On "Consenting" versus "Submitting" to a Search
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Some down-to-earth bloggers (that's not necessarily an insult) are lampooning a report in the Village Voice, in the wake of New York's plan to conduct random suspicionless searches in its mass transit system, that includes this link for "I Do Not Consent to Being Searched" t-shirts.
Without passing judgment on the t-shirt idea, I do think it's important for laypersons to understand the true meaning of "consent searches."
If you've ever watched an episode of COPS, you know that the first question any law enforcement official will ask is "Do you mind if I look inside the vehicle?" or "May I search your bag?" If you assent, then you have instantly forfeited all your Fourth Amendment rights, even if the officer committed other Fourth Amendment violations (e.g., pulled you over impermissibly) -- see Zap v. U.S., 328 US 624 (1946).
Stated differently, consenting to a search is a specifically defined act with significant legal and constitutional consequences. No one ever need consent to a search, and no one ever should.
It's easy to confuse consenting to a search with submitting to a search. Consenting means you don't care whether the police (or TSA or IRS or Border Patrol or whomever) have proper authority to conduct the search. Submitting to a search means that you are allowing the search only because the government has asserted that it has such authority. If you submit to a search, and push comes to shove, the burden is on the government to prove that the search was constitutionally valid. If you consent to the search, on the other hand, the government is required to show absolutely nothing, except that your consent was knowing and voluntary -- see Bumper v. North Carolina, 391 U.S. 543 (1968).
In the context of the mass transit searches, which I still insist are constitutionally suspect, the distinction between consenting and submitting is all-important, and should not be mocked, either by bloggers or by t-shirt capitalists. It is also misguided to put the cart before the horse and argue that "if you want to ride the subway, then you must consent to the search." "Must consent" is a contradiction in terms, comparable to "compulsory volunteerism." The very fact that the government is claiming the authority to prevent you from riding mass transit by definition means the search is not voluntary and that any search subsequent to the new policy is not a "consent search" in the constitutional sense -- unless you make it so!
If you happen to be stopped for a search such as this, you should not say "Yes I consent" or "Sure, go ahead." Rather try saying something like "I consent to nothing, but if you are requiring me to submit to a search, then I will comply." That may sound a little too "Borg drone," but it should preserve your Fourth Amendment rights.
Without passing judgment on the t-shirt idea, I do think it's important for laypersons to understand the true meaning of "consent searches."
If you've ever watched an episode of COPS, you know that the first question any law enforcement official will ask is "Do you mind if I look inside the vehicle?" or "May I search your bag?" If you assent, then you have instantly forfeited all your Fourth Amendment rights, even if the officer committed other Fourth Amendment violations (e.g., pulled you over impermissibly) -- see Zap v. U.S., 328 US 624 (1946).
Stated differently, consenting to a search is a specifically defined act with significant legal and constitutional consequences. No one ever need consent to a search, and no one ever should.
It's easy to confuse consenting to a search with submitting to a search. Consenting means you don't care whether the police (or TSA or IRS or Border Patrol or whomever) have proper authority to conduct the search. Submitting to a search means that you are allowing the search only because the government has asserted that it has such authority. If you submit to a search, and push comes to shove, the burden is on the government to prove that the search was constitutionally valid. If you consent to the search, on the other hand, the government is required to show absolutely nothing, except that your consent was knowing and voluntary -- see Bumper v. North Carolina, 391 U.S. 543 (1968).
In the context of the mass transit searches, which I still insist are constitutionally suspect, the distinction between consenting and submitting is all-important, and should not be mocked, either by bloggers or by t-shirt capitalists. It is also misguided to put the cart before the horse and argue that "if you want to ride the subway, then you must consent to the search." "Must consent" is a contradiction in terms, comparable to "compulsory volunteerism." The very fact that the government is claiming the authority to prevent you from riding mass transit by definition means the search is not voluntary and that any search subsequent to the new policy is not a "consent search" in the constitutional sense -- unless you make it so!
If you happen to be stopped for a search such as this, you should not say "Yes I consent" or "Sure, go ahead." Rather try saying something like "I consent to nothing, but if you are requiring me to submit to a search, then I will comply." That may sound a little too "Borg drone," but it should preserve your Fourth Amendment rights.
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Posted by KipEsquire on
22 July 2005
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