Misplaced Angst---Another Look at Consent-Search Jurisprudence


Conventional scholarship misunderstands the judicial invocation of voluntariness when evaluating a purported consensual search. The key is to nail down more precisely what we mean by the term, consent. Most commentators mistakenly entwine consent and waiver, wrongly treating the act of consenting (to a search, to questioning, etc.) as an instance where the actor is waiving a constitutional right. That conceptual error promotes the view that consent refers to a subjective condition, a psychological state, which, in turn, spurs the expectation that voluntariness refers to a person's inner experience. On this view of consent, the person's inner experience is what gives consent its moral force. From this conceptual framework, the Supreme Court's consent-search jurisprudence is, indeed, a mess (and hence, angst-producing).

I explicate another conceptualization of consent, one that understands it to be an act, a speech-act which must be evaluated in terms of how we envision police-civilian encounters ought to occur. Voluntariness, then, is more a statement of approbation than a concept with its own substantive content. No one can be satisfied with the Court=s consent-search jurisprudence with the expectation that voluntariness actually means more than that. But once we understand the Court to be pursuing a normative vision of what we will and will not tolerate in the cat-and-mouse game of crime fighting, we can appropriately and meaningfully critique its decisions. And so, if we are to have angst over the Court's decisions concerning consent searches--and there may well be good reasons for it--the angst will arise not from metaphysical quarrels over what is voluntary and what is not, but from what the Court is willing to accept by way of police methodology.

Clarifying our terminology and modulating our expectations of what we mean to say when we use metaphysically laden terms sharpens our ability to critique the arguments of others. This article shows this to be true when it comes to critiquing the Supreme Court's consent-search jurisprudence.


Constitutional Law | Criminal Law | Criminal Procedure

Date of this Version

February 2006