Recommended Citation

David B. Owens, Consent Searches as Police Violence, 85 Ohio St. L.J. Online 1 (2024), https://digitalcommons.law.uw.edu/faculty-articles/1138

Authors

David B. Owens, University of Washington School of LawFollow

Consent Searches as Police Violence

Publication Title

Ohio State Law Journal Online

Keywords

consent doctrine, consent searches, Fourth Amendment, police violence

Document Type

Article

Abstract

Henderson and Krishnamurthi’s new paper—A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment (hereinafter Sheep’s Attire)— powerfully advocates for reform to the consent doctrine. The paper is thoughtful, well-intentioned, and useful for challenging core assumptions about the law to help us evaluate how it should work. The piece is also fun to read as the authors breathe real-world insight into old doctrine. In the end, though the article flirts with a categorical rule about consent searches, and while the authors “think it categorically unreasonable for police to ask individuals to forgo their rights” in the context of Fourth Amendment searches premised on consent, they stop short of calling for a total ban on consent searches. Instead, they seek to abolish the Fourth Amendment consent doctrine except in various “emergency” circumstances.

This response makes four points. The first two address the ubiquity of racialized police violence in America and how this fact (of both present and history) may impact how to view the proposal in Sheep’s Attire. Particularly when juxtaposed against the legacy and reality of racialized terror, I suggest, police seeking consent to search may amount to act of violence or a very real threat of violence. The third point deals with the emergency-only proposal and raises some doubts about how issues related to the “emergency” doctrine will be adjudicated. The emergency-only consent doctrine is creative, but it seems the proposal does not solve all of the problems it sets out to fix and may necessarily involve unbalanced adjudication about what constitutes an “emergency” that ditching the inquiry about “what constitutes consent” was supposed to fix because it will still be judges making the decisions (and often relying on police narrative versus a criminal defendant to resolve them). Fourth, in risky fashion, I offer a proposal that does not involve abolishing the notion of consent searches categorically, or limiting them to emergency situations. Instead, what if we consider that the issue of voluntariness of any situation where consent is sought should be a question of fact decided by a jury rather than a question of law decided by a judge? In this thought experiment, imagine that the question of whether a search is consensual is not decide by a judge using some invented set of factors but is, instead, placed in the hands of the legal system’s proxy for democratic adjudication—the jury. Thorny questions about how consent is defined wash away. Thorny questions about what constitutes an emergency and other inquires mandated by the Henderson-Krishnamurthi proposal also fade away. In this universe, a pre-trial jury answers the question, plain and simple.