History has proven Justice Marshall right.

If they display any firmness at all, a verbal expression of assent will undoubtedly be forthcoming. As Justice Thurgood Marshall explained in his dissent:Īll the police must do is conduct what will inevitably be a charade of asking for consent. Bustamonte (1973), which held that “consent” alone is a legal basis for search, even if the person searched was not aware of their right to refuse. The doctrinal original sin is Schneckloth v. The “consent search” end-run around the warrant requirement rests on a legal fiction: that people who say “yes” to an officer’s demand for “consent” have actually consented. Such “consent” requests must also be limited. For example, police use it to access data from home internet of things (IoT) devices, like Amazon Ring doorbell cameras, that are streamlined for bulk police requests. Other kinds of invasive digital searches currently rest on “consent,” too. And police must tell people they can refuse. The scope of consent must be narrowly construed. They must collect and publish statistics about consent searches, to deter and detect racial profiling. Police must have reasonable suspicion that crime is afoot. In less-coercive settings, such “consent searches” must be strictly limited. In highly coercive settings, like traffic stops, police must be banned from conducting “consent searches” of our phones and similar devices.

These misleadingly named “consent searches” invade our digital privacy, disparately burden people of color, undermine judicial supervision of police searches, and rest on a legal fiction. Police use this ploy, thousands of times every year, to evade the Fourth Amendment’s requirement that police obtain a warrant, based on a judge’s independent finding of probable cause of crime, before searching someone’s phone. If you’re like most people, you grudgingly comply. But they’ve got a badge and a gun, and you just want to go home. After you provide your license and registration, the officer catches you off guard by asking: “Since you’ve got nothing to hide, you don’t mind unlocking your phone for me, do you?” Of course, you don’t want the officer to copy or rummage through all the private information on your phone. Police pull you over, allegedly for a traffic violation. Imagine this scenario: You’re driving home.

Judicial consent scenes