Reading rights and respecting decisions: an experimental test of consent search warnings

ABSTRACT

Consent waivers are a leading source of warrantless searches, although there is considerable debate whether these searches are truly knowing and voluntary. Scholars have called for Miranda-like warnings informing subjects of their right to refuse consent, which the Supreme Court has rejected. Some empirical evidence suggests that consent warnings would be ineffective, but no study evaluates the effectiveness of warnings suggested by Justice Thurgood Marshall, that police indicate a person may refuse consent and that the officer would respect their decision to decline. This study explores how the content of consent warnings might impact decisions to decline search requests. It was hypothesized that participants given Justice Marshall’s ‘I will respect your decision’ statement would be more likely to decline a request than a control group. The hypotheses were tested through an experimental design with vignettes read by 359 crowd-sourced internet participants. In two of the three scenarios participants who were given the Justice Marshall instructions (right to decline and officer would respect decision) had higher levels of refusal to assent to the search. The results suggest that in some contexts the nature of consent search warnings may make recipients less likely to waive their constitutional protections from unreasonable searches.

KEYWORDS:

• Police searches
• consent
• constitutional rights
• police legitimacy

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. For example, as Justice Stewart wrote for the majority in Bustamonte v. Schneckloth, 1973, p.219, “It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable … subject only to a few specifically established and well-delineated exceptions.” See also Harris v. United States, 1947 at 162 “[W]ith minor and severely confined exceptions … every search is unreasonable when made without a magistrate’s authority expressed through a validly issued warrant” (Justice Frankfurter, dissenting).

2. There are other potential options for redress, such as lawsuits under 42 U.S.C. § 1983; however these are difficult actions to pursue and win, and a successful 1983 action is practically unheard of for a run-of-the-mine violation during a casual encounter such as a Terry stop or consent request search (see Dripps 1990; Maclin, 1993; Patton 1993). Citizens can also lodge a complaint against an officer, but these are seldom sustained and officers experience little in the way of sanctions (Terrill & Ingram, 2016).

3. The facts of Schneckloth involved a routine traffic stop in the early morning hours for a faulty headlight and license plate light. During the course of the stop the officer asked permission to search the car to which one of the passengers responded, “Sure, go ahead” (Schneckloth, 1973, p.220), with the search turning up stolen checks which ultimately led to Robert Clyde Bustamonte’s conviction.

4. Similarly, U.S. v. Drayton, 2002, involved a drug interdiction team which boarded a cross-country bus during a scheduled stop. One officer stood blocking the exit while two other officers approached each passenger asking for consent to search their luggage. Despite what some viewed as the coercive factors of passengers seeming blocked in, the Court focused on the fact that the officer asked permission to search – they did not command a search. While an officer was stationed at the bus exit, the passengers were not detained since, in the Court’s view, a reasonable person would have felt free to get up and leave. These and similar cases (e.g., Florida v. Bostick) suggest that a request for consent in a clearly custodial setting might provide a key element of involuntariness. These cases illustrate the “metamorphosis” (Phillips 2008, p.1190) whereby the Court now appears to have shifted entirely away from the subjective totality of the circumstances inquiry outlined in Schneckloth, to a fully objective test illustrated by Drayton, in which the question of voluntariness revolves around what the Court’s hypothetical reasonable person would have felt – not what the specific subject of the search would have felt.

5. Sutherland (2006) tested for the influence of a host of the various factors the Supreme Court, lower courts, and academics have suggested might be relevant to the totality of the circumstances analysis – these included things like police claim of authority, show of force, threat to seek a warrant, maturity and sophistication of the subject, whether they spoke English, and location of the search, among many others. The strongest and only statistically significant factors predicting whether a court would grant a suppression motion of the basis of lack of consent were indicators of police misconduct, other Fourth Amendment violations, or police threats.

6. The instrument was first tested on students at a law school in the Midwest.

7. An attention check (see Scurich and Monahan 2016; Oppenheimer, Meyvis, and Davidenko 2009), was also included, which 3 participants failed.

8. Overall, there were notable differences between the sample and the U.S. population. White respondents were somewhat overrepresented (80% here compared to around 76% in the general population and Black respondents underrepresented (7% here compared to around 14% in the general population) (U.S. Census Bureau, 2022). In addition the sample was more liberal (55% compared to 35% in the general population) and less moderate (23% compared to 42%) with the same proportion of conservatives identified (22% versus 23% in the general population) (General Social Survey, 2022). The sample participants also were more likely to live in a rural setting (33% versus 14% in the general population) and more likely to live in an urban setting (47% compared to 31%) and less likely to live in a suburban area (19% compared to 55% in the general population) (Parker et al. 2018). As mentioned in the discussion, it is thus unclear whether the results are generalizable to the U.S. population at large. It is also unclear what results might be found among a population more likely to experience higher rates of police consent requests – i.e., a population that is younger, male, non-white, and urban, compared to the general population.

9. In addition, a 3 × 3 mixed model ANOVA was estimated for each of the dependent variables with the advisory condition as the between-subjects factor and the scenario as the within-subjects repeated measure. These models tested for the interaction between condition and scenario across vignettes and provide an overall estimate of the advisory across the scenarios. For the felt freedom measure, the within-subjects effects (scenarios) were statistically significant for both the main effect (df = 2; ms = 9276.347; F = 27.932; p = .000) and the scenario*advisory condition interaction effect (df = 4; ms = 3088.873; F = 9.301; p = .000). The between-subjects effects were significant (df = 2; ms =  17,830.688; F = 6.720; p = .001). For the binary outcome, the within-subjects were statistically significant for both the main effect (df = 2; ms = 9.794; F = 92.923; p = .000) and the interaction (df = 4; ms =.638; F = 6.057; p = .000). The between-subjects effects were also significant (df = 2; ms = 2.811; F = 8.720; p = .000). These supplemental analyses suggest the type of advisory warning did make a difference in the hypothesized direction. However, as the interactions were significant, the results also indicate the advisory condition generated different patterns across the vignettes. Due to the varying factors at play between the scenarios (expounded on in the discussion), the primary analysis focuses on the within-scenario findings.

10. Average Marginal Effects are essentially predicted probabilities or expected values calculated from the observations for each case. For dummy variables, the AME is the mean of differences in predictions for each observation when moving from 0 to 1, leaving the rest of the data unchanged. For continuous variables, the AMEs are the means of instantaneous rates of change at each value of the variable over all observations (see Williams, 2012).

11. These findings might invite the Court’s reconsideration of its assumption that the reasonable person is adequately protected by the current voluntariness test. It appears that people usually submit to a consent request in the real-world context whereas they usually indicate they would decline consent in a simulation, suggesting the real-world power dynamic creates an inherent intimidation that undermines intentions related to a constitutional right.