excerpted from: Diana R. Donahoe, Not-So-Great Expectations: Implicit Racial Bias in the Supreme Court's Consent to Search Doctrine, 55 American Criminal Law Review 619 (Summer, 2018) (325 Footnotes) (Full Document)
The Supreme Court's creation of the “social expectation” doctrine in third-party consent to search cases, where it equated a police officer demanding entrance to a suspect's home with a house call from a social visitor, is emblematic of the implicit bias that pervades the United States criminal justice system. This perception of friendly officers who patrol and protect bucolic, white neighborhoods harkens back to the 1960s portrayal of police in the fictional, utopian town of Mayberry on the Andy Griffith Show. This view stands in stark contrast to the current realities facing predominately minority neighborhoods where police officers are often seen as intimidating and militarized government intruders.
We often discuss implicit racial bias within the police force but assume neutrality in Supreme Court doctrine. The Court's decisions, however, are written primarily through the lens of white privilege and, like police department policies, carry their own implicit biases. Our focus on police behavior makes sense, as we are exposed to claims of bias on the police force through the social media video barrage of brutality and shootings of unarmed, young, black men. But evidence of implicit racial bias in Supreme Court doctrine is not so readily conveyed. Supreme Court opinions, on their face, often seem racially neutral. They are usually “colorblind,” in that they do not take into account racial differences, and “color mute,” in that they do not discuss race. In fact, by ignoring race, the Court's decisions often perpetuate implicit bias. Instead, the Court needs to explicitly address racial expectations and differences in its written opinions to ensure that the resulting doctrine protects all Americans equally, not just white Americans.
In this Article, I focus on the seemingly impartial doctrine of Fourth Amendment third-party consent. Here, the racial divide is particularly glaring in the Court's creation of the “social expectation” doctrine, where the Justices presume uniform societal expectations. This doctrine, while arguably applicable in most white, privileged communities, does not take into account the expectations of racial minorities in this country.
This Article spotlights the impact of the Court's doctrine on the black community. I argue that the Justices' social expectation doctrine demonstrates a complete lack of understanding of most African Americans' expectations of police encounters. I also demonstrate how the police force is now able and very adept at using the Court's third-party consent doctrine as a tool to discriminate against those who live in underprivileged African American neighborhoods.
The Fourth Amendment is supposed to guarantee all Americans the right to be free from unreasonable searches and seizures, especially in their homes. The protection comes from requiring that detached and neutral magistrates determine when probable cause exists to issue warrants as opposed to allowing police, who are “engaged in the often competitive enterprise of ferreting out crime,” to determine when it would be appropriate to search. However, the Supreme Court has watered down the Fourth Amendment warrant requirement by carving out many exceptions. Consent to search is one exception, and the Court has continued to expand this exception to permit police to more easily search homes without a warrant. Initially, the Court found that only the targeted individual could waive a Fourth Amendment right by providing consent to search. Later, the ability to consent was extended to third parties who had either “actual authority” or “apparent authority” to authorize the search of another's shared property or home.
In 2006, the Supreme Court created the “social expectation” doctrine in Georgia v. Randolph to address situations where police entered a home over the objection of a targeted individual when a third party, who had either actual or apparent authority, consented to the search. In 2014, in Fernandez v. California, the Court interpreted the social expectation doctrine to find that an objecting occupant was required to be at the front door and objecting at exactly the same time as when the third party provided permission; the Court also permitted police to remove an objecting suspect, even as a pretext to garner consent from another occupant, by concluding that police motives were not relevant.
Through these colorblind and color-mute opinions, the Court created and applied the social expectation doctrine. The Court imposed its privileged perception of white expectations in the community by equating a police officer with a social visitor and assuming that all Americans, regardless of their race or background, have similar expectations of police encounters in their communities. As a result, African Americans are now held to a one-size-fits-all standard that does not mesh with most of their expectations and instead permits police to easily garner consent to search their homes without a warrant and without probable cause. To add insult to injury, the doctrine actually promotes police use of implicit bias to discriminate against those living in disadvantaged black neighborhoods.
In this Article, I argue that the social expectation doctrine is a misnomer. It should be called the expectation of white privilege. The doctrine, which was created through the white lens of the Supreme Court bench, permits police to use implicit bias to search homes without a warrant, provides them with the tools to exploit the black community's expectations, increases tensions between police and African American communities, and perpetuates the stigmatization of black men as criminals.
In Part I of this Article, I provide the contextual background for Fourth Amendment consent, starting with our founders' concern with protecting the home and their intent to curb unbridled police discretion. I describe the historical transformation of the third-party consent doctrine from the waiver of a constitutional right by the targeted individual to the permitted consent of third parties based on common or apparent authority. I also provide details of the Court's two social expectation decisions, Georgia v. Randolph and Fernandez v. California.
