The Need for 'Knowing': Why the Iowa Supreme Court Should Reject Schneckloth v. Bustamonte

The Need for “Knowing”: Why the Iowa Supreme Court Should Reject Schneckloth v. Bustamonte Alexandra L. Pratt  ABSTRACT: More than 40 years ago, the United States Supreme Court decided Schneckloth v. Bustamonte . The decision, imposing a “totality of the circumstances” test to evaluate the voluntariness of consent to a search, remains the binding federal standard and the subject of pervasive criticism. In addition, consent continues to be law enforcement’s most common method to evade the constitutional requirements of both a warrant and probable cause. In its wake, state supreme courts remain free to independently interpret analogous state provisions and to either adhere to, or provide greater search protection than, the “totality of the circumstances” standard. Iowa has not yet resolved which standard article I, section 8 of the Iowa Constitution necessitates. This Note argues that five recent Iowa Supreme Court decisions considering the relationship between the federal and state search provisions demonstrate a perceptible shift away from the federal model. The analytical faults of Schneckloth , coupled with the numerous benefits and increased protections that a heightened standard provides, further dictate that the Iowa Supreme Court should adopt a “knowing” standard. Under this test, a suspect must know of his right to refuse consent to a search. Finally, this Note suggests that written consent forms, which either the legislative or executive branch could implement, provide the most effective method of enforcing this heightened standard of proof.  J.D. Candidate, The University of Iowa College of Law, 2015; B.A., The University of Kansas, 2011. I would like to thank the writers and editors of Volumes 99 and 100 of the Iowa Law Review for their hard work and keen edits. To my family—particularly my parents—and to my friends, thank you for your never-ending support. And to Christopher Sorenson, thank you for your encouragement, advice, and for being the best part of each day. 1328 IOWA LAW REVIEW [Vol. 100:1327 I. INTRODUCTION ........................................................................... 1329 II. THE HISTORY OF VOLUNTARY CONSENT AND THE FOURTH AMENDMENT ............................................................................... 1332 A. L ACK OF A C ONTROLLING S TANDARD C REATES C ONFUSION A MONG C OURTS ................................................................................ 1333 B. SCHNECKLOTH V. BUSTAMONTE : I MPOSITION OF “T OTALITY OF THE C IRCUMSTANCES ” ........................................................... 1334 C. P OST - SCHNECKLOTH : “T OTALITY ” E XTENDED ...................... 1337 III. STATE SUPREME COURTS RESPOND: THREE THREADS EMERGE . 1338 A. A DHERENCE TO SCHNECKLOTH ............................................ 1338 B. S TRIKING A B ALANCE : A M ORE D EMANDING “T OTALITY ” S TANDARD ............................................................................ 1339 C. E SCHEWING “T OTALITY ” FOR “K NOWING ” .............................. 1340 IV. IOWA AND THE NEED FOR “KNOWING”........................................ 1342 A. I OWA S UPREME C OURT R ECONSIDERS B LIND A DHERENCE TO THE F EDERAL M ODEL ................................................................... 1342 1. Reiterating the Ability and Importance of Independent Interpretation of the Iowa Search Provision ............. 1345 2. Providing Greater Search Protection Under Article I, Section 8 Than the Fourth Amendment Affords ..... 1347 B. B ENEFITS OF A “K NOWING ” S TANDARD ................................... 1348 1. Additional Guidance for Law Enforcement, Prosecutors, and Courts ................................................................... 1350 2. Limiting Law Enforcement’s Ability to Benefit from a Citizen’s Ignorance of Rights Possessed .................... 1351 3. Uniformity and Stability in All Search Contexts ....... 1351 C. W RITTEN C ONSENT F ORMS P ROVIDE THE M OST E FFECTIVE M ETHOD OF E NFORCEMENT .................................................................. 1352 V. CONCLUSION .............................................................................. 1354 2015] THE NEED FOR “KNOWING” 1329 I. INTRODUCTION Both the Fourth Amendment and analogous provisions in each state’s constitution possess the same objective: to protect individuals from unreasonable searches. 1 The provisions prohibit a government actor— typically a police officer or other law enforcement member—from conducting a “search” without both probable cause and a warrant. 2 This general rule, however, is not absolute; exceptions exist that may render a “search” lawful even if both of the above requirements are absent. 3 One such exception is utilized more than any other: consent to search. 