Toward a Better Rule on Informed Consent

by Jamison Koehler on January 3, 2012

Police officers love the consent exception to the Fourth Amendment requirement for a warrant almost as much as they love plain view.  It is because the exception makes things so easy for them:  They can do almost anything they want so long as the suspect agrees to it.

The suspect’s consent is usually given orally.  Yes, please subject me to a humiliating search of my body so that you can discover the contraband I have placed in my right front pants pocket. And when, inevitably, the suspect says he didn’t consent, who is going to believe a suspected criminal over the word of a police officer?

To protect themselves, the officers will sometimes get the suspect to sign the consent form.  How many people actually read something they are asked to sign?   Police will occasionally resort to a little trickery in order to facilitate this written consent.  Sign here, they tell the suspect’s mother, or we will have to take your son into custody.  The son is now in custody precisely because she signed the consent form.  Or didn’t.  The search proceeds anyway.

The “inevitable discovery” rule is a valuable component in the government’s arsenal to bring in evidence against a defendant.  Drawn from the U.S. Supreme Court’s decision in Nix v. Williams and serving as an exception to the fruit-of-the-poisonous tree doctrine, the rule provides that evidence obtained by illegal means may nonetheless be admissible if the prosecution can show that the evidence would have eventually been legally obtained anyway.

The same principle of inevitability should also apply to consent. It is a great legal fiction that any reasonable person would feel free to simply walk away when confronted by a uniformed police officer on the street. And how about a person who knows he is about to be searched anyway?  The subject of the investigation figures a preemptive consent will avoid antagonizing the police officer any further:  I might as well consent; the police officer is going to discover the weed in my pocket anyway.  In this sense, consent becomes inevitable.  Moreover, consent obtained through police trickery or ultimatum can never be characterized as  truly voluntary.

Despite a heavy burden on the government — in theory at least — to prove the voluntariness of consent, a police officer is not required to inform the suspect that s/he has the right to refuse.  A prophylactic rule – similar to the Miranda warnings – that required the police officer to inform the subject of his/her right to withhold consent could go a long way to rectify this inherent imbalance in a citizen’s dealings with the police.  It would advance the firmly established legal principle that any waiver of a constitutional right must be truly knowing, intentional and voluntary.

One Comment on “Toward a Better Rule on Informed Consent

  1. Prophylactic rules are like other prophylactics. They only work if they don’t have holes. And if they’re used. Not much in my world. So here’s a story.

    Actually, the Ohio Supremes tried to adopt just such a rule back in the 90s. After the purpose of a traffic stop was fulfilled, they said, if the cop wanted to keep the driver around for questioning, he had to tell the driver he was “free to leave.” Bright line rule. Easy to apply. Absolutely necessary.

    The Supremes promptly reversed although they allowed as to how the Ohio Constitution could provide that protection if the Ohio courts wanted to find it there. On remand, the court said that the Ohio Constitution is a document of independent force, but that the Ohio protection against unlawful searches and seizures means whatever the Supremes say the 4th Amendment means. (That’s not an entirely fair characterization of what they wrote, but it’s within hailing distance.) They did, however, continue the suppression in that particular case finding that on the particular facts the consent was involuntary – something they’ve never found since and on a set of facts that comes up fairly regularly and that the lower courts routinely ignore.

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