Criminal Procedure Without Consent

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 trans-substantive 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.

Table of Contents Show

Introduction

On the first day of my Criminal Procedure course, students review a police report. The report is not particularly unique—and that’s the point. In the report, several police officers approach a group of young Black men standing on a street corner in Washington, D.C. The police ask them to display their waistbands, which they do.[1] The police then ask if they consent to a pat down, and they say yes. My students discuss whether the searches were consensual, and, without fail, most of the class expresses doubt that either search was truly consensual.

The students are not alone in their skepticism. Scholars and advocates have long raised concerns that traditional police consent searches—that is, Fourth Amendment searches that would be unconstitutional but for the subject’s consent—are inherently coercive and uninformed and that the doctrine generally ignores the ways that extracting consent is shaped by race, class, gender, citizenship status, and disability.[2] As the advocacy organization DC Justice Lab explained, for some community members, especially people of color who have been victims of police brutality, “consenting is a survival tactic, not a choice.”[3] To signal their skepticism, advocates and academics alike often place scare quotes around the word “consent.”[4] In the past few years, these critiques have led some jurisdictions to limit or abolish traditional consent searches and the American Law Institute (ALI)—which sets standards for best practices in the law—to recommend new limits on consent searches.[5]

Yet concerns about coercion and inequity are not limited to traditional Fourth Amendment consent searches. Consent, waiver, and notions of voluntary choice are deeply embedded throughout criminal procedure doctrines. Every day, people waive fundamental rights or consent to otherwise unconstitutional state action. People decide for themselves—at least in theory—if they speak with or walk away from the police; how much private information they share with third parties; if they agree to 24/7 location tracking via a GPS ankle monitor instead of remaining in custody; and if they waive their right to a lawyer, indictment, speedy trial, or trial by jury.[6] Plea bargaining involves not just waiving trial rights but often agreeing to a host of other conditions, such as agreeing to not seek early release from prison, early termination from probation, or record expungement.[7] In New York, for example, victims of domestic violence who face criminal charges are sometimes offered plea deals with the condition that they never seek relief under the Domestic Violence Survivors Justice Act, an act intended to help that exact population avoid excessive prison sentences.[8] Especially for the four million people on criminal court supervision across the state, it is likewise common to consent to limited (or no) Fourth Amendment rights, to pay court fees, to not travel to certain places, to not spend time with certain people (including family), and to have their otherwise private health information shared between agencies.[9] In many respects, all these choices seem just as coerced as the choices of the men in the D.C. police report. Yet in these contexts, the law remains unchanged or reformed. Why? This Article considers what might happen if consent and waiver were reformed or eliminated in criminal procedure contexts beyond traditional consent searches.

In particular, this Article analyzes two main questions: (1) whether there are features unique to consent searches that render them especially amenable to limits or bans as compared to other criminal procedure doctrines, and (2) what would happen if consent and waiver were more broadly eliminated in criminal investigations and trials. In analyzing each, this Article draws upon both an original survey of recent consent-search reforms and a trans-substantive review of the use of consent and waiver throughout criminal procedure doctrines.

With respect to the first question, coercion, bias, and equity concerns are not limited to traditional consent searches nor the Fourth Amendment. The rationales that gave rise to the reforms of traditional consent searches apply with equal force to the many different purported “choices” that permeate criminal procedure doctrines. Like the choice to consent to a police search, scholars also critique the choice to speak with police or to agree to certain restrictive probation conditions, for example, as fictitious, uninformed, coerced, and inherently shaped by race, gender, and other intersecting identities and characteristics.[10] Despite these critiques, the law governing consent and waiver remains notably acontextual and unidimensional.[11]