4 That is, law enforcement may conduct a “search” with neither probable cause nor a warrant if an officer first receives consent or approval from the individual to be searched. 5 To be 1. The Fourth Amendment to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV (emphasis added); see also Stephen E. Henderson, Learning from All Fifty States: How to Apply the Fourth Amendment and Its State Analogs to Protect Third Party Information from Unreasonable Search , 55 CATH. U. L. REV. 373, 374 (2006) (“[E]ach of these [state] constitutions includes . . . a ‘cognate’ or ‘analog’ to the Federal Fourth Amendment.”). The issue of what constitutes a “seizure,” including when a seizure becomes unlawful, is beyond the scope of this Note. 2. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). However, not every governmental intrusion constitutes a “search” within the meaning of the Fourth Amendment. JOSHUA DRESSLER & GEORGE C. THOMAS III, CRIMINAL PROCEDURE: INVESTIGATING CRIME 86 (5th ed. 2013). In the Fourth Amendment realm, “a police officer may act as arbitrarily or unreasonably as she wants, as long as she does not ‘search.’” Id. (emphasis omitted); see also United States v. Jones, 132 S. Ct. 945, 949–53 (2012) (discussing what a court must consider to determine whether a “search” occurred). A “search” instead occurs only when a government actor violates an individual’s “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). While Justice Harlan stated this standard in a non-binding concurrence, the Court has continually applied the test. See Jones , 132 S. Ct. at 950. However, the Court has recently reiterated that “the Katz . . . test has been added to , not substituted for , the common-law trespassory test” that previously controlled. Id. at 952. 3. See Schneckloth , 412 U.S. at 219 (quoting Katz , 389 U.S. at 357 (majority opinion)) (internal quotation marks omitted) (noting the general rule is “subject only to a few specifically established and well-delineated exceptions”). 4. Orit Gan, Third-Party Consent to Search: Analyzing Triangular Relations , 19 DUKE J. GENDER L. & POL’Y 303, 307 (2012). Other exceptions to the warrant requirement include “plain view, stop and frisk[, and] exigent circumstances.” Donald L. Beci, Fidelity to the Warrant Clause: Using Magistrates, Incentives, and Telecommunications Technology to Reinvigorate Fourth Amendment Jurisprudence , 73 DENV. U. L. REV. 293, 308 (1996) (citations omitted) (internal quotation marks omitted). 5. Schneckloth , 412 U.S. at 219. 1330 IOWA LAW REVIEW [Vol. 100:1327 valid, the individual must voluntarily give consent. 6 Debate abounds, however, regarding which standard for evaluating voluntariness should control. More than 40 years ago, the United States Supreme Court resolved the issue as it relates to the Fourth Amendment. In Schneckloth v. Bustamonte , the Court faced an analytical choice: whether to implement a “knowing” or a “totality of the circumstances” standard. 7 Under a “knowing” test, the state must demonstrate that a person knew he had the right to refuse consent in order for consent to be voluntary. 8 A “totality of the circumstances” standard, in contrast, requires consideration of all factors surrounding the consent encounter, 9 including the searched individual’s characteristics and the nature and setting of the request. Importantly, knowledge of a right to refuse consent is only one factor of many. 10 In Schneckloth , a majority of the Court rejected this heightened, “knowing” standard and imposed the “totality of the circumstances” test. 11 This remains the binding federal standard to this day. 12 As the Court only addressed consent searches arising under the Fourth Amendment of the United States Constitution, the issue of which standard controls analogous state constitutional provisions remained unresolved. However, as state supreme courts began to construe such provisions in the wake of Schneckloth , three interpretive approaches emerged. 13 Many states expressly adopted Schneckloth ’s standard. 14 Others imposed “totality,” but in a more demanding manner, including heightened requirements or standards of proof. 15 Still others adopted the “knowing” standard that the Supreme Court rejected. 16 The Iowa Supreme Court, in contrast, has not yet resolved which standard the state search provision—article I, section 8 of the Iowa Constitution 17 —necessitates. Historically, few Iowa cases have explicitly 6. Id. at 222 (citation omitted). The government actor, including law enforcement or a prosecutor, “has the burden of proving that the consent was, in fact, freely and voluntarily given.” Id. (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (reiterating that when the state uses consent to justify a warrantless search, it has the...