Area of Law: Consent to Search - Research Paper Example

?Consent to Search By Table of Contents Introduction 3 Consent Searches as a Police Investigative Tool 3 The Importance of Consent Searches for the Public 6 The Individual Right to Privacy and Consent Searches 9 Conclusion 15 Introduction A warrantless search is regarded as unreasonable and therefore, a violation of the Fourth Amendment unless certain, limited conditions exist (Katz v US, 347 ). Consent to search is one of the limited exceptions to the general requirement for a warrant and as such dispenses with the Fourth Amendment’s probable cause and reasonable suspicion criteria (Maclin, 27). In this regard, a valid consent to search must represent a voluntary waiver of the Fourth Amendment’s right to privacy and the underlying protection of one’s right of security to the person, property and private life (Webb, 3371). While there are a number of reasons why a police officer might prefer to obtain consent as opposed to warrant, it is less clear why an individual would voluntarily consent to the inconvenience of a police search. This paper analyses the consent to search issue and considers why policy resort to consent searches as an investigative tool, why individuals might voluntarily consent to a search and how consent searches benefit the public. Consent Searches as a Police Investigative Tool According to Stack police largely rely on consent searches at the airport in their efforts to interdict illicit drug trafficking (183). Police suspicions are usually aroused as to who might be a likely drug trafficker based on the latter’s “conformity” to police “drug courier profiles” of persons involved in the illicit drug trade (Stack, 183). This suspicion would not usually be sufficient to obtain a search warrant on the grounds of probable cause or reasonable suspicion that the individual is about to or has committed a criminal offence. Even if, the officer had probable cause, it would be counterproductive for the police to apply for and go through the process of obtaining a search warrant as the individual will likely leave the airport or take a flight outside of the jurisdiction in the meantime (Stack, 183-184). According to Nadler and Trout, police investigative practices in the US typically involve “on-the-fly searches” as a means of detecting “evidence of crime” (328). In other words, these types of searches are impromptu and not incidental to an existing criminal investigation. Police are: …acting on their instincts and training regarding a person’s appearance or behavior or even presence in a particular place (Nadler and Trout, 328). For the most part, consent searches are obtained during routinely made traffic stops. In a typical case, the police will often stop a driver for a minor traffic infraction such as a flawed tail-light, changing lanes without a signal or for exceeding the speed limit. When police officers stop a motorist for a minor traffic infraction it is not usually because of the perceived danger of these infractions, but for the “opportunity” the stop provides for “investigating suspicious citizens” (Nadler and Trout, 329). Even where police stop an individual in a routine traffic stop on a hunch that the individual is likely in possession of illegal drugs, the stop is not unlawful if there is evidence of an actual traffic violation (Whren v US, 806). According to Nadler and Trout, the federal government awards significant funding to local police departments as a means of advancing the nation’s war on drugs (329). Therefore, local police departments have a significant incentive for interdicting drugs and this accounts for the large reliance on motorists consent to be searched and have their vehicles searched in routine traffic stops (Nadler and Trout, 329). Consent searches are necessitated where there is no probable cause or where there are no reasonable grounds to suspect that a crime is being committed or was committed (Nadler and Trout, 230). In addition to passengers at the airport and drivers in traffic stops, consent searches are also used by police in other venues such as busses, trains and subways (Bascuas, 721; Nadler and Trout, 330). As Nadler and Trout argue, “consent searches permit police to search when they otherwise would be prohibited from doing so” (330). Consent searches are very popular in the US. According to Simmons (2005) more than 90% of police searches conducted in the US are consent searchers (773). Consent searches are popular because according to State v Carty, more than 95% of individuals asked by police to submit to a search give their consent (632). Therefore, the high likelihood of obtaining consent is a motivation for police to use consent searches as an investigative tool. Moreover, consent searches cost less in terms of human resources and time since police will generally not have to take the administrative route to obtain a search warrant (Nadler and Trout, 231). As Nadler and Trout argue, from the perspective of law enforcement, consent searches are low cost investigative tools (231). If police conduct enough consent searches they will undoubtedly locate evidence of a crime (Nadler and Trout, 231). Since a non-consensual search requires probable cause or reasonable suspicion of a specific crime, the consent to search technique is more beneficial to police for the purposes of detecting and preventing crimes. A warrant usually requires that a crime has already been committed or that a specific crime is about to be committed. In other words, the warrant is only useful to police if they have evidence of criminal behavior. A consent warrant is more useful for aiding police in detecting crimes that would otherwise go undetected. Another reason why police prefer using consent searches over warrant searches is that they are not confined to search for specific items and can in essence conduct a general search for any incriminating evidence (Friedman, 314). In fact, it has been ruled by the US Supreme Court that when police request consent to search for specific evidence and obtains the voluntary consent of the individual in question, the search is lawful. As a lawful search, police may collect any evidence found in conducting a lawful search (Horton v California, 128). In other words, the police are at liberty to build a case on evidence collected pursuant to a consent to search process. By contrast, a search warrant comes after police have begun building a case and therefore requires that investigations have at the very least established a reasonable case against the defendant. The Importance of Consent Searches for the Public Proponents of the “reasonableness view” of the Fourth Amendment argue that, the “warrant preference view” of the Fourth Amendment is inconsistent with the intent of the framers of the U.S. Constitution (Lee, 7). The reasonableness view argues that the framers of the Constitution had in mind exceptions to the warrant preference approach and this included allowing exceptions to the Fourth Amendment when balancing the interest of the public and the individual’s right to privacy under the Fourth Amendment (Lee, 8). According to Bascuas, the need to balance those interest have become all the more important with the “threat of future terrorist attacks” (719). Since the 2005 terrorist attack on London’s underground, New York City has implemented a warrantless search system on passengers in New York City’s subways (Bascuas, 721). The searches are consistent with the concept of consent searches as a prominent notice is displayed at the entrance of the subway stations alerting passengers to the fact that they will be subjected to a search. Therefore, passengers have an option to either submit to the search or leave the subway station and avoid the searches. The searches are considered reasonable in that the only other method for deterring terrorist attacks is to close the subway system down (MacWade v Kelly 275). In other words, once a passenger proceeds to enter the subway station, notwithstanding the notice of a search, the passenger is consenting to a search. The public has generally been supportive of these measures since it is considered by most nothing more than a mere inconvenience, necessary for quelling fears of a devastating terrorist attack (Bascuas, 722). Therefore, in many cases a consent to search which permits officers to forego the criteria usually associated with warrant searches, is seen as a necessary balancing act for protecting the public from the threat of terrorism. Sekhon also argues that consent on the part of a suspect is a critical part of the criminal justice system, without which the public would be less safe and secure from criminal activities (104). The US Constitution imposes significant “restrictions” on the judiciary and law enforcement and therefore limits the extent to which crimes can be detected, investigated and prosecuted (Sekhon, 104). Without the notion of consent which essentially involves the waiver of constitutional protections, many crimes would go undetected, undeterred and unprosecuted with significant social costs to the public. Just as the criminal justice system often relies on the suspect’s waiver of the right against self-incrimination and the resulting confession, the criminal justice system quite often relies on the suspect’s waiver of the right to privacy and the resulting consensual search (Sekhon, 104-105). Although consent searches may be seen as an efficient and effective method of deterring terrorists and protecting the public from the threat of terrorism, there are legitimate concerns about the use of consent searches in general. The subway searches and other terrorist prevention searches are usually specific in that officers at these checkpoints only search for explosives and do not generally read material found and do not look into compartments that would not be large enough to contain explosives (Sekhon, 106). In other words, the consent searches directed at detecting and preventing terrorist attacks on public transport systems are specific and do not appear to be a fishing expedition. This might