Volume 1997    Issue 1

Rethinking Schneckloth v. Bustamonte: Incorporating Obedience Theory into the Supreme Court's Conception of Voluntary Consent

Adrian J. Barrio^*

The Fourth Amendment's twin probable cause and warrant requirements prohibit police officers from conducting arbitrary searches of a person's home, vehicle, or belongings. Due in part to the amendment's literal language, however, the Supreme Court has recognized various exceptions to these procedural safeguards. One of these exceptions, the consent search, has received a considerable amount of scholarly attention. Although few commentators have questioned the desirability of allowing a citizen to forsake important Fourth Amendment protections, many have challenged the Supreme Court's notion of voluntary consent and the legal fiction that it gives rise to--that the reasonable person feels comfortable declining police requests. The intractable reality, opponents assert, is that the vast majority of people are simply unaware that they may lawfully refuse these requests.

In this note, the author reassesses the Supreme Court's conception of voluntariness in light of modern psychological findings on authority and obedience. What currently passes as voluntary consent, he finds, may actually be the product of an extensively documented but rarely discussed social phenomenon--the tendency of most people to reflexively obey authority figures. To preserve the individual's autonomy in exercising Fourth Amendment rights, therefore, the author proposes that police officers be required to inform suspects of their right to withhold consent upon requesting their permission to search.

* Many thanks to Professors Kit Kinports and Andrew Leipold, who provided invaluable commentary on earlier drafts of this piece.