Stanford Politics

In early July, Sandra Bland was pulled over for a minor traffic violation. Initially, the stop appeared to proceed smoothly. Bland handed over her documentation, and a police officer was set to issue her a written warning. That may have been the end of the story, had the officer not ordered Bland to put out her cigarette. Bland, understandably irritated after being stopped for a trivial offense, noted that she was in her own car and asked why she had to put out her cigarette. The officer then escalated the situation, ordering Bland out of the car, and, after Bland initially resisted, violently arresting her. Three days later, Bland was found dead in her jail cell, allegedly the victim of suicide.

Sandra Bland’s death is one of the latest examples of the frequent harassment and abuse black citizens endure at the hands of police officers. It comes at a time of growing national awareness of the excessively brutal (and occasionally criminal) tactics employed by some officers against blacks, and has been justifiably viewed in that context. However, it also highlights a related issue: the startling imbalance of power between motorists and police officers at traffic stops.

In the United States, a police officer can demand of any stopped motorist that she step out of her car (without giving reason). Officers can legally arrest a person for a non-jailable offense at a stop, and can pull someone over based on her appearance (so long as they have pretextual justification). These disturbing realities are implicated in the video of Bland’s arrest, which caused New York Times Magazine legal writer Emily Bazelon to say of traffic stops, “It’s basically impossible to assert your constitutional rights, and that’s infuriating.” However, the video does not touch upon one of the most common and frustrating police practices of all — the consent search. At any routine traffic stop, an officer can ask permission to search the car. They don’t need a warrant or reasonable suspicion to make this request, and can do so at any time during the stop. If the motorist acquiesces, the police can search the vehicle, irrespective of any other considerations. The officer is not required to inform the driver that they have a right to decline such a request. Indeed, the officer does not even need to make it obvious that his words constitute a question, rather than an order. The phrase “Do you mind if I search your car?” is considered by the Supreme Court to clearly constitute a request, and an officer, upon getting an affirmative response to this question, is free to search away. This tactic is responsible for countless drug busts every year, and has helped increase our prison population to sizes unheard of in the Western world.

The consent search brings to mind a similar police tactic: the so called “third degree.” The third degree was a style of custodial interrogation in which an officer would mercilessly question and coerce a suspect until he confessed. Like the consent search, the goal of the third degree was to produce conclusive evidence against a suspect without the necessity of a lengthy investigation. The third degree also resembled the consent search in that it relied on a suspect’s ignorance of his rights. As every American has a Fifth Amendment right not to “be compelled… to be witness against himself,” a suspect could simply refuse to talk to police during interrogations. However, this was frequently unknown to suspects, and prior to 1966, officers were not required to enlighten them. In 1966, though, the Supreme Court decide Miranda v. Arizona. In that seminal case, the Court held that all suspects must be informed of their relevant Fifth and Sixth Amendment rights prior to interrogation, if their Fifth Amendment privilege against self-incrimination was to be meaningful. This led to the famous “Miranda” warning, which police officers are now required to read to any criminal suspect before custodial interrogation. Such warnings are now considered essential to the fairness of our criminal justice system.

Seven years after Miranda, the Supreme Court was asked in Schneckcloth v. Bustamonte whether an officer seeking consent for a search was required to warn a suspect of her right to refuse. Each of the remaining justices from the Miranda majority answered “yes.” However, the Court’s composition had changed by 1973. Liberal lion Earl Warren had retired due to advancing age, and Abe Fortas resigned in the face of scandal. They were replaced by law-and-order conservative Warren Burger, and his childhood friend Harry Blackmun. These new justices joined the four dissenters from Miranda to form a six man majority in Schneckloth, and together they found that officers did not have to inform suspects of their right to refuse when the officer asked permission for a consent search. Justices Brennan, Douglas, and Marshall all dissented, finding absurd the notion that one can freely “consent” without the knowledge that they can do otherwise. Over their protestations, Schneckcloth became law, and has remained the standard in the 42 years since.

I, like many others, believe that Schneckcloth was a mistake. It was one of a host of rulings that have shifted the balance of power at traffic stops too far in favor of the police, and left citizens with little space to meaningfully assert their rights. Schneckcloth represents a failure of constitutional interpretation, and a poor public policy choice.

The Myth of “Consent”

The Fourth Amendment of the U.S Constitution prohibits “unreasonable searches or seizures.” Over the years, this guarantee has generally come to mean that an agent of law enforcement cannot search an individual’s person or property without first going before a judge and obtaining a search warrant. However, there are exceptions to this rule. For instance, in Terry v. Ohio, the Court held that police officer can conduct a warrantless frisk for weapons if she reasonably believes that a suspect is armed and could endanger herself or others. More importantly, in Davis v. United States, the Court found that a warrant is not required if the person searched voluntarily consents to the search.

