No Equal Justice: Race and Class in the American Criminal Justice System available in Paperback
No Equal Justice is the seminal work on race- and class-based double standards in criminal justice. Hailed as a “shocking and necessary book” by The Economist , it has become the standard reference point for anyone trying to understand the fundamental inequalities in the American legal system. The book, written by constitutional law scholar and civil liberties advocate David Cole, was named the best nonfiction book of 1999 by the Boston Book Review and the best book on an issue of national policy by the American Political Science Association.
No Equal Justice examines subjects ranging from police behavior and jury selection to sentencing, and argues that our system does not merely fail to live up to the promise of equality, but actively requires double standards to operate. Such disparities,Cole argues, allow the privileged to enjoy constitutional protections from police power without paying the costs associated with extending those protections across the board to minorities and the poor.
|Publisher:||New Press, The|
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About the Author
David Cole is the George Mitchell Professor of Law and Public Policy at Georgetown University Law Center. He is also a regular contributor to the New York Review of Books and the legal affairs correspondent for The Nation. He is the author of No Equal Justice: Race and Class in the American Criminal Justice System , the American Book Award–winning Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism , and The Torture Memos: Rationalizing the Unthinkable and is a co-author (with James Dempsey) of Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security and (with Jules Lobel) of Less Safe, Less Free: Why America Is Losing the War on Terror , both published by The New Press. He lives in Washington, D.C.
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Policing Race and Class
Miami to Atlanta is 663 miles. If you had a choice, you'd fly. Those who can't afford air travel often make the trip by bus, a grueling nineteen-hour ride. On August 27, 1985, Terrance Bostick, a twenty-eight-year-old black man, was sleeping in the back seat of a Greyhound bus, on his way from Miami to Atlanta, when he awoke to find two police officers standing over him. They were wearing bright green "raid" jackets bearing the Broward County Sheriffs Office insignia and displaying their badges; one held a gun in a plastic gun pouch. The bus was stopped at a brief layover in Fort Lauderdale, and the officers were "working the bus," looking for persons who might be carrying drugs.
Upon waking Bostick, the officers asked for his identification and ticket. He complied. They then asked to search his bag. Again, Bostick complied, somewhat inexplicably, because upon opening the bag, the officers found a pound of cocaine. The officers admitted that at no time prior to the search did they have any basis for suspecting Bostick of any criminal activity.
Bus and train sweeps of this kind are a common method of drug enforcement investigations. Police board buses or trains at intermediate stops to exploit the fact that the traveler has nowhere to go. In theory, passengers have a constitutional right to refuse to answer any questions, and to say no when a police officer asks to search their luggage. In practice, virtually everybody talks and consents. One officer testified that he had searched 3,000 bags without once being refused consent. The tactic works. In West Palm Beach alone, bus sweeps over a thirteen-month period netted 300 pounds of cocaine, 800 pounds of marijuana, 24 handguns, and 75 suspected drug "mules." But whether it should be constitutional raises fundamental questions about the role of race in law enforcement decisionmaking, and about the courts' responsibility to police the police.
When prosecutors charged Bostick with drug possession, he challenged the police officer's conduct, and the Florida Supreme Court held it unconstitutional. The court reasoned that Bostick had effectively been "seized" when the officers cornered him at the back of the bus, because at that moment he was not free to leave. The Fourth Amendment forbids the police from seizing individuals without some individualized suspicion that they have committed or are committing a crime, and the police admitted they had none for Bostick. The remedy for such a violationunder the Fourth Amendment's "exclusionary rule"is that the prosecution may not use evidence obtained by the encounter to establish its case. In addition to holding the evidence inadmissible against Bostick, the Florida Supreme Court broadly condemned "bus sweeps," likening them to methods used by totalitarian states:
[T]he evidence in this case has evoked images of other days, under other flags, when no man traveled his nation's roads or railways without fear of unwarranted interruption, by individuals who had temporary power in the Government . . . This is not Hitler's Berlin, nor Stalin's Moscow, nor is it white supremacist South Africa. Yet in Broward County, Florida, these police officers approach every person on board buses and trains ("that time permits") and check identification, tickets, ask to search luggageall in the name of "voluntary cooperation" with law enforcement?