In Part II, I use studies and polls to present objective evidence of implicit bias to illustrate how, as a result of policies and practices, the black community has been saddled with the stigma of the criminal stereotype. I demonstrate that this stigma has led to a racial divide in expectations of police behavior and perceptions of the criminal justice system. Relying on legal scholars, sociologists, and other experts, I show how implicit bias and police targeting of black communities has led African Americans to fear the police and to teach their children to comply with police requests.
In Part III, I illustrate how the social expectation doctrine is inharmonious with real-life black expectations. I argue that the term “social expectation” is a misnomer, as most African Americans do not equate police officers' encounters as social visits, and I demonstrate how the expectations and teachings in many black communities differ substantially from those in most white neighborhoods. I also explain how the doctrine can been used as a tool by police officers to discriminate against African Americans.
In Part IV, I propose treating consent as a strict waiver that can only be waived by the targeted individual in third-party consent situations. I also suggest requiring a Miranda-type warning for all consent cases where the government must prove that any consent is knowing, intelligent, and truly voluntary. This solution will help diminish police discretion, limit the use of implicit bias in the criminal justice system, and alleviate some of the existing tensions between black communities and police departments so that the Fourth Amendment might protect all homes, not just those of white, privileged Americans.
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While I do not believe my solution is a talismanic cure in our racially biased country, it would help remedy some of the issues that result from the current law on disputed third-party consent. It would acknowledge that there are no “widely shared social expectations” in the United States. It would reinforce our founders' intent to protect the sanctity of the home and the warrant requirement. It would eliminate the nonsensical result of the social expectation doctrine that currently protects a target when he happens to be at the front door but not when he is napping on the couch or watching television in an adjacent room. Most importantly, without consent as a tool to perpetuate implicit racial bias, police would no longer be motivated to target homes in African American communities to search without a warrant and without probable cause.
While black individuals might initially be more inclined to comply with police request to search, they should eventually learn that they have a right to refuse. When “no” actually means “no,” suspects might eventually believe that they can object without harsh consequences from the police. Just as the Miranda warnings are now prevalent in television shows, perhaps the consent warnings would eventually attain similar universality. Black community leaders and parents might begin to teach their children to refuse a request to search the home instead of complying with all requests, and black communities might start to feel as if their voices are actually respected at times instead of ignored. By educating African Americans in these underprivileged neighborhoods and listening to their objections, we might be able to reduce some of the tensions between police departments and black communities and start to change black expectations.
Under my proposal, the courts would provide oversight to prevent unbridled police discretion by enforcing the Fourth Amendment warrant requirement and requiring the government to prove that any consent be knowing, intelligent, and voluntary. By including race and community expectations into the voluntariness test, courts would explicitly address differences in racial expectations and community and police tensions. Due to the ability of courts to rely on objective evidence of implicit police bias in particular cities through reports, such as the Ferguson Report, police departments might be motivated to improve their community relations so that evidence of police bias could not be easily used in court to show a coercive environment.
My proposal attempts to recognize the various expectations in our diverse communities through community education, limited police discretion, and court oversight. It recognizes that many Americans do not view police officers as “social visitors” nor do they believe that a decision regarding police entry into the home is as inconsequential as choosing curtain color. The Supreme Court needs to similarly account for different racial expectations, especially in its Fourth Amendment opinions.
The social expectation doctrine is just one example of white privilege pervading the Court's opinions. The Court has also been colorblind and color mute in other search and seizure decisions. For example, Terry v. Ohio, a 1968 seminal Fourth Amendment case that permitted officers to stop suspects on the street even when the officers had no probable cause, was based on a white officer who thought that two black men standing on a street corner in downtown Cleveland just “didn't look right” to him, especially when they stopped to talk to a white man. The Court did not discuss the role of race in its decision except in a footnote that warned of “adverse racial tensions.” In the 1996 case of Whren v. United States, narcotics officers, admittedly searching for drugs, stopped a Nissan Pathfinder driven by a black man and used a traffic violation as the reason. The Court's holding permitted police to make this and other pretextual vehicular stops as long as the officers“could have” made the stop regardless of the actual reason. In upholding the search, the opinion did not mention the race of the suspect in the discussion of the facts; instead it mentioned race when rejecting an argument that the Fourth Amendment can help regulate race-based policing.
While the Court could adeptly ignore black perspectives in its decisions in the 1960s when the Andy Griffith Show was part of popular culture and in the 1990s when race-neutral language was considered to be appropriate in legal discourse, it can no longer remain color blind and color mute in its written opinions concerning current Fourth Amendment doctrine. By exposing the doctrine of white privilege in the third-party consent context, I hope to motivate the Court to rethink its myopic perspective regarding the social expectation doctrine and also in other search and seizure cases. The Court should no longer use its lens of white privilege to dictate expectations for all Americans. The Court should, instead, adequately and explicitly account for and protect the constitutional rights of African Americans and other minorities, not just the rights of white Americans.
Professor Donahoe has been teaching at Georgetown University Law Center since 1993 and was a recipient of the Flegal Teaching Award in 2008.
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