To be sure, the various forms of consent and waiver do not operate in identical ways, as they implicate different constitutional amendments, offer different benefits, and receive different treatment by courts. Choosing to accept a plea offer, for example, offers a legal benefit (such as a lower sentence) and involves waiving known rights. In contrast, agreeing to a consent search offers no legal benefit (though quickly consenting may offer the illegal benefit of avoiding police harassment or violence), and police do not always tell people that they have a legal right to refuse consent. Despite the differences, however, the critiques of these purported choices are strikingly similar across different doctrines, suggesting that traditional consent searches are not terribly unique in their coercive qualities. Meanwhile, the only area of criminal procedure where the Supreme Court has recognized the lack of a real choice is with respect to people sharing certain sensitive data (such as cell site location data or drug test results) with third parties.[12] This Article addresses why the Court recognizes the lack of choice in those settings but not in the context of consent elsewhere in criminal procedure.

With respect to the second question, removing (or limiting) consent from criminal procedure more broadly would destabilize the entire criminal justice system. As this Article reveals, consent masks and fills significant gaps in the law, allowing the criminal legal system to function. Without consent, for example, plea bargaining could not exist, and almost all police encounters with citizens would be considered seizures. Given the centrality of consent in many key criminal procedure doctrines, the entire criminal legal system would unravel if consent were eliminated.[13] Yet if the various forms of consent and waiver raise the same coercion concerns as those associated with traditional consent searches, simply allowing the fiction of consent to continue is an unsatisfying and disingenuous end point.

Ultimately, this Article urges a reckoning with the legal system’s reliance on consent to justify otherwise unconstitutional state action. While much has been written on traditional consent searches, waivers, unconstitutional conditions, and plea bargains, prior work has largely overlooked the question of broad consent abolition beyond the context of traditional consent searches.[14] Yet such an exploration reveals the staggering extent to which consent does the “dirty work” of the criminal legal system, including to help maintain the subordination of marginalized groups. By surfacing the common problems with consent and waiver across criminal procedure doctrines, this Article contemplates both broad abolition of consent and more moderate interventions aimed at limiting reliance on consent and waiver, short of abolition.[15]

This Article proceeds in three Parts. Part I presents the findings of my original nationwide survey of jurisdictions that limited or abolished traditional consent searches, including the rationales and ramifications of such reforms. Part II provides a trans-substantive analysis of consent and wavier across criminal procedure doctrines and reveals the extent to which the critiques that gave rise to traditional consent-search reform apply beyond the Fourth Amendment context. In light of the similarity of the critiques, Part III considers the consequences of eliminating (or limiting) consent and waiver more broadly. This Part ends by addressing anticipated objections, including that eliminating consent will make no difference and could undermine both free will and public safety. Ultimately, this Article suggests that various forms of consent and waiver are too readily relied on in criminal procedure doctrines and should be reined in or even eliminated.

I. Recent Efforts to Limit (or Eliminate) Traditional Police Consent Searches

A.      Traditional Consent Searches

Under settled Supreme Court case law, police officers are permitted to conduct warrantless, suspicionless searches of people, property, and houses based on a person’s consent.[16] Police are not required to inform people that they have the right to refuse the request for consent,[17] and consent is evaluated from the perspective of the officer.[18] The key question in consent search cases is whether the consent was voluntary.[19]

Scholars have roundly critiqued the legal standard for determining the voluntariness of consent searches as amorphous, allowing courts to find consent voluntary in all but extreme cases.[20] The standard has also changed over time. In Schneckloth v. Bustamonte, the seminal consent search case, the Supreme Court explained that voluntariness is determined by “careful scrutiny of all the surrounding circumstances,” including “the state of the accused’s mind.”[21] This includes individualized factors such as the accused person’s intelligence and level of schooling.[22] Since then, the Supreme Court has embraced a more objective standard for evaluating consent that focuses on how a reasonable person would feel, deemphasizing the subjective approach.[23] In individual cases, some courts have found a person’s choice to be involuntary, but these decisions are limited to the facts of those cases and do not create categorical bans on consent searches.[24]

Over the past several years, however, the confluence of several forces has led a growing number of jurisdictions to categorically curtail or eliminate traditional consent searches. I discuss this trend below, relying on original research to explore these reforms across the United States.