Florida's Attorney General appealed to the U.S. Supreme Court, which agreed to hear the case. In the Supreme Court, Bostick was represented by Donald Ayer, a highly respected Washington lawyer with impeccable conservative credentials. A Republican, Ayer had clerked for Chief Justice William Rehnquist. Shortly before taking Bostick's case, he had stepped down from a position as the Deputy Solicitor General, where he had represented the Reagan administration in some of its most politically charged cases before the Supreme Court. Ayer felt that this was a case of law enforcement going too far, and offered to handle Bostick's case pro bono before the Supreme Court. Ayer convinced Americans for Effective Law Enforcement, a pro-law-enforcement organization that had previously filed eighty-five amicus briefs in the Supreme Court, all supporting the police, to file an amicus brief on Bostick's behalf urging the Court to find an unreasonable seizure in this case.
The principles at stake were fairly basic. The Fourth Amendment prohibits "unreasonable searches and seizures," and the Supreme Court had previously held that a "seizure" is unreasonable without some articulable reason, specific to the individual, for suspecting crime. Seizures come in two varieties: full-scale arrests, which require probable cause that the individual has committed a crime; and brief "stops," which require only a reasonable suspicion that crime is afoot. But all seizures require at least some degree of individualized suspicion, and the police had admitted that they had none when they approached Bostick.
Not every encounter between a citizen and a police officer, however, is a "seizure" that must be justified under the Fourth Amendment. Otherwise, police officers would not be able to approach anyone on the street without first having grounds to suspect criminal conduct. In prior cases, the Court had ruled that a police officer "seizes" an individual when "by means of physical force or show of authority, [the officer] has restrained [the citizen's] liberty," and that the relevant question is whether a reasonable person in the citizen's shoes would feel "free to disregard the [officer's] questions and walk away."
Few of us, awakened in the middle of a marathon bus ride by armed police officers standing over us, asking for our identification and requesting to search our bags, would feel free to tell the officers to mind their own business. But the Supreme Court's "reasonable person" apparently has a lot more mettle than the average Joe. The Court had previously ruled, for example, that a traveler approached by police in an airport and asked to show his identification and ticket was not "seized" by the encounter, because a "reasonable person" would feel free to walk away. As long as the police do not convey a message that their requests must be obeyed, the Court ruled, they can approach citizens without any basis for suspicion, interrogate them, ask to see their identification, and request to search their luggage.
But even accepting the dubious proposition that a passenger walking through an airport will feel free to ignore an approaching police officer, Ayer argued, it is quite another thing to say that a reasonable person in Bostick's place would have felt free to ignore the two officers who stood above him in the bus aisle, blocking the only way out. Even if Bostick had been able to push his way around the officers and get off the bus, he would have found himself in the middle of rural Florida, far from his destination, and separated from any luggage he'd checked. If he chose to remain on the bus but to refuse to cooperate, he might reasonably have predicted that his conduct would raise police suspicion, and lead to their searching his bags anyway, or worse. The encounter was not truly consensual, as Bostick's conduct demonstrated. Indeed, Ayer argued, no "reasonable person" would agree to a search of a bag that contained a pound of cocaine if he really believed he was free to say no without adverse consequences.
The Supreme Court rejected Ayer's arguments, and reversed the Florida Supreme Court. The proper test, the Court explained, was not whether a reasonable person in Bostick's shoes would have felt free to leavethe test the Court had used until Bostick's case but to terminate the encounter. The Court posited that even if he didn't feel free to leave, a "reasonable person" would have felt free to sit there and adamantly refuse to answer the police officer's questions. That Bostick was on a bus may well have restricted his freedom to walk away, but, the Court reasoned, that wasn't the police's fault. The police did not make him get on the bus. They merely found him there. Bostick would have to point to something extraordinary in the police officer's conduct to establish that he had been "seized." The mere fact that they had boarded the bus en route, were standing over him, blocking his exit, displaying badges and a gun, and directing questions at him was not enough.
