Knowing "Consent" Means "Knowing Consent": The Underappreciated Wisdom of Justice Marshall's Schneckloth v. Bustamonte Dissent
Loewy, Arnold H.
This Article argues that the majority opinion in the Supreme Court’s decision in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), has led to a burgeoning jurisprudence of placing a premium on citizens’ ignorance of their Fourth Amendment rights. Police who have stopped a vehicle for a minor infraction, or for no infraction whatsoever, may simply ask the driver if they can search the car. Police do not have to inform the driver that he or she has a right to decline the search. While the majority would argue that such a warning would break the informality of the interaction between police and driver, the dissent states that the police could casually state that the driver can refuse. The police could use the following illustration: “Joe, I’d like you to let me search your car. You don’t have to if you don’t want to, but I’d sure appreciate it if you did.” No one need fear that informality will be broken. The Article puts forward Justice Thurgood Marshall’s Schneckloth dissent as a wise corrective measure to police valuing citizen ignorance. Justice Marshall clearly saw what the decision would do to the innocent, as well as the guilty, and perhaps most importantly to the Constitution that we are all supposed to live under.