'Voluntary' Searches a Fairy Tale: Reviews

Do you believe in Santa Claus? Do you believe in the Tooth Fairy?

Do you believe in magic in a young girl's heart, how the music can free her whenever it starts?

Do you believe that a person with narcotics taped to his leg ever voluntarily consents to a warrantless police search?

If you answered ''Yes'' to all these questions, then please have Santa, the Tooth Fairy, and the Lovin' Spoonful explain the Fourth Amendment ''consent'' exception to me.

A recent study estimated that over 90 percent of warrantless police searches are accomplished through the use of the consent exception. The test for determining whether a consent comports with the Fourth Amendment is whether it is ''voluntary.''

How likely is it that a person carrying drugs ever ''voluntarily'' consents to a search? Is the U.S. Supreme Court serious when it claims to be evaluating consents based on ''voluntariness''? Two recent law review articles come to very different conclusions. One article contends that it time for the Supreme Court to admit that it does not really examine consents for ''voluntariness,'' but rather merely examines whether the police behavior leading up to the consent was objectively reasonable. The other article has a more radical solution: that most consent searches should be banned.

First, let's look at the history of consent searches.

As you know, the Supreme Court insists that a criminal defendant's waiver of a trial-related constitutional right is a strict one: the personal waiver must be ''voluntary, intelligent, and knowing.'' See, e.g., Johnson v. Zerbst, 304 U.S. 458 (1938) (right to assistance of counsel). In 1966, the Supreme Court significantly expanded the use of this exacting standard by taking it out of the rarefied atmosphere of a courtroom and placing it in the interrogations rooms hidden away in the back of police stations. In Miranda v Arizona, 384 U.S. 436 (1966), the court held that before any custodial interrogation the police must both read a suspect his ''Miranda warnings'' and then obtain a voluntary, intelligent, and knowing waiver of his Fifth Amendment right against selfincrimination.

What is a ''voluntary, intelligent, and knowing'' waiver? It really is made up of two prongs. The court has held that the ''voluntary'' aspect is concerned solely with an objective analysis of the behavior of the police or other government agents. Colorado v. Connelly, 479 U.S. 157 (1986). The ''intelligent and knowing'' prong, on the other hand, requires a subjective analysis making sure, among other things, that a person is actually aware of the right he is giving up. So, for example, a judge will explain to a defendant that he has the right to assistance of counsel at his trial and, concomitantly, the police have to read a suspect Miranda warnings to guarantee that he is actually aware of his right to remain silent.

How should a court evaluate the validity of a consent to a police search? Interestingly, it was not until Schneckloth v. Bustamonte, 412 U.S. 218 (1973), that the Supreme Court explicitly confronted the issue. The defense contended that consent is a waiver of a constitutional right, and therefore it must be made voluntarily, intelligently, and knowingly. Just as Miranda took the voluntary, intelligent, and knowing waiver out of the courtroom and into the police station, the defense in Schneckloth asserted that the same standard should be taken out to the streets. And, because there cannot be a waiver of a right without actual knowledge that a person knows he has that right, the defense contended that the police must tell a person that he has the right to refuse the police request for a consensual search.

The Schneckloth court made a startling doctrinal shift. It held that only trial-related rights required waiver based on a voluntary, intelligent, and knowing standard, and that consent to a search did not involve such a decision. Instead, it held that the validity of consent should be measured by the same standard used to evaluate the admissibility of confessions under the Due Process Clause: simple voluntariness. Thus, it was not necessary to show that a suspect was actually aware of his right to refuse a police officer's request for consent. Rather, the touchstone of a voluntariness test is merely the absence of police coercion. Thus the police have no duty to tell a suspect that he has the right to refuse a police request for a search; the failure of the police to warn is only one factor in a totality of the circumstances test to determine if there was coercion.

Over thirty years of experience with Schneckloth has convinced Professor Ric Simmons that, although the court still claims to use the ''voluntariness'' test, it is actually applying a very different test. Ric Simmons, Not ''Voluntary'' But Still Reasonable: A New Paradigm for Understanding the Consent Search Doctrine, 80 Indiana Law Journal 773 (2005).