The consequence of Florida v. Bostick is that police are free to engage in dragnet-like searches of buses and trains, in settings where it is extremely difficult for any citizen to refuse to cooperate. As long as the police do not effect a "seizure," there are no Fourth Amendment limits whatsoever on whom they approach or what questions they ask. They could routinely direct such inquiries at every person on every bus, train, and for that matter, airplane in America.
By adopting a "reasonable person" standard that is patently fictional, this ruling allows the police to engage in substantial coercion under the rubric of "consent," without any limits on the persons to whom that coercion can be applied. As federal judge Prentice Marshall explained in a separate case, "[i]mplicit in the introduction of the [officer] and the initial questioning is a show of authority to which the average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse an answer." The Court's test assumes the opposite, and finds coercion only where police engage in some coercive conduct above and beyond their inherent authority. For all practical purposes, the Court's test erases the inherently coercive nature of all police encounters from the legal calculus for determining whether a Fourth Amendment "seizure" has occurred? As long as police officers use only the inherent coercion of their own official identity, they are free to seek citizens' "cooperation" for questioning and searches. In Bostick the Court went still further, permitting the police to exploit circumstances that independently constrain citizens' freedom to escape an encounter with the police.
The Court's reasonable person fiction has its benefits. It substantially reduces the law enforcement costs that would result were the Fourth Amendment applied to all nonconsensual encounters. By adopting a standard that ignores the coercion inherent even in a situation such as Bostick's, the Court permits the police to engage in a wide range of nonconsensual, coercive intrusions on privacy without any basis for individualized suspicion.
At first glance, this fiction deprives all of us of our Fourth Amendment rights; it equally ignores the coerciveness of police encounters with rich white businessmen and unemployed black teenagers. But this standard will have very different effects on the poor and the wealthy, and on minority and white citizens. First, the police are far more likely to use this unfettered discretion against black teenagers than white executives. In practice, the police are selective about their targets. This is partly a matter of resources; the personnel required to confront all travelers would be extraordinary, and the yield would likely be small, because the vast majority of travelers presumably are not carrying contraband. Selective enforcement may also, however, reflect a savvy political judgment; if the police did in fact inflict such suspicionless treatment on everyone, there would likely be sufficient political will to curtail the practice politically, either by legislation or by community pressure on police departments.
So the police "work the buses" selectively, and because in the Court's view no "seizure" takes place, they need not explain how they select their targets. Targets could be selected at random, on the basis of unadulterated hunches, or, more likely, on the basis of unspoken stereotypes and assumptions about the kind of traveler likely to be carrying contraband. There is good reason to believe that minorities in general, and young black men in particular (such as Terrance Bostick), are disproportionately targeted. This tactic is practiced not on airplanes, but on buses and trains, modes of transportation more frequently used by poor and minority travelers. Once on the train, few officers will choose to approach an elderly white woman or a well-dressed businessman over a young black man "roughly dressed." There are few available statistics on the racial breakdown of police stops. Where reported cases discuss bus and train sweeps, however, the defendants are virtually always black or Hispanic. A search of all reported federal bus and train sweep cases from January 1, 1993, to August 22, 1995, found that, of fifty-five cases in which the defendant's race could be identified, thirty-six were black, eleven were Hispanic, one was Asian, one was Filipino, and six were white. As Justice Thurgood Marshall stated in dissent in Bostick, "the basis of the decision to single out particular passengers during a suspicionless sweep is less likely to be inarticulable than unspeakable."
Thus, although the doctrine leaves the police free to target whomever they please, the targets will not be random; by and large they will be young black men. All relevant data from arrest rates to conviction rates to victim reportingsuggest that young people are more likely to commit crime than old people, men more likely than women, and black people more likely than white people. The disproportionate numbers of young black men in prison and jail disparities that cannot be explained by discriminatory policing or prosecuting alonesuggest that if police are going to be guided not by individualized suspicion but by more general characteristics, the odds of discovering some evidence of crime will be greater if they stop young black men. By permitting the police to use what is actually quite coercive behavior without any articulable basis for individualized suspicion, the Court's standard encourages the police to act on race-based judgments.
