October 2002
Vol. 38, No. 10

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Supreme court review

The Court's curious consent search doctrine

Craig M. Bradley

Consent searches are the black hole into which Fourth Amendment rights are swallowed up and disappear. Yet in United States v. Drayton, decided at the end of last term, the Supreme Court continued its insistence that a consent search that was obviously "involuntary" in the ordinary sense of the word was nevertheless "voluntary" under the Fourth Amendment.1 On the other side of this curious looking glass, the Court also perpetuated the notion that, had the suspect been improperly "seized" before the search, a patently voluntary consent would have been "involuntary" in Fourth Amendment terms.

In this case, Christopher Drayton and Clifton Brown Jr. were riding a bus from Ft. Lauderdale, Florida, to Detroit. When the bus made a scheduled stop in Tallahassee, the driver let three plainclothes police on board for a "routine drug and weapons interdiction" inspection.2 While one officer remained at the front of the bus, the other two went to the rear. One of them, Officer Lang, worked his way forward, asking passengers about their travel plans and seeking to "match passengers with luggage in the overhead racks." Although he testified that people were free to not cooperate or to "exit the bus at any time . . . without argument," the passengers were not informed of this, and lack of cooperation was rare.3 No one on this bus had refused to cooperate before the police confronted Drayton and Brown.

Lang approached the respondents, showed his badge, explained the drug-interdiction mission, and asked if the men had any suitcases. When they both pointed to a single bag, Lang asked if the police could search it. Brown replied, "Go ahead." They found nothing.

Lang noticed that "both respondents were wearing heavy jackets and baggy pants, despite the warm weather" (though it was February and they were heading for Detroit). He testified that drug traffickers often use baggy clothing to conceal weapons or narcotics. Accordingly, Lang asked to search Brown's person, and he agreed. Lang patted Brown's clothing, felt "hard objects similar to drug packages" near his thigh, and arrested him.4

Lang then asked to search Drayton, who "responded by lifting his hands about eight inches from his legs." Lang also felt packages around that man's thighs and arrested him. He had about 300 grams of cocaine; Brown had 483 grams. They were convicted of federal drug charges, but the Eleventh Circuit reversed on appeal. Relying on an earlier Eleventh Circuit case, United States v. Washington,5 the court concluded that "a reasonable person would not have felt free to disregard [the agents'] requests without some positive indication that consent could have been refused."6

Washington cited an earlier Supreme Court case, Florida v. Bostick, involving a similar bus encounter.7 The Court overturned the Florida courts' rule that such bus searches were illegal "seizures" (and hence the consents were invalid) because the passengers would not feel "free to leave." The Court rejected applying this language to a bus passenger because not feeling free to leave was an effect of taking the bus, and it held that "the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter."8

In its Drayton ruling, the Eleventh Circuit noted that in Bostick, the Supreme Court found that "the police specifically advised Bostick that he had the right to refuse consent."9 The convictions in Washington and Drayton were reversed because no such advisory was given.

Two earlier cases, Schneckloth v. Bustamonte10 and Ohio v. Robinette,11 had held that no such advice was required for a consent to be voluntary. In those cases, the requests for consent arose only after a legitimate traffic stop, whereas in Washington, "the agents stated no legitimate reason for detaining the passengers on the bus."12 While this distinction may not bear directly on the issue of voluntariness, it would give rise to a clear limitation on police: When requesting consent of people who are not legitimately detained, advising that they need not consent is required.

No advisory required

In Drayton, the Supreme Court would have none of this. In a 6-3 majority led by Justice Anthony Kennedy, the Court likened the bus encounter to "approaching individuals on the street or other public places and putting questions to them," which would "implicate no Fourth Amend ment interest."13 The Court then reviewed the case circumstances:

And with voluntary consent, no informing or warning is required.

Finally, in a paean to the virtues of a civil society, the Court in effect congratulated both the police, for their polite and nonthreatening behavior, and the defendants, for their public-spiritedness in freely consenting to be searched and arrested:

In other words, not allowing suspects the civil right to consent freely and openly to searches would deprive them of their dignity as citizens of a free society.

Justice David Souter, writing for the dissent, saw the situation differently. He reiterated the Court's longstanding rule that if the defendants were "seized" when they gave their consent, then that consent would be invalid.16 Souter concluded that the facts of this case amounted to a seizure—presumably a Terry "stop" without reasonable suspicion rather than an arrest.17

In effect, the dissenters concluded both that a seizure occurred, since the defendants would not have felt free either to leave or to refuse the police request, and that this consent was not voluntary (though they began by stating that this issue was not before them).19 The dissenters were unwilling to impose a per se requirement that suspects be informed of their right to refuse consent, but they would have required it in this case.20

'Voluntary' consent

The Court's supposed rule in consent cases is that "the prosecution must . . . demonstrate that the consent was voluntarily given."21 Since the Drayton defendants obviously realized that a search would inevitably lead to arrest, the notion that consent was "voluntary," in the sense that it was a free choice among available alternatives, is ridiculous. The Court obscured this glaring flaw in its reasoning by asking whether the "reasonable person would feel free to decline the officer's requests or otherwise terminate the encounter."22 And by "reasonable person" the Court meant "an innocent person."23

But the defendant, by definition, is never innocent. The issue has be come not whether the defendant voluntarily consented, but whether someone else with nothing to hide would have done so. In other words, if the police don't misbehave and don't suggest that consent is required, then it's OK. This is a far cry from the requirement in Schneckloth that the prosecution prove the defendant's consent was voluntary. In Drayton, the Court seemed impressed with the dubious and unprovable police claim that, in other bus searches, passengers had freely refused consent and even left the bus during inspections. But since the defendants knew nothing of this, it has no bearing on the issue of their voluntariness.