Few would argue against all consent searches. An estimated 90 percent of warrantless searches are conducted pursuant to consent, and they are an important law enforcement tool. It is obvious, however, that these searches can only be legitimate when premised on actual consent. The facsimile of permission is insufficient when a constitutional right is at stake. The Supreme Court itself has acknowledged this, and in Schneckcloth, it noted that it considers “the totality of the circumstances” in determining whether consent for a search was freely given. Unfortunately, this test has been unable to protect citizens from searches that are only nominally consensual.

The clearest evidence that “consent searches” are rarely consensual is their occasional success. Frequently, individuals do give “permission” to search despite having possessions on their person they would rather keep hidden. To cite just one example, in United States v. Drayton, defendant Christopher Drayton gave police officers permission to search his person despite having 295 grams of cocaine taped to his body. It seems highly unlikely that Drayton would have consented to a search that was going to incriminate him if he knew that he could choose otherwise. Yet the Supreme Court felt that the State did not have to prove that Drayton knew he had a choice. It merely required that the request to search be ostensibly phrased as a question (“Mind if I check you?”), and that a so called “reasonable person” would have felt free to terminate the police encounter.

These standards fail to capture the true nature of consent. For someone to truly give consent, she must have some understanding that there is a choice to be made. For instance, consider a 12 year old sitting in English class. Should his teacher say to him “Johnny, do you mind diagramming the sentence I have written on the whiteboard?” few would consider Johnny to have “consented” when he walks up to the board to fulfill the teacher’s request. Even if his teacher truly was giving Johnny the option of not participating, we can hardly say Johnny made a voluntary choice unless he understood his teacher to be offering him alternatives. The same logic applies to the case of Christopher Drayton. For him and the countless others who find themselves in similar circumstances, it seems bizarre to characterize their verbal acquiescence as consent when they are unaware they could choose otherwise.

With this notion of consent in mind, it seems likely that some of the consent searches which have turned up contraband are in fact not the product of true consent. For as Judge Gerard Lynch of the Second Circuit Court of Appeals says, it would otherwise be “remarkable how often…people with everything to hide and a constitutional right to hide it nevertheless give it up freely to the police.” The very fact of consent searches’ effectiveness thus cuts against the possibility that they are truly consensual.

In addition to basic deductive reasoning, empirical evidence argues that consensual searches are frequently anything but. Social science research has convincingly shown that most individuals are likely to cooperate with persons in positions of authority, even when they are nominally free to do otherwise.

In her paper “No Need to Shout,” Janice Nadler discusses two laboratory experiments in which subject acquiesced to the requests of an authority figure, despite having the motivation and choice of doing otherwise. In the first, famously known as the Milgram Experiment, the subjects repeatedly administered a “painful” electric shock to another subject despite that subjects evident and significant pain, simply because the experimenter instructed them to do so. While the shocks were not in fact real (the second subject would be feigning pain, and in league with the experimenter), the primary subject believed they were, and continued to administer them despite having a compelling reason to cease doing so.

In the second experiment, subjects were told they should not press the “Alt” key on a computer. The experimenter warned them that doing so would cause the computer to malfunction, and would erase data. The subject would later be assigned work on the computer, which would be programmed to crash during the experiment. The experimenter would then accuse the subject of having touched “Alt.” They would ask the subject to sign a confession to this effect, upon which the experimenter would call the lab supervisor to report the crime. While the subjects had not pressed the “Alt” key, 69 percent of them signed the confession upon request by the experimenter. Once again individuals acted against their true preferences, primarily because an authority figure asked them to.

From these two experiments, in addition to others, Nadler surmises that the “consent” given by the subjects of searches is often involuntary. She goes on to note that “Instead of an experimenter in a white lab coat expecting cooperation, [individuals searched]faced a police officer with a badge (and a gun) expecting cooperation.” In the presence of this sort of authority, Nadler justifiably believes that some “people are coerced to comply when they would prefer to refuse [consent for a search].” This conclusion, which is supported by other scholars, further undermines the claim that consent is voluntarily given for most consensual searches.

