Consent doctrine rests on a legal fiction. It protects a broad realm of police conduct not because people in fact feel free to withhold consent, but because it is deemed essential to law enforcement. The assumption that consent is voluntary has been widely criticized, but the other assumption undergirding consent doctrine—that consent searches are essential to good police work—has received less attention. I argue that good police work is too often narrowly equated with finding contraband and making arrests, and that we need a better metric for determining whether “too much” evidence would be lost and “too many” searches would be forgone if consent rules were reformed. Criteria should include not only efficiency at combatting crime but also safeguarding public and police safety, promoting fairness and equal treatment of civilians, contributing to improved police-community relations, and providing transparency and accountability. Evaluating and improving consent doctrine also requires addressing the question of which institutions are best suited to gather relevant data and to implement reform.
Consent doctrine provides fertile ground for an evaluation of various institutional approaches to supervising police conduct. It provides an opportunity to examine the scaffolding: the built-in advantages and disadvantages of various institutional approaches to police reform. At the same time, it highlights the impossibility of considering these institutional questions without reference to concrete context. In the realm of policing, noticeable shifts in governmental approaches and priorities are often visibly tied to the change in political regimes. These fluctuations illustrate the perils of treating each institution’s role as fixed, but they also highlight the essential role of each institution as well as the ways in which some institutions can step up as others step back. I will approach the regulation issue by considering three intertwined questions: First, what kinds of regulation will effectively limit police misuse of consent searches? Second, what data will help illuminate the nature and scope of the problem? And third, what entities can best achieve these regulatory and data-gathering goals?
There is a palpable disconnect between the practical importance of consent searches and the attention these searches garner from courts and scholars. Although there is no reliable data on the prevalence of consent searches (and this dearth of data is itself part of the problem), there is consensus that the vast majority of searches—perhaps 90% or more1—are conducted under color of consent doctrine.2 Consent is the most frequent justification offered for searches that lack a warrant, probable cause, or reasonable suspicion.3 Consent obviates the need for law enforcement to conform to nearly all the carefully enunciated rules that apply to nonconsensual searches.4 Critics routinely refer to it as a “major loophole”5 and an “efficient end run”6 around the Fourth Amendment that “either satisfies or waives whole swaths of constitutional text.”7
Yet courts have provided little guidance on how to regulate this massive exception that nearly swallows up the rule of the Fourth Amendment. To the contrary, the Supreme Court’s few forays into consent search doctrine have sown confusion and misdirection. Other institutions have occasionally stepped in to fill the gap, and the history of those efforts is instructive. Most notably, states have relied on their own constitutions to provide firmer guidance to police—providing some fascinating comparisons of the results of differing jurisdictional and doctrinal approaches to the problem.8 But at bottom, the history of the regulation of consent searches is notable mainly for its gaps, its failures, and a pervasive lack of attention to the subject on every level of government.
Consent doctrine provides fertile ground for an evaluation of various institutional approaches to supervising police conduct. The overall story thus far is mainly one of neglect, but it also contains some interesting interventions. It’s an opportunity to examine the scaffolding: the built-in advantages and disadvantages of various institutional approaches. But it also makes clear the impossibility of considering these institutional questions without reference to concrete context. In the realm of policing, noticeable shifts in governmental approaches and priorities are often visibly tied to the change in political regimes.9 These fluctuations illustrate the perils of treating each institution’s role as fixed, but they also highlight the essential role of each institution as well as the ways in which some institutions can step up as others step back.
I will approach the regulation issue by considering three intertwined questions. First, what kinds of regulation will effectively limit police misuse of consent searches? Second, what data will help illuminate the nature and scope of the problem? And third, what entities can best achieve these regulatory and data-gathering goals? Before considering these three questions, it is important to understand the current state of affairs and the governmental actions and inactions that created it.
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