By Kate Weisburd
Scholars and advocates have long argued that a person's consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a "choice" is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. The definition of a seizure, the third-party doctrine, custodial confessions, plea bargains, and agreements to alternatives to incarceration (such as GPS ankle monitoring) all hinge on the idea of voluntary choices-choices that are often just as coerced and uninformed as the choice to consent to a search.Given these concerns, this Article asks: What would happen if consent were eliminated from criminal procedure doctrines? This question is not merely academic. In recent years, a number of jurisdictions have substantially limited or eliminated traditional police searches based on consent. These reform efforts allow us to consider if there is something uniquely coercive or inequitable about consent searches that makes them especially amenable to reform or if we should consider eliminating consent in other criminal procedure doctrines as well.This Article takes on these questions. Drawing on both an original national survey of recent consent-search reforms and a transsubstantive analysis of consent and waiver in a range of criminal procedure doctrines, this Article analyzes the potential ramifications of eliminating (or limiting) consent. In doing so, this Article reveals the extent to which consent plays a pivotal role in upholding—and justifying—the entire operation of the criminal justice system.
.California Law Review (2025), UC Law San Francisco Research Paper Forthcoming,