explain why the public is amenable to these kinds of searches. Consent searches obtained in the course of a routine traffic stop however, does raise some issues for the public in relation to their view of the criminal justice system and the legitimacy of law enforcement (Gua, 759). As Gua argues: …consent searches during traffic stops offer police a way to expediently check motorists’ vehicles for contraband. Asking drivers for consent to search their vehicles however, may cause them to feel negatively about the encounter and, consequently, to question officers’ motives for pulling them over (579). Gau conducted a study using a logistic regression analysis on a sample of motorist in the US. The study was designed to test the hypothesis that motorist stopped and asked for consent to search their vehicles question procedural justice and whether or not the initial stop was legitimate. The study confirmed this hypothesis indicating that seeking consent searches during a routine traffic stop can damage public trust in the criminal justice system and police practices in general (Gau, 776). A study sponsored by the Policing and Reducing Crime Unit under the auspices of the Development and Statistics Directorate of the Home Office in England and Wales further questions the utility of consent searches. The resulting research report prepared by Miller, Bland and Quinton indicated that searches in general did not have a statistically significant impact on crime in terms of: …detecting offenders for the range of all crimes that they address, and a relatively small role in detecting offenders for such crimes that come to the attention of the police (6). It is important to note however, that this research was conducted prior to the acceleration of consent searches and searches in general in response to the terror attacks on the US in 2001. The general impact of searches on preventing and identifying terrorists is not included in the results of the study conducted by Miller, et al. Even so, Miller, et al., conceded that searches most likely have a deterrent effect on crime, but since this was not included in the study, it is not backed by empirical evidence (6). Regardless, the concept of consensual searches is important for the protection of the public as it provides law enforcement with an investigative tool for detecting, preventing and prosecuting crimes. Although consent searches may not always result in the detection of crimes, it is reasonable to assume that in many more cases, the mere threat of searches either deter or displace criminal offending. For example, a would-be terrorists seeking to enter the New York Subway system, aware of the implied consent to search the moment he/she enters the subway, will likely turn away. In this regard, the checkpoints for warrantless searches most likely deters and prevents crimes. The prevention of just one terrorist attack or violent crime in a public place is a significant contribution to public safety. Therefore, if consent searches prevent just one terrorist attack or violent offence in public or prevent the distribution of illicit drugs by one drug trafficker, consent searches serve a useful purpose in contributing to public safety. While some will regard the stopping and requests for searches as an indictment on the criminal justice system, many more feel more assured that law enforcement is doing all that they can to detect, prevent and prosecute crimes. The Individual Right to Privacy and Consent Searches The most contentious issue surrounding the individual’s right to privacy and consent searches is the extent to which an individual can voluntarily consent to a search when requested to submit to one by police officers. The case of Illinois v Rodriguez demonstrates the significance of voluntariness (177). In this case the former girlfriend of Rodriguez filed a police complaint alleging Rodriguez assaulted her. When the police showed up to investigate the complaint, the former girlfriend who as not a resident at Rodriguez’ apartment, let the officers into Rodriguez’s apartment while Rodriguez slept in his bedroom. Upon entering the apartment on the presumption that Rodriguez’ former girlfriend provided the necessary consent, police observed and collected illicit drugs. Upon entering Rodriguez’ bedroom where he remained asleep, police found and collected more illicit drugs. In both cases the drugs were in plain view (Illinois v Rodriguez, 177). The issue at trial was whether or not the evidence of possession of drugs was lawfully obtained and this rested on whether or not a third party could consent to a search on behalf of the individual. The US Supreme Court ruled that the evidence was inadmissible because consent had to be voluntary and in this regard the consent must be both intelligent and knowingly given. Since Rodriguez was asleep and his former girlfriend was not authorized to admit police or anyone into Rodriguez’ home, consent was not voluntarily given (Illinois v Rodriguez, 177). The obvious difficulty with this case was that evidence of drug possession