Requiring that police inform people of their option to refuse consent would have two possible consequences. First, suspects would not believe the advisory and would consent anyway, feeling that refusal would be fruitless and would only make matters worse. Presumably, this is often the case with confessions. But at least the government would have taken reasonable steps toward ensuring voluntariness.

The other possibility is that suspects would heed the advisory and refuse consent, and the evidence would be lost. But this is simply a consequence of the police lacking probable cause to search in the first place. An exception to the warrant and probable cause requirements based on "voluntary consents" would lead to police frustration over refusals to consent.

Why does the Court refuse a requirement to inform regarding searches, but not regarding confessions? The reason given in Schneckloth is that "the protections of the Fourth Amendment are of a wholly different order [from those of the Fifth] and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial."24 In other words, since involuntary consent searches, unlike involuntary confessions, don't give rise to unreliable evidence, the voluntariness of consents is not as much of a concern. But the kind of evidence produced has nothing to do with the voluntariness of the consent. The Court casts doubt on its own integrity by insisting that the consents in cases like Bostick and Drayton were voluntary.

But, the Court might say, it is looking at the case from the perspective of the police. Evidence should be excluded only to deter police misbehavior; if they didn't misbehave, there's no reason to exclude. Since the police had no way of knowing, before the search, whether the suspects consented voluntarily or because they felt they had no alternative, the search must be approved. This uncertainty about "voluntariness," however, was the reason for imposing Miranda requirements on confessions. Since the police cannot know whether consent is voluntary, the Court must impose constraints on them to ensure voluntariness.

But, the Court might argue further, since consent searches produce such good evidence, why does it matter whether they're really voluntary? This hard question is the true heart of the Court's consent doctrine. While innocent people are genuinely upset by a warrantless search of their home, perhaps they don't mind a quick look in their suitcase or car trunk, or a patting of their outer clothing, to further airport security, the war against drugs, or other societal interests.25 (Although advisories are not required for consent searches of homes and autos either.)

This argument ignores the coerciveness of such a police request—regardless of innocence or guilt—and argues for the advisory requirement. One cannot assume that innocent people welcome such intrusions. If they are truly glad to cooperate in such police endeavors, they will do so even when informed that they don't have to. This would ensure that they are cooperating freely rather than acceding to police pressure.

Another odd aspect to the Court's consent law is that all nine justices in Drayton assumed that, if there had been a seizure (because the search was not based on reasonable suspicion), the consent would have been invalid, even if the suspects had been warned of their right to refuse, as the suspect was in Bostick.26

Once again, the Court has lost track of the voluntariness issue. If someone has been illegally stopped or arrested, the situation is not any more coercive than if he or she had been legally detained. A detention achieved by brutality might render the consent involuntary, but an illegal detention alone does not render a consent involuntary any more than it does a confession. (The Court also excludes confessions in these circumstances).27

If the Court is serious about voluntariness, it should impose an advisory requirement and reject the per se rule that illegal detention automatically renders consents and confessions invaliId. If the Court is not serious about voluntariness, it should at least admit so.

Notes

1. 122 S. Ct. 2105 (2002).

2. Id. at 2109.

3. Id. Lang testified that it was common for passengers to leave the bus during these searches. He said that only five or six people refused a search out of approximately 800 buses searched in the past year. United States v. Drayton, 231 F.3d 787, 791 (11th Cir. 2000).

4. 122 S. Ct. 2105, 2109.

5. 151 F. 3d 1354 (11th Cir. 1998).

6. 231 F. 3d 787, 790.

7. 501 U.S. 429 (1991).

8. Id. at 436.

9. Id. at 432.

10. 412 U.S. 218, 248-49 (1973).

11. 519 U.S. 33 (1996).

12. 151 F. 3d 1354, 1357.

13. 122 S. Ct. 2105, 2110.

14. Id. at 2114.

15. Id.

16. Id. at 2114-15.

17. Terry v. Ohio, 392 U.S. 1 (1968).

18. 122 S. Ct. 2105, 2116.

19. Id. at 2114 n. 1.

20. Id. at 2116.

21. 412 U.S. 218, 223.

22. 122 S. Ct. 2105, 2111.

23. Id. quoting Bostick, 501 U.S. 429, 437-38.

24. 412 U.S. 218, 242.

25. "[B]us passengers . . . cooperate not because of police coercion but because [they] know that their participation enhances their own safety and the safety of those around them." 122 S. Ct. 2105, 2113.

26. See Florida v. Royer, 460 U.S. 491 (1983).

27. Brown v. Illinois, 422 U.S. 590 (1975).

Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at bradleyc@indiana.edu.