Second, the Court's "objective," one-size-fits-all reasonable person standard fails to take into account that citizens may be differently situated with respect to encounters with the police. It would seem noncontroversial, for example, that a fourteen-year-old child would feel less free to terminate an encounter with a police officer than a fifty-year-old member of Congress, even if the encounters were identical in all other respects. Yet the Supreme Court has held that the reasonable person standard "does not vary with the state of mind of the particular individual being approached," and "calls for consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police." Applying that ruling, the District of Columbia Court of Appeals held that the same reasonable person standard applies to a fourteen-year-old child as to an adult.
A citizen's prior experiences with the police are also likely to play a part in how coercive an encounter seems. As the acquittal of O.J. Simpson dramatically illustrated, there is little love lost between the black community and the police in many areas of the nation. A survey of the Los Angeles Police Department found that one-quarter of the 650 officers responding agreed that "racial bias (prejudice) on the part of officers toward minority citizens currently exists and contributes to a negative interaction between police and the community," and that "an officer's prejudice toward the suspect's race may lead to the use of excessive force." For a host of reasons, from the disproportionate number of blacks behind bars today, to the historical use of the criminal justice system to maintain racial subordination, to the contemporary treatment of blacks on the streets by many police, the black community has a low level of trust for the criminal justice system, and for the police in particular.
The videotaped beating of Rodney King by officers of the Los Angeles Police Department encapsulated for many blacks the treatment they expect and fear from the police. As California Assemblyman Curtis Tucker was quoted as saying at a subsequent hearing on LAPD practices, "When black people in Los Angeles see a police car approaching, 'They don't know whether justice will be meted out or whether judge,jury and executioner is pulling up behind them.'" Similarly, a black man encountering a police officer in the Bronx today cannot help being affected by the knowledge that police officers there have engaged in a practice of indiscriminate beatings of minority citizens in order to establish their authority. In 1994, the Mollen Commission reported on widespread police corruption and brutality in the Bronx. One officer testified that he was called "the Mechanic," because "I used to tune people up," a "police word for beatin' up people." He testified that the beating was widespread:
Q. Did you beat people up who you arrested?
A. No. We just beat people up in general. If they're on the street,
hanging around drug locations. JustIt was a show of force.
Q. Why were these beatings done?
A. To show who was in charge. We were in charge, the police.
The officer admitted that most of the victims were black and Hispanic, although he denied that the attacks were racially motivated. He conceded that the neighborhood residents hated the police, saying, "You'd hate the police too, if you lived there."
The Mollen Commission found that police corruption, brutality, and violence were present in every high-crime precinct with an active narcotics trade that it studied, all of which have predominantly minority populations. It found disturbing patterns of police corruption and brutality, including stealing from drug dealers, engaging in unlawful searches, seizures, and car stops, dealing and using drugs, lying in order to justify unlawful searches and arrests and to forestall complaints of abuse, and indiscriminate beating of innocent and guilty alike. The commission found that police officers and supervisors often accepted lying and brutality as necessary aspects of the job, in part because of what they perceived to be unrealistic legal constraints, and in part because of the police officers' "Us vs. Them" mentality, particularly in minority communities.
Similar practices were ongoing in Philadelphia, as Arthur Colbert, a black college student from Michigan, learned first-hand in 1991 when he made the mistake of getting lost in North Philadelphia while looking for his date. Two police officers looking for a drug dealer named Hakim pulled Colbert over, put him in a police van, and took him to an abandoned house, where they repeatedly accused him of being Hakim. Colbert showed them his Temple University ID and his driver's license, but they were not deterred. The officers hit him with their flashlights and a two-by-four. When Colbert still would not admit to being Hakim, one officer put his gun to Colbert's head and said, "If you don't tell us what we want to know, I'm going to blow your head away. You have three seconds." He cocked the gun's hammer and began to count down: "Three . . . two . . . one." But there wasn't anything Colbert could tell them, because he wasn't Hakim, and had never even heard of Hakim. The officers ultimately let him go without charges.
This was only one of many such stories uncovered in a corruption investigation in Philadelphia, which found a pattern of misconduct directed at the predominantly poor black neighborhood of North Philadelphia. In the early 1990s, a group of police officers there engaged in a widespread practice of beating and robbing citizens, planting evidence, and lying to support false convictions. The investigation's disclosures led to several criminal convictions of the police officers, and reversals of over fifty criminal convictions obtained on the strength of the officers' testimony.
