CrimProf Blog

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

Friday, April 2, 2021

Tomkovicz on Implied Consent by Notice

 
Reasonableness is the touchstone of the Fourth Amendment; a search is per se unreasonable absent a warrant, but if the state has garnered consent from an individual, the subsequent search is deemed reasonable and not to have violated the Fourth Amendment. Because consent is a powerful exception, governments looking to establish valid search schemes are attempting to garner consent, specifically implied consent, by notifying individuals that specific actions will serve as consent to search.

Such attempts are not rare. This Comment focuses on three examples: the Denver Police Department’s use of signs notifying individuals in particular areas that their biometric data is being gathered, the City of Bristol’s street signs notifying individuals that parking in public spots serves as consent to search their vehicles for parking enforcement purposes, and, most famously, implied consent laws claiming that the issuance of a driver’s license serves as consent to a breathalyzer test. These examples all illustrate government attempts to use notice to effectuate implied consent to search.


This Comment argues that this approach to garnering implied consent to search is largely dishonest, despite the ubiquity of such laws in American society. The vast majority of attempts to use this approach do not comport with any definition of consent, especially not implied consent. Further, the Fourth Amendment’s consent exception requires a number of elements be met before consent can be satisfied. However, turning to the pervasively regulated industries exception for inspiration, this Comment proposes a four-element dispositive test to determine when notice can effectuate implied consent to search: tradition of search, consistency of search, revocability of consent, and most importantly, furthering of public safety.

https://lawprofessors.typepad.com/crimprof_blog/2021/04/tomkovicz-on-implied-consent-by-notice.html

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