The Fourth Amendment on the road.

Settled Fourth Amendment doctrine holds that a citizen's consent to a search makes the search reasonable per se. Consent effectively provides a substitute for both probable cause and a search warrant.

The consent theory seems reasonable enough when a citizen, speaking to police officers through the peephole of the locked door of a residence, agrees to open the door. Most consent cases, however, involve searches of vehicles or personal effects, not searches of homes.

Courts frequently accept the claim that a citizen, detained for investigation under Terry v. Ohio(1) or purled over for a traffic violation, consented to a search that disclosed illegal drugs. Why would someone with illegal drugs consent to a search that could lead to a long term in prison? The obvious answer is that the person did not feel free to withhold consent.

The Supreme Court held more than 20 years ago that a detained citizen may give effective consent to a search even though the police did not utter a Miranda-style warning, informing the citizen that he or she has the right to refuse.(2) In Schneckloth V. Bustamonte, the Court held that consent is valid if voluntarily given and that voluntariness is "a question of fact to be determined from the totality of all the circumstances."(3) Justice Thurgood Marshall, dissenting, argued that "consent is ordinarily given as acquiescence in an implicit claim of authority to search."(4)

Police have accepted Bustamonte's invitation to use traffic stops for drug enforcement.(5) It is a common ploy for the officer to ask, "Just one more thing. You don't have drugs or guns in that gym bag, do you?"

If the answer is "Yes," the officer has probable cause to search. When the answer is "No," the officer replies, "Then you wouldn't mind if I took a look in there, would you?" The citizen can hardly refuse.

Partly because the courts have accepted such consent as a matter of law, and partly because it is difficult to refute police testimony at the suppression hearing that the consent was valid, the tactical focus in consent cases is rarely on validity of the consent. Defendants do better to challenge the legality of the initial detention. If the police detained the suspect without reasonable justification under Terry, drugs discovered during the search are fruit of a poisonous tree.

In effect, this arrangement treats authority for a search as implied by the authority to stop a vehicle or person.(6) Yet, as the Supreme Court made clear in Terry and its companion cases, authority to stop does not always confer authority to frisk.(7) The consent doctrine now in practice elevates the authority to stop to the level of the authority to search.

Regarding pedestrians, the situation is mitigated by the Terry standard for stops: The police must possess articulable facts that justify the belief that criminal activity is afoot. Regarding motorists, the situation is not so mitigated, because police responsibility for traffic enforcement confers a practically boundless authority to stop.(8) As a result, the police have fumed to traffic stops as a drug interdiction technique.

Court-supported police search

Last term, the Supreme Court closed one avenue of attack against this use of traffic stops for drug enforcement purposes. In Whren v. United States,(9) vice squad officers wearing plain clothes in an unmarked car stopped a vehicle for making an unsignaled turn and for traveling at an unreasonable speed. When an officer approached the driver's window, he observed drugs in plain view.

Why were vice squad officers stopping a vehicle to enforce traffic regulations? The car's occupants argued that the police should not be allowed to invoke traffic laws to justify a stop unless a reasonable police officer would have stopped the vehicle for that purpose.

The Supreme Court unanimously rejected this claim. If the police, in fact, had probable cause to stop the vehicle for purposes of either a traffic warning or a citation, the fact that the police were really interested in drug enforcement was irrelevant. "Subjective intentions play no role in ordinary, probable cause Fourth Amendment cases," said the Court.(10) Thus, Whren effectively gutted the Terry limit on police authority to stop motorists for investigation.

Given the incentive thus created to stop motorists, one might have supposed that the justices would develop measures to better protect citizens' theoretical right to refuse a search. In Ohio v. Robinette,(11) however, the Court reaffirmed Schneckloth v. Bustamonte and held that the Fourth Amendment does not require police to advise citizens of their right to refuse to give consent.

Robinette was stopped by Deputy Roger Newsome on an interstate highway for driving 69 mph through a construction zone with a posted speed limit of 45 mph. After Newsome warned him of the speeding violation, the deputy ran a check on Robinette's driver's license. No violations were disclosed. Newsome then asked Robinette to get out of the car. He activated the video camera in the police cruiser and administered the warning about speeding in the construction zone.

Then Newsome said, "One question before you get gone: Are you carrying any illegal contraband in your car? Any weapons of any kind? Drugs? Anything like that?" The deputy then asked for consent to search the vehicle, and Robinette gave it. The deputy found a small quantity of marijuana and an amphetamine pill.(12)

The Ohio Supreme Court divided this encounter into two parts. First, there was a valid stop to issue a warning about speeding. Second, there was an unjustified search of the vehicle that could not be saved by the driver's consent because the consent was tainted by the coercive influence of the stop.

