72 Am. U. L. Rev. 2017 (2023).
Why have U.S. civil rights organizations omitted the abolition of consent searches from the panoply of recommended police reforms? As over 90% of all searches of cars and pedestrians in the United States are based on consent, this begs the question. The Supreme Court created the consent loophole so that police who lacked probable cause could nevertheless search pockets and cars. In the American context, consent searches bolster racial profiling and enable police harassment.
Americans do not have to wait for the Court to change the law. States and cities have the power to close off this loophole through legislative action. In this regard, the Scottish Parliament provides an illuminating example. Scotland faced a problem with excessive stop-and-search, a practice resembling stop-andfrisk in the United States. Responding to the abusive over-policing, Scotland applied a legislative fix in 2016 that eliminated police consent searches. Harassment immediately decreased, with stops and searches falling from 600,000 stops per year to 40,000 in the first year after the law was enacted. Voluntary consent is an oxymoron in the United States, as it was in Scotland.
This Article looks at the current law reform efforts on consent searches in the United States, argues that state legislatures should follow Scotland’s example, and offers model legislation. Except where legal counsel provides advice on the waiver of rights, legislation should prevent the searches of bodies, cars, and homes based merely on a subject’s cooperation with the police.
* Professor of Law, Howard University School of Law. I thank Kaylah Alexander for her enthusiastic research assistance, Phyllis Goldfarb for insightful comments on an early draft, Howard University School of Law for a summer research stipend, and the members of the American University Law Review for shepherding this Article through the publication process. In addition, I owe great thanks to Patrice Sultan (founder and executive director of D.C. Justice Lab), who collaborated with me in creating legislation to eliminate consent searches in D.C.