Race and the Voluntariness of Consent

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Is a suspect’s race relevant when determining whether the suspect’s consent to search is voluntary? In a recent case, the court of appeals stated that it may be.

State v. Bartlett. The case is State v. Bartlett, ___ N.C. App. ___, ___ S.E.2d ___, 2018 WL 3732948 (Aug. 7, 2018). It began when five uniformed officers participated in a traffic stop of a vehicle in which a suspected drug dealer was a passenger. One officer ordered the defendant out of the vehicle and asked for and obtained consent to search the defendant. The officer found heroin during the search. The defendant contended, among other things, that his consent was not voluntary. Part of his argument was that “people of color will view a ‘request’ to search by the police as an inherently coercive command.” (The court’s opinion does not indicate the defendant’s race, but the NCDPS inmate locator website identifies him as black.)

The case reached the court of appeals, which agreed that the defendant’s “race may be a relevant factor in considering whether consent was voluntary under the totality of the circumstances.” But it found no other evidence that defendant’s consent was not voluntary: only one officer interacted with the defendant; the defendant did not testify that he was unaware of his ability to refuse the request or that he was afraid of retribution if he did so; and there was no indication that the officer threatened him, brandished his weapon, raised his voice, or made physical contact with the defendant. The court therefore ruled that the defendant’s consent was voluntary.

What’s the argument? The main thrust of the defendant’s argument is presented clearly in an article cited in the court’s opinion. In Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Crim’y 211 (2001), the author contends that

the reality facing African-Americans and other members of minority groups is this: they are more likely to be stopped, and more likely to be asked to consent to a search of their persons and property because of their color. And, because of the experiences in their community, they will frequently — if not usually — feel coerced to forego their constitutional right of privacy. The idea of a voluntary consent in such circumstances is a fantasy.

What have other courts said? I am not aware of many cases that support this position, perhaps because it doesn’t fit easily with the principle that the voluntariness of a suspect’s consent is based on whether a generic “reasonable person” would feel able to decline consent. See generally Florida v. Bostick, 501 U.S. 429 (1991) (noting the “reasonable person” standard). Nonetheless, there are at least a handful of opinions arguing that race should be considered when determining the voluntariness of a suspect’s consent. See, e.g., In re J.M., 619 A.2d 497 (D.C. Ct. App. 1992) (Mack, J., dissenting) (“I respectfully venture to suggest that no reasonable innocent black male[,] with any knowledge of American history[,] would feel free to ignore or walk away from a drug interdicting team.”); State v. Genre, 712 N.W.2d 624 (N.D. 2006) (listing race as a factor to be considered when determining voluntariness of consent).

What do the data say? Whether members of minority groups are, or at least feel, less free to refuse consent than whites is at least in part an empirical question. I looked for some data on rates of refusal by race, and the most pertinent study that I found was David Kessler, Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim. L. & Crim’y 51 (2008). Kessler asked 406 people whether they would have felt free to leave in two different scenarios in which a person is approached by a law enforcement officer. In other words, the study assessed willingness to refuse an interaction, not willingness to refuse a search. Still, the underlying dynamic is similar, and the results were interesting: Kessler found “no statistically significant differences between races or levels of income,” but did find that women and younger people were less likely to feel free to leave. Readers versed in this issue may know of additional studies, and if so, please post about them in the comments.

Although I wouldn’t have been shocked by a contrary result, neither am I surprised by what Kessler found. While many communities of color have challenging relationships with law enforcement, it doesn’t necessarily follow that members of those communities would be more likely to acquiesce to officers’ requests. Indeed, friction between law enforcement and communities of color might lead to more skepticism of law enforcement and so to less acquiescence.

I should add that Kessler’s main finding was that most people, regardless of race, don’t feel free to leave in circumstances that courts routinely view as consensual encounters. That concern is also present with regard to consent searches. The overwhelming majority of consent search requests are granted, even when the search is sure to reveal contraband, behavior that is hard to explain unless people, as a practical matter, don’t feel free to refuse consent. See, e.g., Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness, 67 Fla. L. Rev. 509 (2016) (collecting data, most of which shows that 90% or more of requests for consent are granted). That raises questions about the idea of voluntary consent generally, but those concerns aren’t race-related and so are beyond the scope of this particular post.

