Monday, September 15, 2014
Alexandra L. Pratt has posted The Need for 'Knowing': Why the Iowa Supreme Court Should Reject Schneckloth v. Bustamonte and Impose a 'Knowing' Standard to Evaluate the Voluntariness of Consent Under Article One, Section Eight (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
More than forty years ago, the United States Supreme Court decided Schneckloth v. Bustamonte. The decision, imposing a “totality of the circumstances” test to evaluate the voluntariness of consent, remains the binding federal standard and the subject of pervasive criticism — both then and now. In addition, consent continues to be law enforcement’s most common method to evade the constitutional requirements of both a warrant and probable cause. In its wake, state supreme courts remain free to independently interpret analogous state provisions and to either adhere to — or provide greater search protection than — the “totality” standard. Iowa has not yet resolved which standard article one, section eight necessitates. This Note argues that the analytical faults of Schneckloth, coupled with the numerous benefits and increased protections that a heightened standard provides, dictate that Iowa should adopt the standard Schneckloth rejected: “knowing” consent. Under this test, law enforcement must show that a suspect knew of his right to refuse consent to search.Consent forms provide the most effective method to demonstrate this knowledge and to avoid endless credibility debates. This Note further contends that the five most recent Iowa Supreme Court decisions considering the relationship between the federal and state search provisions demonstrate a perceivable shift away from the federal model and, more specifically, “totality”. This shows that the Iowa Supreme Court is perhaps ready to join those states already requiring “knowing” consent.