Nadler’s comments point to a further problem with consent searches: the setting in which they frequently occur. Traffic stops are a common venue for consent searches. Often they come after a driver has been pulled over for a traffic infraction, such as speeding, or failing to signal a turn. When the officer asks permission to search, they have sometimes just concluded reprimanding the driver, who is frequently alone, for the violation. The officer often makes the request while looking down at the driver, who is slouched impotently in his seat and already slightly embarrassed. Frequently, the officer will be carrying one or more weapons on his person, and is dressed in full uniform. These circumstances are hardly conducive to an assertion of constitutional rights by the driver. They recall the custodial interrogation setting, which Earl Warren termed “inherently intimidating” in the syllabus to Miranda v. Arizona. Under these conditions, the voluntariness of any consent given is questionable.

Abundant evidence suggests that citizens commonly consent to searches that they would prefer to avoid. This reality offends our Fourth Amendment traditions and frustrates our national understanding of private, personal space. The consent search, as currently practiced, is unconstitutional.

A Judicial Solution

Nevertheless, even if declared unconstitutional as applied today, the consent search is unlikely to die. Just as surely as an individual in custody can choose to waive his right to remain silent, an individual stopped by the police can waive his right to be free of unreasonable searches and seizures. A blanket prohibition on consent searches probably cannot be read into the Constitution. The courts should thus turn to requirements that can minimize the intrusion of such searches on citizens’ Fourth Amendment rights.

In Miranda v. Arizona, the Supreme Court faced a similar dilemma. At that point, it was applying the “totality of the circumstances” test to determine if a confession produced during police interrogation was coerced out of a suspect in violation of the Fifth Amendment. The Court realized, though, that this standard failed to preserve a suspect’s right against self-incrimination. Too often, lower courts would admit confessions given by suspects subjected to indecent methods of interrogation, or who were entirely unaware of their rights in the first place. This second phenomenon was regrettably common, and was partially why the Warren Court held in Miranda, “At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it — the threshold requirement for an intelligent decision as to its exercise.” In so ruling, the Court tacitly acknowledged that rights are mostly useless to an individual with no knowledge of them. This understanding led the Court to require the now ubiquitous “Miranda warning:” a statement of a defendant’s rights, by the police, prior to any custodial interrogation. Such a statement protects fundamental fairness in custodial interrogation, but more importantly, ensures the baseline knowledge required to exercise constitutional rights. Miranda transformed the Fifth and Sixth Amendments from paper assurances into real guarantees.

Courts should take the same approach to consent searches. As with the privilege against self-incrimination, it is difficult for an individual to assert her right to be free from unlawful searches if she doesn’t know she has it. Without this baseline knowledge, the Fourth Amendment is of little use to her. That is partially why police officers should be constitutionally required to inform citizens of their right to refuse a consent search request. Such a warning is “the threshold requirement for an intelligent decision as to [the right’s]exercise.” Armed with the knowledge of her privileges as a citizen, an individual has greater autonomy to make a decision about a search that comports with her actual desires.

This solution provides the insight necessary to preserve Fourth Amendment rights without eliminating the consent search altogether. Police officers would still be free to ask permission to search a person or their property, so long as they informed said person of her right to refuse. This would allow law enforcement to retain a valued tactic, while diminishing the imbalance in power between police and civilians. While warnings for consent searches wouldn’t completely equalize the dynamics of a traffic stop, they would help to some degree to eliminate the atmosphere of intimidation that such a stop can produce.

Not only would warnings revive Fourth Amendment rights in the context of the consent search, they could also help to build trust between police officers and the community. When an officer informs an individual of her rights, he projects an air of fairness and professionalism. This display does not merely provide a citizen with crucial information; it also allows her to deal with officer with greater confidence. Moreover, elevated professional standards can help curb officer abuses and yield a better trained police force. In the years following Miranda, police misconduct during interrogations was noticeably reduced, and indeed, some experts credit Miranda with improving the reliability of testimony produced during custodial interrogation.

Requiring warnings before consent searches is no panacea. Police misconduct would not evaporate overnight, and the institutionalized racism infecting the criminal justice system would persist. Nevertheless, protecting our Fourth Amendment rights is a goal worth pursuing, and mandatory verbal warnings before consent searches would help make those rights meaningful. But perhaps more significantly, such warnings would reduce the power imbalance between police and civilians at traffic stops. This shift could lead to greater mutual trust in police/citizen interactions, and defuse potentially dangerous situations. It probably would not have saved Sandra Bland from the abuse she suffered at the hands of law enforcement, but in some small fraction of cases, a warning before a consent search could prevent a tragic outcome.

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Brett Parker, a junior studying political science, is the managing editor of Stanford Political Journal.