Stories of black men being stopped by the police for no apparent reason other than the color of their skin are so common that they are not even considered news, and often get reported only when the victims happen to be celebrities or the confrontation is captured on film. In 1988, Joe Morgan, former All-Star second baseman for the Cincinnati Reds, was at Los Angeles International Airport waiting for a flight to Tucson. According to Morgan and an eyewitness, a police officer approached Morgan while he was making a phone call, said he was conducting a drug investigation, asked for his identification, and accused him of traveling with another person suspected of dealing drugs. Morgan objected, and turned to get his identification from his luggage, forty feet away. The officer grabbed him from behind, forced him to the floor, handcuffed him, put his hand over Morgan's mouth and nose, and led him off to a small room, where the police ascertained that Morgan was not traveling with the suspected drug dealer after all. The police maintained that Morgan had been hostile throughout the encounter, and that he had been forced to the floor only after he started swinging his arms. Even by the police officer's own account, however, the only basis for approaching Morgan in the first place was that another black man, stopped as a suspected drug dealer, had told the officers that he was traveling with a man that "looked like himself." As a result, the officers were on the lookout for a black man, and Joe Morgan fit that description.
In 1989, former police officer Don Jackson was doing a news story about police abuse against black men in Long Beach, California, when he was pulled over by the police on Martin Luther King, Jr., Boulevard, allegedly for straddling lanes. When he asked why he was being stopped, an officer pushed him through a plate glass store window. NBC captured the incident on film. In 1992, the ABC newsmagazine "20/20" conducted an experiment, sending out two groups of young menone white, the other blackon successive evenings in Los Angeles. They drove in identical cars and took identical routes at identical times. The black group was stopped and questioned by police on several occasions in one evening, while the white group saw police cars pass them by sixteen times without showing any interest.
In 1990 the Massachusetts Attorney General's Civil Rights Division issued a report condemning the Boston Police Department for a practice of subjecting black citizens to unconstitutional stops and searches. The report recounted more than fifty such incidents in 1989 and 1990. The incidents followed the Boston Police Department's announcement of a policy of searching on sight "known gang members" in Roxbury, a predominantly black neighborhood in Boston. A deputy superintendent admitted that he had instructed his officers to "stop and frisk any known gang members in a gang location where there has been high-crime problems . . ., and if there are other kids with the gangs that are not known to us, that we will search them too for the protection of my officers." The report also discussed widespread complaints that the Boston Police Department had responded to the killing of a white woman, Carol Stuart, by engaging in unconstitutional stops, searches, and interrogations of young black men. Carol Stuart was in fact killed by her husband, Charles Stuart, a white man, who then falsely claimed that a black man had killed his wife.
As a result of such experiences, and the recounting of these and countless similar tales within the black community, black citizens, and particularly young black men, are likely to feel considerably less comfortable than members of other demographic groups in their encounters with police officers. Those practices were the backdrop for the encounter between the Broward County officials and Terrance Bostick, just as they are the backdrop for any encounter between a police officer and a black citizen. As Judge Julia Cooper Mack of the District of Columbia Court of Appeals put it in another case, "no reasonable innocent black male (with any knowledge of American history) would feel free to ignore or walk away from a drug interdiction team." Yet the Supreme Court did not even mention Bostick's race.
The Court's use of a uniform reasonable-person standard effectively sanctions greater coercion against those more vulnerable to police authority. By failing to consider the citizen's prior experiences with the police in determining whether a "seizure" has occurred, the Court permits the police to employ, on average, more coercion against black persons than against whites. The history of police practices against black citizens means that the same police conduct will be more threatening when directed against a black man than when directed against a white man. The objective standard builds that inequality into the criminal justice system, and sanctions it under the rubric of applying the same standard to all.