B.      The Reforms

To understand the nature and scope of consent-search reforms in the United States, I looked at court cases, legislation, agency records, and consent decrees in all fifty states.[25] I cast a wide net and looked at any judicial, legislative, or agency-level reforms that limited consent searches in any way. Undoubtedly, my research missed some places where there has been reform. It was also not always clear if the changes were fully implemented. For that reason, this survey does not purport to be a perfect reflection of all instances of reform.

All told, I identified thirty-nine jurisdictions that have either limited or eliminated traditional consent searches.[26] Of those thirty-nine, the reform occurred at the state level in seventeen places (including Washington, D.C.) and at the local level in the remaining twenty-two.[27] These reforms took four primary forms: (1) state supreme court or appellate court decisions, (2) consent decrees or settlements (usually entered into after an investigation by the U.S. Department of Justice), (3) state or local legislation, or (4) agency-level reform.[28] What follows are descriptions of the three types of reforms that emerged: informed consent, bans on consent searches, and a higher standard of proof for establishing consent.

1.       Informed and (or) Recorded Consent

In twenty-nine jurisdictions, police are now required to tell people that they can refuse consent and (or) to obtain written or recorded consent.[29] The jurisdictions that adopted informed consent use language that mirrors Miranda warnings. For example, in Washington, D.C., police must “[e]xplain, using plain and simple language delivered in a calm demeanor, that the subject of the search is being asked to voluntarily, knowingly, and intelligently consent to a search.”[30] Police must also inform people that they have the legal right to decline the search.[31] ALI’s Policing Principles likewise require police to inform people that they have the right to refuse consent and to document the person’s “acknowledgement that consent was sought and provided.”[32]

The reforms vary by context and scope. For example, in some places police are only required to inform people of their right to refuse consent in car stops or in home searches.[33] In Maui and Honolulu, Hawai‘i, agency policy merely recommends (but does not require) written consent.[34] Finally, several jurisdictions pair the requirement that consent be informed with a requirement that the consent be recorded or written.[35]

The source of the reform also varies. Of the twenty-nine jurisdictions that require either informed or recorded consent, about half have rules that come from written agency policies (like police manuals or orders), seven are contained in settlement agreements or consent decrees, and six are the result of state or local legislative efforts.[36]

2.       Bans on Consent Searches

Fourteen jurisdictions have imposed partial or complete bans on consent searches. In these places, police cannot ask for consent or can only ask for it under certain conditions. These bans take a few forms. In several places, police are prohibited from searching based on consent alone; they must also have either an individualized reason or “reasonable suspicion.”[37] The ALI principles similarly prohibit police from seeking consent absent reasonable suspicion “to believe that the search will turn up evidence of a crime or violation.”[38] In Minneapolis, Minnesota, the ban is broader: Police cannot conduct searches based on consent during “a pedestrian or vehicle stop,”[39] and there is no carve-out for searches where there is reasonable suspicion. In Connecticut, police cannot rely on consent to search a car that was stopped for a motor vehicle violation unless the consent is unsolicited and either written or recorded.[40]

There are also situation-specific bans on consent. For example, in Minneapolis, a young person “cannot waive their rights and consent to a DNA collection from their person without first being allowed to engage in a meaningful consultation with an attorney or an informed parent or guardian.”[41] In Berkeley and Oakland, California, police are limited in conducting probation and parole searches unless they have some additional reason to conduct the search.[42] Notably, some bans are limited to consent searches during traffic stops, while others are limited to pedestrian stops, and other bans apply in both settings or more broadly encompass people, homes, and property.[43]

3.       Higher Standard of Proof

In three states—South Dakota, Kansas, and Texas—consent searches were not limited or reformed, but state courts made the burden of proof higher.[44] In these places, prosecutors must demonstrate the voluntariness of consent by clear and convincing evidence or other higher standards of proof.[45] In South Dakota, there must be evidence that demonstrates that the “search was the result of free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied.”[46]