Once the deputy gave the warning, justification for the stop ended. All further interactions, according to the Ohio court, must be consensual. This was not possible unless the coercive effect of the stop were first dispelled by an explicit warning of the right to refuse consent to the search. "Any attempt at consensual interrogation must be preceded by the phrase, `at this time you are legally free to go' or by words of similar import," said the Ohio court.(13)

The court did not require that such a warning be given whenever the police seek consent from a detained motorist. The court adopted a more modest rule requiring a warning once the justification for a coercive stop has ended. If Deputy Newsome had stopped Robinette because of a reasonable suspicion that Robinette was carrying drugs, the rule would not have required a warning before asking for consent.

Even this modest limitation was too much for the U.S. Supreme Court. Writing for eight justices, Chief Justice William Rehnquist reaffirmed Bustamonte "totality of the circumstances" approach. He declared that "it would be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary."(14)

Whren and Robinette invite police to stop far more vehicles than traffic enforcement requires. If, as Deputy Newsome testified he does, police routinely ask people stopped for traffic violations to consent to a search, and if most of those asked feel compelled to consent, the only security against searches lies in the apparently impossible challenge of perfect driving.

Devising a workable warning

The Court mn hardly be unaware of the incentives its ruling has created. The Whren Court was probably right to reject a test directed at improper police motives, because these inquiries are practically unworkable. In any event, actual justification for a search shouldn't be forfeited because of a government agent's state of mind.

The warning proposed in Robinette has its own problems. Like Miranda's warning of the right to remain silent, the warning might not dispel the inherent coercion of official detention. As the Ohio Supreme Court opinion suggests, the warning might be clear enough, but when the warning requirement should come into play might prove troublesome.

One alternative might be to recognize the obvious: When the police "ask" for consent, they are engaged in a coercive investigative practice. As the Ohio Supreme Court recognized, asking for consent prolongs the detention.(15) Also, the fear and hostility aroused by a traffic stop are categorically different than the fear and hostility aroused by imputation of involvement in the drug trade. The former is a game of cat and mouse; the latter is deadly serious business that can send people to jail for life.

The conversion of a traffic stop into a drug investigation demands constitutional justification. Under this approach, the police could ask for consent when a consensual search could confirm or dispel the suspicion that justified the stop.

For example, if the police stopped the driver because they suspected the presence of drugs in the car, asking consent to search the trunk or the glove box would be permissible. However, because searching the trunk or the glove box would do nothing to shed light on speeding or a lapsed registration, the authority to stop for traffic enforcement could not be so easily converted into authority to search.

Such an approach would restore the basic rule of Teng, which the police could otherwise evade by invoking the traffic laws. Yet, it does not require warnings or an inquiry into the officer's mental state. In effect, it would give citizens and police the same rights on the road that they have on the sidewalk.

In a country that pretty much lives on the road, that seems like a sensible balance to strike.

Notes

(1.) 392 U.S. 1 (1968) (a police officer may approach a person for purposes of investigating criminal behavior even though there is no probable cause for arrest).

(2.) Miranda v. Arizona, 384 U.S. 436 (1965).

(3.) 412 U.S. 218, 227 (1973).

(4.) Id. at 289 (Marshall, J., dissenting).

(5.) See Wayne LaFave, The Present and Future Fourth Amendment, 1995 ILL. L. REV. 111, 118 ("In an incredible number of drug cases, the encounter with the police began with a seemingly innocuous traffic violation, such as a momentary movement of a tire onto the fog line at the right edge of the highway or a breaking of the 65 mph speed limit by but a few miles, well short of the customary tolerance.").

(6.) See William Stuntz, Privacy's Problems and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1064 (1995) ("[T]he real standard . . . is . . . a kind of Jeopardy rule: If the officer puts his command in the form of a question, consent is deemed voluntary and the evidence comes in.").

(7.) Sibron v. New York, 392 U.S. 40, 64 (1968) ("The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.").

(8.) See, e.g., Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 TEMP L. REV. 221, 223 (1994) ("The innumerable rules and regulations governing vehicular travel make it difficult not to violate one of them at one time or another. 'Very few drivers can traverse any appreciable distance without violating some traffic regulation."'(citation omitted)).

(9.) 116 S. Ct. 1769 (1996).

(10.) Id. at 1775.

(11.) 65 U.S.L.W. 4013 (No. 95-891) (Nov. 18,1996).

(12.) This account of the facts is drawn from the Ohio Supreme Court's opinion. See State v. Robinette, 653 N.E.2d 695 (Ohio 1995).

(13.) Id at 699.

(14.) 65 U.S.L.W. 4013, 4015.

(15.) "The sole purpose of the continued detention was to illegally broaden the scope of the original detention." 653 N.E.2d 695, 698.