was discovered by the police and because of a technicality regarding the issue of voluntary consent, police could not use that highly incriminating evidence against Rodriguez. The individual’s right to privacy under the Fourth Amendment restricts the use that police can make of evidence and demonstrates the importance of obtaining consent prior to conducting searches and collecting evidence. As the US Supreme Court ruled in Illinois v Rodriguez, the issue is not whether or not the defended gives his or her consent to law enforcement to search his person or property. It is a misconception of the protection enshrined in the Fourth Amendment. The issue is whether or not the search was reasonable and therefore consistent with the rights guaranteed under the Fourth Amendment (Illinois v Rodriguez, 177). As Justice Scalia of the US Supreme Court ruled, in assuring the defendant of his or her rights under the Fourth Amendment, the defendant is not assured that: …no government search of his house will occur unless he consents; but that no such search will occur that is unreasonable (Illinois v Rodriguez, 183). Therefore, the use of the word voluntariness confuses the issue of consent searches. The main issue is whether or not the consent was reasonably given and that police operated under the reasonable assumption that the consent was reasonably given (Williams, 73). The US Supreme Court had previously ruled that in order to determine whether or not consent to search was voluntary, determining whether or not it was giving knowingly and intelligently was only one factor to take into account (Schneckoth v Bustamonte, 218). At the end of the day the main question was whether or not in all the circumstances of the case, it can be said that the defendant voluntarily gave his or her consent to the search (Schneckoth v Bustamonte, 218). Therefore the test for determining whether or not the defendant voluntarily consented to the search is a subjective test and falls to be determined by reference to the specific facts and circumstances of the particular case. In other words, there is no blanket rule applicable to all cases. What may be reasonable in one case may be entirely unreasonable in another case. For instance, the case of the subway or airport security checkpoints are such that any person entering these checkpoints with notice of their existence are aware that that they are going to be searched if they enter the checkpoints and are therefore consenting to the search. Where an individual is asleep and his former girlfriend who does not live with him lets police officers into his apartment while he sleeps cannot be said to be consenting to a police search. Regardless, the idea of a citizen giving his or her consent voluntarily to a police officer who request it has been the subject of significant debate and contention. Nadler and Trout argue that when a police officer request permission to search an individual or an individuals’ property, the individual will typically feel “enormous pressure” to submit to the search and would therefore not voluntarily deny the police officer’s request for the search (327). As Maclin observes, the facts speak clearly to a lack of civilians feeling that they can voluntarily deny a police request to conduct a search of his or her person or his or her property. How else to explain the defendant who agrees to a police search of his or her car trunk, knowing full well that the police would find incriminating evidence with which to successfully prosecute him or her (Maclin, 28). Maclin goes on to argue: …a police request for consent, however gently phrased, is likely to be taken by even the toughest citizen as a command. Refusal of requested permission is thought by most of use to risk unpleasant, though unknown, consequences (28). According to Maclin, despite this reality, the US Supreme Court has led the way among the judiciary in the US for adopting the attitude that individuals have an authentic “choice when police request consent to search” (28). Thus the judiciary is generally of the opinion that individuals are not entitled to be informed of their right to refuse a request by police officers to conduct a search (United States v Drayton, 194). The fact that the judiciary has ruled that the defendant is not entitled to be informed of his or her right to refuse a request for permission to search, is inconsistent with the right against self-incrimination as contained in the US Constitution (Fifth Amendment). Again, just as a defendant waives his constitutionally protected right against self-incrimination by confessing to a crime, the individual can waive his right against self-incrimination by consenting to a search that he or she knows will produce incriminating evidence against him or her. The difference is however, that a confession will not be admitted unless there is evidence that the defendant has been informed of his or her right to remain silent and his or her right against self-incrimination (Simmons, 773). According to the Supreme Court and the judiciary in