The effect is to tolerate a double standard. Most citizens will not be approached by a police officer for questioning unless the officer has some objective grounds for suspecting that they are involved in criminal activity. Our freedom to walk the streets is protected, in other words, by the constitutional requirement of probable cause. But young black men will routinely be subjected to police stops, not rising to the legal formality of "seizures," simply because they are young black men. At the same time, the police will be able to apply more coercion to black citizens than to whites in such "noncoercive" encounters, because the Court's legal standard presumes that we all have the same set of experiences vis-a-vis the police, and that none of us has any reason to feel coerced by an "ordinary" police encounter. As a result, the Court has it both waysit protects the rights of some, but avoids the cost of extending the same protections equally to all.
Terrance Bostick had a choice. The police officers asked him whether they could search his bag. They did so because they had no legal authority to demand that he submit to such a search. The Supreme Court has held that the police generally cannot conduct a search without obtaining a warrant, which must be based on probable cause that evidence of a crime is likely to be found in the area to be searched. Because the police had no reason to suspect Bostick was carrying drugs or anything else unlawful, they could not have searched or seized his bag. So they asked his permission.
According to the police's story, they even told Bostick he had the right to say no. Yet knowing that his bag contained a pound of cocaine, Bostick agreed to let the police open it. Had an attorney been at Bostick's side, his advice would have been simple: "Just say no." The Fourth Amendment guarantees the right to refuse to consent to such a request. And a citizen's exercise of that right does not authorize the police to take more intrusive steps. Had Bostick known and believed this, he would certainly have said no. He had everything to lose and nothing to gain by saying "yes." Yet, like thousands of others in similar circumstances, he said yes.
The Supreme Court has held that "consent searches" satisfy the Constitution so long as the government demonstrates that the consent was "voluntary." But as with the test for identifying a seizure, the Court has created a standard for consent that effectively countenances the coercion of unknowing and involuntary consents. And as with bus and train sweeps, those who are coerced into giving their consent are most likely to be the young, the poor, the uneducated, and the nonwhite.
In theory it makes good sense to say that a search conducted by consent of the party searched is constitutional. Like other constitutional rights, the Fourth Amendment right to be free of unreasonable searches and seizures is "waivable"; that is, a person is free to choose not to exercise the right. Where an individual has made such a choice, there is no benefit to barring the search, and there may be some benefit to permitting iteither the police will find what they are looking for, or they won't and can focus their investigation elsewhere, allowing the individual to continue on his way.
But the Supreme Court is usually skeptical of claims that citizens have waived their constitutional rights (because it is so rarely in one's interest to do so). Thus, in every other setting the Supreme Court has held that the government bears the burden of demonstrating that a waiver was "knowing, intelligent, and voluntary." When a defendant pleads guilty to a criminal charge, for example, the judge must first inform him of the consequences of his actions, and must ensure that he is acting voluntarily and knowingly. Similarly, when a citizen takes action that by statute has the effect of surrendering his citizenshipsuch as enlisting in a foreign armythe government cannot in fact revoke his citizenship absent a showing that he took the action voluntarily and with full knowledge of the consequences. This strict waiver standard also applies to Miranda rights in a custodial interrogation, and to the right to have an attorney present at an identification lineup.
Yet consent searches, the Supreme Court held, do not require such a showing. In this setting, the Court merely requires that consent be "voluntary," not that it be knowing and intelligent. As a result, the police officers who approached Bostick did not have to tell him that he had a right to say no. In 1973, the Supreme Court explicitly rejected such a requirement. In Schneckloth v. Bustamonte, police officers pulled over a car at 2:40 A.M. for driving with a burntout headlight and license-plate light. They ordered all six occupants out of the car, and then asked the owner, Robert Bustamonte, if they could search the car. He consented, and in the ensuing search the officers found three stolen checks. Bustamonte argued that the evidence should be suppressed because the police never told him he had the right to decline their request to search. How could he have meaningfully waived his constitutional right, he asked, without knowing that he had the right in the first place?
Bustamonte's argument was not without strong precedent. Only seven years earlier, the Supreme Court had held, in Miranda v. Arizona, that police officers must give a warning and establish a knowing, intelligent, and voluntary waiver of rights before obtaining a confession from a person in custody. Although the "Miranda warning" was formally based on the Fifth Amendment's privilege against compelled self-incrimination, it was driven by equality concerns: the Court thought that requiring that every suspect be read his rights and provided an attorney on request would put all interrogation suspects on relatively equal footing. In addition, such warnings would help to dissipate the coercion otherwise inherent in such encounters.
