Academic journal article Northwestern University Law Review

The Fallacy of a Colorblind Consent Search Doctrine

Academic journal article Northwestern University Law Review

The Fallacy of a Colorblind Consent Search Doctrine

Article excerpt

In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own.

-Justice Anthony M. Kennedy†

And when you think about why, in the African American community at least, there 's a lot of pain around what happened here, I think it's important to recognize that the African American community is looking at this issue through a set of experiences and a history that doesn't go away. . . . [T]hose sets of experiences inform how the African American community interprets what happened one night in Florida. And it's inescapable for people to bring those experiences to bear. The African American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws- everything from the death penalty to enforcement of our drug laws.

-President Barack Obama^


A man is walking home alone late one evening. A police officer approaches him and, relying on nothing more than a hunch, asks the man if he can search his backpack, which unbeknownst to the officer, contains a small amount of marijuana. Knowing that his bag contains contraband, why would the man consent to the search of his bag? The most obvious explanation is that he likely does not know that he has a constitutional right to refuse consent in such an encounter and that the police officer, lacking articulable reasonable suspicion, cannot lawfully compel his compliance. Regardless of whether he knows his rights, it is nonetheless natural to assume that such a request "originating from an authority" is "backed by force."1 Even if an officer has not expressly threatened physical force, the perceived risk of consequences for noncompliance can coerce consent from someone legally entitled to and preferring to refuse. Thus, while "[i]t may be rational to comply" with such a request to search, "that doesn't make it voluntary."2

In Schneckloth v. Bustamonte, the Supreme Court held that a warrantless search pursuant to consent-such as the hypothetical one above-is valid if the consent was voluntarily granted and invalid if it was the product of coercion.3 The "totality of the circumstances" are to be considered in making this determination, with attention paid to both "subtly coercive" police conduct and the "vulnerable subjective state of the person who consents."4 The Court explicitly identified "the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment" as examples of such relevant factors.5 Yet, turning back to the hypothetical above, does the race of the "consenting" man have a place in this totality test?

In 1980, United States v. Mendenhall suggested that it does-the Supreme Court acknowledged that the defendant may have felt "unusually threatened" because she was "a female and a Negro" and the police were white men.6 But the Court offered no explanation of why race was relevant to this inquiry and subsequently afforded it little weight in upholding the validity of the search.7 And in the years since, the Court has at least twice reviewed the validity of a consent search involving a person of color and in each case entirely omitted any mention of race.8 Rather, Mendenhall's recognition of the salience of race has been relegated to offhand footnotes,9 and lower courts have likewise all but ignored race when they walk through the Schneckloth analysis.10 These omissions are consistent with what scholars label the law's "systematic denial of the reality of the social meaning underlying" citizen-police encounters,11 particularly between persons of color and police.

This Note argues that Mendenhall's nod to race-while lacking in rhetorical and analytical vigor-was undeniably correct and that the subsequent colorblind gloss on the consent search doctrine was and remains misguided, unnecessary, and inconsistent with Schneckloth's command that all relevant circumstances be considered. …

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