general, the defendant is not entitled to be informed of the consequences of a search in the event he or she waives the right to unreasonable searches and seizures as contemplated by the Fourth Amendment to the US Constitution. At the very least, the US judiciary does not permit an adverse inference to be drawn from the defendant’s refusal to allow a search at the request of a police officer. It was held in United States v Wood that to allow the defendant’s refusal to allow a search at the request of law enforcement would be inconsistent with the Fourth Amendment (946). Whether or not this is a fair application of the constitutional right against self-incrimination is questionable. The defendant only benefits from this protection after a search is requested and refused. As previously noted, many citizens do not know at the time of the request for permission to search that they will not be submitted to unpleasant consequences should they refuse consent. What the defendant knows at the time of the request is important because it is at that time that the decision is made. The fact that the defendant does not know that no adverse inference can be drawn from his or her refusal to consent to a police officer’s request for permission to search is of no avail to him or her. According to Sekhon, based on political and legal theory, an analysis of the concept of consent searches and the constitutionally protected right against unreasonable searches, an individual’s consent to a search is only reasonable if it is not coerced by the state or its agents (108). In this regard, an individual’s voluntary consent to a search should only be established if the individual has had an opportunity to take into account possible outcomes for him or her should he or she consent to a search. This is particularly so in cases where the state engages in “individually directed coercion” (Sekhon, 108). Individually direct coercion occurs when the state is attempting to collect evidence against an individual purely for punitive reasons. By contrast, generally-directed coercion on the part of the state occurs when the state is collecting evidence for non-punitive reasons and generally for public welfare cases (Sekhon, 108). In other words, if the police specifically targets an individual with the intention of finding criminal evidence of a crime, consent in such a case should be obtained on the basis of explicit notification of the intention and the possible outcomes should the individual consent to the search: individually directed coercion. However, where the state is looking generally to promote the public welfare, such as investigating a complaint or seeking to secure the public from an identifiable threat, the state is not required to explain the consequences of obtaining the individual’s consent as this is general directed coercion on the part of the state (Sekhon, 108-109). The difference between individually directed coercion and generally directed coercion is that the police in the latter are looking for a specific piece of evidence and might come across other evidence in the process. For example, a complaint to a police officer that one was robbed and the robber was observed taking the victim’s personal possessions next door. When the police investigate the complaint they will usually seek the permission of the occupants of the next door property to search for the victim’s personal possessions(Sekhon, 109). In such a case, there is no need to inform the occupants that should the police find anything other than the stolen property, it might be used against them and therefore they might wish to refuse consent. This would be indicative of police conducting what is regarded as individually directed coercion when in fact they are only looking for stolen property and not specifically targeting the occupants of the home (Sekhon, 109). The case is different when an individual is specifically targeted by the state. In such a case there should be informed consent (Sekhon, 109). In this regard informed consent refers to ensuring that the defendant is aware of the reasons for the search and the fact that the defendant has a right to refuse consent to the search. Whether or not this is practically possible will depend on the facts and circumstances of the case. Certainly, in a situation where the police are specifically targeting an individual, this will usually be practical. However, when police are conducting mass searches in traffic stops where they are looking for a specific criminal and not a profile of a criminal with the hopes of discovering one, this would not be practical. Generally directed coercion would obviously include cases such as those where the police establish checkpoints at the airport or at the subway station. In such a case, the police are not specifically targeting an individual with punishment as a goal. The police are performing a welfare function for the benefit of the public at large. Therefore, expressions of voluntary consent is not as important. Therefore, based on political and legal theory, there is