CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, February 1, 2005

New Article Spotlight: Analyzing the Consent Searches Doctrine

SimmonsCrimProf Ric Simmons of Ohio State has published Not "Voluntary" But Still Reasonable:  A New Paradigm for Understanding the Consent Searches Doctrine in the Indiana Law Journal.  Here's the abstract:

In the wake of the recent Supreme Court case United States v. Drayton, this article dissects the current jurisprudence regarding consensual searches, which seems to be disconnected from the practical reality of a police/civilian interaction. My thesis is that we need a new paradigm for evaluating these searches, both to assist courts in judging the validity of consent, and also to better understand how courts are arriving at the decisions that they make. Under the old paradigm, courts have been using the "voluntariness" paradigm, derived from the Due Process clause, which (in theory) looks to the subjective state of mind of the individual being searched to determine whether the consent was "voluntary."

I argue that this paradigm is clumsy and fails to capture the critical nuances of the interaction between the police and civilians. It is so unworkable that the Supreme Court has already begun using a different test in practice, even as it maintains the rhetoric of "voluntariness." I therefore propose that we adopt a "compulsion" paradigm, based on the reasonableness standard of the Fourth Amendment. Under this new paradigm, the court would conduct a purely objective inquiry into the conduct of the law enforcement official. As part of the inquiry, the court would examine the degree of compulsion that was applied and also evaluate the types of compulsion used by the law enforcement officer. I justify my theory through an examination of the consent searches jurisprudence, a comparison with the voluntary confession jurisprudence, and a review of psychological studies on obedience to authority.

To obtain a copy of the paper, click here.  [Mark Godsey]

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I'm in the middle of litigating a third party consent (spouse) to a computer containing child pornography. It's a situation where the accused refused consent and was detained while the OSI went to get consent from the spouse. They then used various tactics to get consent from the spouse.

This article is most helpful.


Posted by: Phil Cave | Feb 2, 2005 8:02:43 AM

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