm, based on the reasonableness standard of the Fourth Amendment. Under this new paradigm, the court would conduct a purely objective inquiry into the conduct of the law enforcement official. As part of the inquiry, the court would examine the degree of compulsion that was applied and also evaluate the types of compulsion used by the law enforcement officer. I justify my theory through an examination of the consent searches jurisprudence, a comparison with the voluntary confession jurisprudence, and a review of psychological studies on obedience to authority.
Keywords: Drayton, search, Sixth Amendment, compulsion, obedience, Milgrom
JEL Classification: K14, K42
Suggested Citation: Suggested Citation
Simmons, Ric, Not 'Voluntary' but Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine. Indiana Law Journal, Vol. 80, 2004. Available at SSRN: https://ssrn.com/abstract=533162