Consent Searches

Susan A. Bandes (DePaul University – College of Law) has posted Police Accountability and the Problem of Regulating Consent Searches (University of Illinois Law Review, Vol. 2018, 2018) on SSRN. Here is the abstract:

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 combating 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?

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