This particular exception to the Fourth Amendment requirement for a warrant originated with the U.S. Supreme Court’s decision in Schneckloth v. Bustamone, 412 U.S. 218 (1973). The Court held that “consent” alone is a legal basis for a search, even if the person searched is not aware of their right to refuse. And unlike Miranda warnings regarding a person’s right to remain silent, police are not required under federal law to notify the person about their right to deny consent.
In his dissent to the Schneckloth decision, Justice Thurgood Marshall presciently stated: “All the police must do is conduct what will inevitably be a charade of asking for consent. If they display any firmness at all, a verbal expression of assent will undoubtedly be forthcoming.”
Recent data illustrate our failure to grasp the coerciveness of such encounters.
A 2019 study published in the Yale Law Journal, titled “The Voluntariness of Voluntary Consent,” ran two scenarios for comparison. In one scenario, researchers asked a participant if a hypothetical reasonable person would agree to unlock their cellphone for a search. The participants were not themselves asked to permit the search but asked whether a third party should allow one. Of two groups of 100 persons each, 86% and 88% predicted that a reasonable person would refuse to grant consent.
The same study compared two other cohorts of 100 persons, but this time, researchers asked the participants to unlock their own phone and allow it to be searched. Compliance was 97% in one group, and 90% in the other.
This observed difference, between the anticipated behavior of another person and what the participant themselves actually do in the same situation, is known as the “empathy gap,” and it regularly appears in social psychology experiments on obedience. The study’s authors speculate that the empathy gap is why judges reviewing the circumstances of a police encounter may assume motorists stopped by police feel free to refuse search requests – when motorists in fact do not.
In states like Illinois that track such statistics, motorists overwhelmingly grant consent. Aggregating data from years 2015 through 2018, about 85% of White drivers and 88% of minority drivers consent to a search – mirroring the Yale study’s findings.
After an intense Summer of protests over police brutality in 2020, this country has been presented with a worryingly racial bias that seems to infect police interactions. For instance, the Illinois State police in 2019 were twice as likely to request to perform a search during an encounter with a Latinx driver than with a White driver, despite statistics during the same period showing they were 50% more likely to find contraband in the vehicles of White drivers compared to Latinx drivers. This demonstrates that even the charade of seeking consent is infected with this racial bias.
While consent searches initially entered the legal sphere in the form of vehicle searches, officers are more likely to search a person’s cellphone these days. Upturn published a study in October 2020, which revealed that 2,000 law enforcement agencies, located in all 50 states, have purchased surveillance tools that can conduct “forensic” searches of phones. This has happened hundreds of thousands of times since the practice began in recent years.
The Electronic Frontier Foundation and the American Civil Liberties Union have been at the forefront in pushing for a ban on consent searches, especially in settings likely to increase coercion – traffic stops, sidewalk detentions, home searches, station house arrests, and any other encounter where persons do not readily feel free to leave.
Some states, such as California and Illinois, have laws mandating the tracking of statistics in such encounters, while other like New Jersey, Minnesota, and Rhode Island have imposed precedential or statutory limits on consent searches.
As the nation considers police reform, we should reconsider meaningful limitations on consent searches informed by social psychology and our understand of increasing militarized and over policing.
Given the power dynamic present in police-citizen encounters, it’s rare that a so-called consent search is ever the result of a truly voluntary decision free of coercion to allow police to search their person or property.
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