expected to be a fair balance between what the public seeks to gain from the express and voluntary consent of the defendant and what the individual stands to lose in terms of his liberty and whether or not he deserves to have his liberty as the expense of the public at large. Conclusion Consent to search is a complex area of law as it raises issues of individual freedom and rights and the right of the public to be safe and secure. The police as agents of the state are mediators of those quite often conflicting rights. For the most part, the individual claiming the right to security and privacy in his person and property, can only enjoy those rights at the expense of public safety. As demonstrated in this paper, consent searches are necessary in the prevention of terrorist attacks. If police were required to obtain warrants prior to conducting those searches, terrorist would be at liberty to operate freely. This is because in order to obtain a search warrant, police are required to show probable cause. Quite often, terrorist operate underground and can only be detected just before or after a terrorist attack. In the absence of consent searches, police would necessarily have to be positioned throughout the subway station and on constant alert for behaviour that raises reasonable suspicion. This might come at a significant social cost as individuals would feel threatened by police presence on the subway trains and throughout the station. It is much more convenient for police to establish checkpoints for general searches to ensure that individuals entering the subway are not a threat to public safety. Although consent searches raises some significant issues regarding the extent to which it can be expected that citizens can actually voluntarily consent to searches, consent searches are important criminal investigation tools for police. Consent searches are necessary for foregoing the usual requirements for probable cause or acting on reasonable suspicion. In many cases, criminals operate in circumstances where police do not have the requisite probable cause nor reasonable suspicion. Allowing consent searches which more likely than not result in an individual consenting to search regardless of whether or not he or she wants to consent, permits police to detect and prevent crimes where they otherwise would not be able to do so. While this might be an inconvenience to those who value their privacy and the truly innocent, it is a small price to pay for the detection and prevention of serious crimes that threaten the public’s safety and security. Bibliography Bascuas, Ricardo, J. “Fourth Amendment Lessons from the Highway and the Subway: A Principled Approach to Suspicionless Searches.” Rutgers Law Journal, Vol. 38(2007): 719-791. Print. Friedman, Michael, J. “Another Stab at Schneckloth: The Problem of Limited Consent Searches and Plan View Seizures.” Journal of Criminal Law and Criminology, Vol. 89(1) (1998): 313-346. Print. Gau, Jacinta, M. “Consent Searches as a Threat to Procedural Justice and Police Legitimacy: An Analysis of Consent Request During Traffic Stops.” Criminal Justice Policy Review, Vol. 24(6) (November 2013): 759-777. Print. Horton v California, 496 US 128 (1990). Print. Illinois v Rodriguez 497 US 177 (1990). Print. Katz v US 389 US 347 (1967). Print. Lee, Cynthia. “Reasonableness with Teeth: The Future of Fourth Amendment Reasonableness Analysis.” Mississippi Law Journal, Vol. 81(5) (2012): 1-51. Print. Maclin, Tracey. “The Good and Bad News About Consent Searches in the Supreme Court.” McGeorge Law Review, Vol. 39 (2008): 27-82. Print. MacWade v Kelly 460 F 3d 275 (2d Cir 2006). Print. Miller, Joel; Bland, Nick, and Quinton, Paul. “The Impact of Stops and Searches on Crime and the Community.” Home Office Police Research Series Paper 127, (2000): 1-86. Print. Nadler, Janice and Trout, J. D. “The Language of Consent in Police Encounters.” In Solan, Lawrence (Ed.). The Oxford Handbook of Language and Law. Oxford: Oxford University Press, 2012, 326-339. Print. Schneckoth v Bustamonte 412 US 218 (1973). Sekhon, Nirej. “Willing Suspects and Docile Defendants: The Contradictory Role of Consent in Criminal Procedure.” Harvard Civil Rights-Civil Liberties Law Review, Vol. 46 (2011): 109-148. Print. Simmons, Ric. “Not ‘Voluntary’ But Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine”. Indiana Law Journal, Vol. 80 (2005): 773-824. Print. Stack, Rebecca, A. “Airport Drug Searches: Giving Consent to the Concept of Free and Voluntary Consent.” Virginia Law Review, Vol. 77(1), (February 1991) 183-209. Print. State v Carty 170 NJ 632 (2002). Print. United States v Drayton 536 US 194 (2002). Webb, Matthew, W.J. (2009). “Third-Party Consent Searches After Randolph: The Circuit Split Over Police Removal of an Objecting Tenant.” Fordham Law Review, Vol. 77: 3371-3419. Print. Whren v US 517 US 806 (1996). Print. Williams, Daniel, R. “Misplaced Angst: Another Look at Consent-Search Jurisprudence.” Indiana Law Journal, Vol. 82 (2007): 69-97. United States v Wood 106 F 3d 942 (10th Cir. 1997). Read More