Race and the Voluntariness of Consent

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).

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