Bustamonte argued that requiring a warning in the consent search setting would similarly give every citizen a roughly equal opportunity to assert her rights, and offset some of the coercion inherent in a police-citizen encounter. Yet in a 6-3 decision, the Supreme Court declined to extend Miranda's reasoning to consent searches. The Court held that the "waiver" line of cases was limited to rights closely associated with trial rights. It reasoned that unlike waiver of a trial right, consent to a search is generally obtained in a fluid situation not susceptible to the strict showings required in the highly structured setting of a trial. But that contention does not adequately distinguish the Court's application of the waiver standard to other nontrial constitutional rights, such as Miranda rights, rights of citizenship, and the right to be represented during a police lineup.
The real reason the Court rejected a warning requirement is found elsewhere in its opinion. The Court stressed that consent searches are an important investigative tool, and that the Court must balance the "legitimate need for such searches and the equally important requirement of assuring the absence of coercion." The most important consideration in that balance was the Court's view that "the community has a real interest in encouraging consent." Requiring a knowing, intelligent, and voluntary waiver would "in practice, create serious doubt whether consent searches could continue to be conducted." And requiring a warning would be "thoroughly impractical," the Court reasoned, despite the fact that federal agents were already in the practice of giving such warnings. In other words, the Court declined to require a warning because warnings would undermine the community's interest in "encouraging consent." But of course warnings would only discourage consent if individuals were saying yes because they did not know they had the right to say no.
The consent-search doctrine thus intentionally exploits the ignorance of the citizenry to reduce the law enforcement costs of the Fourth Amendment. It creates a constitutional loophole, by which police can and do routinely search people's bags without any articulable basis for suspecting that they are carrying contraband. Requiring warnings would, the Court feared, close that loophole. It would seriously hamper investigative efforts used in bus and train sweeps, airport drug-courier investigations, and car stops.
The Supreme Court recently reaffirmed its desire not to discourage consent by providing citizens with information about their rights. Ohio v. Robinette arose out of a routine traffic stop in Ohio, when a police officer pulled over Robert Robinette for speeding. After checking Robinette's license and issuing a warning, but before telling Robinette that he could leave, the officer ordered him out of the car, turned on a video camera in the officer's car, and returned to ask Robinette whether he was carrying any drugs and whether he would consent to a search of his car. Robinette testified that he "automatically" consented. The police officer found a small amount of marijuana and a pill that turned out to be methamphetamine. The Ohio Supreme Court ruled that the officer had extended the stop beyond its legitimate traffic law enforcement purpose and had exploited the coercive setting of the traffic stop to wrest consent to search from Robinette. Noting that traffic stops were increasingly being used for such "consent" searches, and reasoning that "a 'consensual encounter' immediately following a detention is likely to be imbued with the authoritative aura of the detention," the Ohio Supreme Court adopted a bright-line rule requiring police officers to tell drivers they are free to leave before asking for consent to search. The United States Supreme Court reversed, holding that it would be "unrealistic" to require such a warning. Thus, police are free to use not only the confines of a bus or train to "encourage" consent, but also the coercive setting of a traffic stop.
Such reliance on ignorance and thinly veiled coercion is deeply troubling. As a very different Supreme Court said in 1964, "no system of criminal justice can, or should survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights. The current system creates two Fourth Amendments-- one for people who are aware of their right to say no and confident enough to assert that right against a police officer, and another for those who do not know their rights or are afraid to assert them.
This double standard would be problematic even if it did not closely parallel race and class lines. But like the "reasonable person" standard, the consent doctrine in application is likely to reflect race and class divisions. Because a consent search requires no objective individualized suspicion, it is more likely to be directed at poor young black men than wealthy white elderly women. In addition, those who are white and wealthy are more likely to know their rights and to feel secure in asserting them.
