“Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches

Article — Volume 104, Issue 2

104 Va. L. Rev. 301
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“Can we take a look inside your car?” More than half of all roadside searches begin this way. A consent search is a cop’s quickest and easiest way to look for evidence in a car, in a home, or on a suspect’s person. Perhaps because of that, it is not always clear in practice that answering no really means no. The Supreme Court has long held that consent searches must be completely voluntary or evidence stemming from that search may not be admitted against the suspect searched. This rule deters unconstitutional law enforcement tactics. But the Court has not provided the doctrinal tools to keep law enforcement in check. Appellate courts are currently free to review voluntariness only for “clear error” by the trial court, leading to a toothless review. This Note argues that voluntariness in consent searches must be reviewed de novo on appeal. This independent review doctrinally aligns with the Supreme Court’s criminal standard-of-review jurisprudence. In contrast, deferential review leaves criminal defendants with insufficient Due Process surrounding the waiver of constitutional rights. It allows individual trial courts, rather than appellate courts, to determine the substance of the law and allows similar facts to lead to different legal results. It thus leaves law enforcement officers with inadequate guidance on what the Fourth Amendment allows and demands. The inherent psychological pressure of being questioned by the police, cultural fear of law enforcement, and a pattern of discriminatory requests to search create situations likely to result in coercion. Although de novo review of voluntariness would lead to added burdens on the appellate docket, courts should grasp the nettle and take steps to unify the law.

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  Volume 104 / Issue 2  

Textualism and Statutory Precedents

By Anita S. Krishnakumar
104 Va. L. Rev. 157

Deregulation and the Subprime Crisis

By Paul G. Mahoney
104 Va. L. Rev. 235

“Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches

By James C. McGlinchy
104 Va. L. Rev. 301