On April 4, 2014, Professor Alafair S. Burke presented a draft of her article “Consent Searches and Fourth Amendment Reasonableness” at Lewis & Clark Law School in Portland, Oregon.
In the article, forthcoming in Florida Law Review, Professor Burke argues that the Supreme Court’s emphasis on the reasonableness of police tactics in gaining consent and the reasonableness of the person giving consent has lost sight of the usual touchstone of Fourth Amendment reasonableness: a balancing of the government’s interests in searching and the effect on individual liberty and privacy.
She further argues that, as currently defined, the consent search doctrine does not reflect Fourth Amendment reasonableness.
To make consent searches more reflective of governmental interests, and to mitigate their costs to privacy, she maintains that courts should look not only at the voluntariness of the consent and the level of coercion used to obtain it, but also the reasonableness of the request for consent to search itself.
An examination of the request’s reasonableness would include a look at the government’s reasons for requesting consent and the scope of the consent requested.