In Schneckloth v. Bustamonte, the Court dismissed the concern that its rule would "relegate the Fourth Amendment to the special province of 'the sophisticated, the knowledgeable, and the privileged.'" It cautioned that the "voluntariness" inquiry "has always taken into account evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights." In theory, the voluntariness inquiryunlike the reasonable person standard used to tell whether someone has been "seized"does allow for consideration of the different situations of each individual approached. In practice, however, the courts find consent to be voluntary in all but the most extreme circumstances. Ray O'Brien, a Georgetown University Law Center student, reviewed all cases involving consent searches decided by the United States Court of Appeals for the D.C. Circuit from January 1, 1989, to April 15, 1995. In every case in which the validity of consent was challenged, the court found the consent voluntary.
In most of the cases, the courts did not even discuss the subjective factors that the Supreme Court in Schneckloth said would be relevant in determining voluntariness. When they did mention them, the courts turned a blind eye to factors strongly suggesting a less than voluntary encounter. In one case, for example, the police obtained consent to search an eighteen-year-old woman at 3:40 A.M. outside a bus station. An expert witness testified that the woman had an IQ only six points above mild retardation, had been in special-education classes before she dropped out of school in ninth grade, read at a second-grade level and wrote at a third-grade level, and was suffering from a borderline personality disorder. Yet the court found her consent voluntary, stressing the absence of threatening behavior by the police officers.
In another case, the court found voluntary consent where a twenty-four-year-old defendant with only a tenth-grade education had on four previous occasions refused consent to police requests to search, only to be searched anyway each time. And in still another, the court noted that the defendant was young, foreign born, poorly educated, not fluent in English, and ignorant of his rights, only to hold that the trial court had not erroneously found his consent voluntary. If these factors do not support a finding that consent is involuntary, it is difficult to imagine what set of circumstances would invalidate consent.
Instead of focusing on the subjective characteristics of the defendant, courts generally focus on the conduct of the police. On that question, it will virtually always be a matter of the police officer's word against that of the defendant, who has by definition been found to be carrying contraband (because cases in which no contraband is found will rarely reach the courts). The difficulty of determining the truth concerning such encounters has long been recognized in the interrogation setting. Indeed, it was largely for that reason that the Supreme Court shifted from a case-by-case analysis of whether confessions were "voluntary" to the across-the-board requirement of the Miranda rules. Yet in the consent- search context, the courts have continued to engage in precisely the case-by-case inquiry that they recognized as deeply problematic in the interrogation setting.
Whether an individual's consent to search can ever be truly voluntary is also rendered doubtful by the courts' failure to protect the right to say no. The courts have never clearly answered a basic question: can the police use an individual's exercise of her right to say no as a basis for developing suspicion justifying a nonconsensual search? If the police can use a citizen's negative answer against her, then she is not truly free to say no. The Supreme Court has said that the refusal to consent, "without more," does not justify a search, but has not ruled on whether a refusal can be one factor among many contributing to the justification for a nonconsensual stop or search. Some courts have allowed the police to rely at least in part on a suspect's refusal to consent to search to justify further police action. The U.S. Court of Appeals for the D.C. Circuit has ruled that the manner in which a defendant withdraws consent to a search may be considered as a factor supporting reasonable suspicion. Other courts have held that a refusal cannot be considered at all. The very fact that the law is unclear on this point means that a citizen confronted by the police cannot know whether her choice to say no will be held against her.
The situation on the ground may even be worse: one of my students reports that when she attempted to teach the consent doctrine to prisoners at a federal prison in Virginia, her predominantly black and Hispanic students ridiculed the notion. They maintained that although it might be true that she, a white woman, had the right not to consent, if they declined consent, the police would either beat them or go ahead and search anyway, and then testify that they had consented. It is of course difficult to verify such statements, but that perception itself will factor into a citizen's decision to assert her rights.
The foreseeable impact of a rule that does not require the police in inherently coercive settings to inform people of their rights is that those who do not know their rights, and those who lack the assurance to assert their rights, will not in fact enjoy the protection of those rights. In Schneckloth itself, the Court admitted that informing citizens of their rights would be costly because it would discourage consent. But if that is the case, then the Court has consciously created a regime designed to coerce the less well educated and the less self-assured among us to surrender their constitutional rights.