Simmons begins by discussing the Supreme Court's decision in U.S. v. Drayton, 536 U.S. 194 (2002). Three police officers boarded an interstate bus during a rest stop. One officer stood by the door. The other two officers asked individual passengers for consent to search both their luggage and their persons. In making this request, one officer stood behind the passenger while the other officer leaned forward within eighteen inches of the passenger's face as they asked the passenger to ''cooperate.'' Drayton and another man allegedly consented to a search, although each man had felony-weight packets of narcotics taped to his thigh.

The Court held that both men made ''voluntary'' consents. Simmons argues that to characterize these actions as ''voluntary'' is ''absurd, meaningless, and irrelevant under traditional Fourth Amendment jurisprudence.'' At 774. He even cites Souter's dissent that characterized the majority opinion as possessing an ''air of unreality.'' Drayton at 208 (Souter, J., dissenting).

How could a man knowingly secreting narcotics ''voluntarily'' consent to a police search?

Simmons notes that when Schneckloth established ''voluntariness'' as the test for consent, it stressed that the question of whether a confession was involuntary asked whether a ''suspect's will was overborne.'' In making this call, courts traditionally relied on both subjective concerns (examining the individual characteristics of the accused) and objective criteria (examining the conduct of the police and the circumstances surrounding the interrogation).

Despite giving lip-service to subjective factors, Simmons argues that the court has actually come to view the ''voluntariness'' of consent through a purely objective lens. One of the reasons for this was the court's decision in 1986 — thirteen years after Schneckloth — that a finding that a confession was involuntary required a threshold showing of improper state action; that is, subjective factors concerning the suspect are irrelevant unless you can first show some type of objectively improper state action. Colorado v. Connelly, supra. This change in what is a ''voluntary'' confession also gradually affected the test for ''voluntary'' consent. For example, the Drayton court's finding that the consent was voluntary was based on the facts that ''[t]here was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.'' At 204. Notice that these are all objective facts dealing with the police officer's actions with no mention of Drayton whatsoever. (Yet for a recent Illinois case that does examine subjective factors in finding a consent to be involuntary, see People v. Kveton, 2d District, No. 2-04-0204, decided December 5, 2005).

Simmons argues that what the court continues to call a ''voluntariness'' test has morphed into an objective ''reasonableness'' test. But Simmons also contends that a ''reasonableness'' test for consent is not necessarily wrong. ''Reasonableness,'' after all, is the touchstone of Fourth Amendment analysis.

Simmons comes to two conclusions. First, the court should scrap the ''voluntariness'' paradigm and explicitly switch to an ''objective reasonableness'' test for evaluating police behavior. Second, under the new paradigm, the court should hold that no consent can be reasonable without the suspect first being told that he has the right to refuse. Perhaps consent can be ''voluntary'' without subjective knowledge of the right to refuse, but such a consent cannot be ''reasonable.''

Professor George C. Thomas III takes a more radical position in his article Terrorism, Race and a New Approach to Consent Searches, 73 Mississippi Law Journal 525 (2003). Thomas bluntly declares that ''Consent is an acid that has eaten away the Fourth Amendment.'' At 541. He contends that traffic stops of minority drivers for minor offenses are often just pretexts for police attempts to conduct warrantless consent searches. Indeed, Thomas says the ''consent search doctrine is the handmaiden of racial profiling.'' At 542. Thomas notes that the New Jersey Supreme Court has limited this practice by holding that a consent to search is always unreasonable unless the officers had, prior to requesting consent, a reasonable suspicion that a crime has been or is about to be committed. State v. Carty, 790 A.2d 903 (N.J.2002).

Thomas would go further. Lacking confidence that any consent is either voluntary or reasonable, Thomas contends that courts should simply refuse to allow searches based on consent. The only exception he would recognize would be for consents in response to ''public safety requests,'' i.e., asking those seeking access to places such as airports, bus stations, public buildings, and other places where catastrophic harm is possible.

Simmons and Thomas have performed a real service in revealing the fiction behind so-called ''voluntary consents.'' Whether courts should simply change the test or abolish consent altogether, one thing is clear — the attention of judges and lawyers is long overdue.