How would it work? The Bartlett court’s brief suggestion that race may be pertinent to voluntariness raises many questions that the court didn’t explore. Under what circumstances is it pertinent? How much weight should it be given? What relevance might it have for Latino suspects, Asians, Native Americans, or others? Does the suspect’s cultural background matter? Of course, voluntariness is determined under the totality of the circumstances so it may be impossible to answer these questions in advance. But they seem quite challenging to me, and I will be interested to see whether and how the seed planted in Bartlett grows.

Further reading. Those interested in this issue may wish to review the discussion of race and consent in Alyson Grine and Emily Coward’s book, Raising Issues of Race in North Carolina Criminal Cases (School of Government 2014).

5 comments on “Race and the Voluntariness of Consent

  1. In Black communities, they teach their kids to fight cops. That the cops are all out get them. That all white people are racists. So when the child grows up, they believe it is okay and righteous to fight back against the cops. We saw it in Ferguson. When the black teen, when approached by the white cop, attacked the cop and tried to grab the cops gun, which ended up with black kid getting shot. Then later the family, on TV, telling the community to go burn down white people’s business’ and homes and leave the black community’s homes and business’ alone. Happens all the time. You see them discussing fighting back against the cops and white people. In university of Missouri the students demanded an all black day, no whites allowed. When a white liberal professor pointed out the racism of that, he was threatened and assaulted so much he was forced to leave his job.

    You don’t need studies to see this happening all over the world. In South Africa, the government and it’s current president are pushing for taking land from white farmers. While they chant “Kill the Boer” which is a slang word for white person. Which has the effect of white farmers living in fear and under attack from random black people. Ending in death, rape and brutality.

    In the USA, it’s getting just as bad. Anti White sentiment is growing, and along with it is anti police rhetoric.

  2. I can’t imagine how any of you can’t see the ‘sheer bigotry’ you are displaying by even deigning to insinuate that Blacks are not just as capable as any other race to understand, and even exercise, their rights. Equal protection under the law ALSO means equal respect under the law. It is improper to treat Blacks ‘special’ or otherwise differently than any other person, only EQUALLY! This behavior is disgusting and quite unexpected from such an august organization. I’m quite disappointed in you.

  3. This is quite possibly the most ridiculous article this “organization” has ever written. The author has insinuated that black people aren’t smart enough to answer a simple yes or no question.

  4. I don’t think it’s so much the existing disparity as far as race is concerned here. I think it’s predominantly the ignorance of constitutional rights and laws, regardless of race, and in conjunction with it. It is a fact that some communities have more respect for those who enforce the law than others and still some that have more fear of the law enforcers than others, to be perfectly candid. Each adult citizen (and non-citizen for that matter) owes it to him/her self to educate themselves concerning their basic rights under the law. In African-American urban communities there is generally a distrust of government and law enforcement and this distrust effectively blocks communication efforts of community leaders on both sides, citizen and gov’t, to bridge the gap. This is evident at citizen police academies, where police procedures (and the reasons thereto) are taught to those who express interest, across the country. Rarely are there A/A citizens who take the time to attend.

  5. Many of these roadside searches hinge on the woof or twitch of Lassie…inerpreted by the K9 officer no less. A dog basically masks the probable cause defense in any denial of search..it really stumps me as to why we even have the term probable cause when the officer on scene can basically call in a mutt to nullify your rights..how about when they are wrong and the police find nothing, and your left with scratches and damage to your car interior or paint? Does Lassie pay for repairs or the officer? Picture this I bought a Chevy Suburban from a seller on EBay and during transit to my state by a transport company on a open trailer semi the state police pulled the semi over to search the Suburban on the top of the double decker trailer, their probable cause? A California license plate..what? No other reason given to the transport truck driver, just that they wanted to search my Suburban. They said the dog couldn’t get up to the top to search in on the upper level of the trailer, so the officers climbed up and entered my vehicle ( no Lassie probable cause here) and took it apart inside with screwdrivers and pry bars… They found nothing after the an hour on the roadside. I had not even taken physical possession of the vehicle but it was registered in Michigan and insured in my name. They screwed up body panels banging the doors on the trailer structure and interior parts galore, power lock actuators and such. I called the Mi State police to see about a police report on the incident and findings as well as the officers names…STONE WALL. Great , my new vehicle damaged without probable cause…before I ever even sat in it.

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