Reason laments the use by law enforcement of consent searches to evade the Fourth Amendment’s requirement of probable cause to search or seize:
The other day, the American Civil Liberties Union of Illinois issued a report on “consent searches” that sometimes accompany traffic stops. Relying on data provided by local and state law enforcement agencies, the report documented that black and Hispanic drivers are much more likely than whites to suffer such invasions—even though the cars of minorities are far less likely to yield contraband.
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But the term is fantastical in these instances. Stopped on a lonesome stretch of highway, at the mercy of an armed man who has the power to arrest, very few citizens feel free to refuse. The Illinois State Police report that 94 percent of white motorists and 96 percent of minority ones “consent” to such searches.
The piece was fine as far as it went and should be considered required reading. I have previously argued, as the piece does, that the best and easiest solution would be a Miranda-style warning prior to asking for consent to conduct a criminal search: “You have the right to refuse to consent this search. Your refusal cannot and will not be used be used against you in a court of law.” Etc.
I had only one minor quibble before picking up the baton, as I noted in a comment at Reason:
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They take place only when the police officer has no grounds for suspicion. If he has probable cause, he doesn’t have to ask. Only when he’s acting out of a vague hunch, racial prejudice, or simple malice does he need the driver’s consent.
The flowchart doesn’t even have to be that complicated. A search predicated upon “probable cause” is still subject to attack, at both a preliminary hearing before the trial and upon appeal after conviction. A consent search cannot be challenged after the fact (except to insist that consent was in fact not voluntary).
Bottom line: The police will always — always — ask for consent in such circumstances, even if they believe they have p.c. to search anyway.
Meanwhile, the reasoning in the recent Supreme Court case Brendlin v. California is helpful: It is absurd to suggest that a lay person knows when she is or is not free to walk away from a police officer.
The police cannot simply insist that such a person ought to know that he is not “seized” for Fourth Amendment purposes. If a person reasonably thinks he is “seized,” then he is in fact seized, even if the law says he actually isn’t.
The same reasoning ought to apply to consent: If a reasonable person thinks he is not free to refuse to consent, then he is in fact unable to consent.
Maybe one day the Court will agree. Alas, today is not that day.
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Remember: Never, ever, consent to a search by law enforcement in a criminal context.