C.      The Rationale for Reform

These reforms to traditional consent searches occurred against a backdrop of growing concerns about racialized and biased policing, pretextual traffic stops, police harassment, coercion, and uninformed consent. Many of the reforms contained in Department of Justice consent decrees, for example, were in direct response to findings that police profiled and disproportionally stopped and subjected Black people to consent searches in cities like Ferguson, Missouri; Minneapolis, Minnesota; Cleveland, Ohio; and Baltimore, Maryland.[47]

Many of the legislative reforms focus not only on consent but on the particular way that police deploy consent in connection to traffic stops and racial profiling.[48] It is now well known that Black and Latinx drivers are stopped at much higher rates than White drivers.[49] Once stopped, some traffic studies have found that people agree to officer vehicle search requests around 85 to 90 percent of the time.[50] In one study, 90 to 95 percent of people who consented to a car search did not know they could refuse, and those who did know were concerned that the officer would not take no for an answer.[51]

Concerns about coercion also motivated reform efforts. The drafters of the ALI Policing Principles, for example, reasoned that “[m]any of the circumstances in which officers seek consent . . . are inherently coercive” and that it is “difficult to conclude with confidence that anyone who is asked by a police officer for permission to search ‘consents’ in the ordinary meaning of the term,” as the person may “perceive the encounter as involuntary and illegitimate.”[52]

These concerns, as well as concerns about racial profiling, likewise appear in a statement that the City of Portland, Oregon, released when it sought to reform consent searches: “The decision to change [Portland Police] consent search protocol comes from the dynamic seen in many police encounters in which people think they can’t assert their constitutional rights. This policy change offers a solution to this issue that disproportionately impacts people of color, particularly Black people.”[53]

Concerns about coercion and privacy are also reflected in judicial opinions that categorically limit consent searches.[54] As the Alaska Court of Appeals observed, “[M]otorists who have been stopped for traffic infractions do not act from a position of psychological independence when they decide how to respond to a police officer’s request for a search.”[55] The court elaborated that “[b]ecause of the psychological pressures inherent in the stop, and often because of the motorist’s ignorance of their rights, large numbers of motorists—guilty and innocent alike—accede to these requests.”[56] These decisions reflect the concern that consent searches allow police to harass drivers, inviting “intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.”[57]

It is worth observing that extensive records reflecting the rationale for these reforms were hard to come by. Unlike with other legislation or policy reforms, there appears to be no detailed or documented history of how these changes came about. One explanation may be political and temporal: Many of these reforms occurred between 2010 and 2020, when activists and organizers increasingly took to the streets demanding drastic changes to policing practices.[58] As these demands became mainstream, elected officials responded with reforms such as limiting consent searches. There may have also been a symbiotic relationship between the increased attention to police practices and decisions by both the courts and the Department of Justice that better accounted for the dynamics of police-citizen interactions. To some extent, these reforms were a product of their time, but they nonetheless shed light on what was, and is, possible in terms of reform.

D.     The Ramifications

Because many of these policy changes occurred recently, empirical evidence of their impact is limited. But there are some exceptions. In Fayetteville and Durham, North Carolina, where police started using written consent forms during traffic stops, the number of consent searches declined by over 75 percent, and searches based on probable cause increased.[59] Researchers found that “Fayetteville officers are able to find similar levels of contraband even when conducting fewer overall searches, possibly because officers are able to spend more of their time developing probable cause and making higher-quality searches.”[60] Other research confirms that searches based on probable cause lead to greater recovery of contraband relative to consent searches.[61] These reforms do not, however, end (or even minimize) racial disparities in consent searches. In North Carolina and California, for example, Black people are still stopped and asked for consent at disproportionally higher rates than White people.[62]

Data from New York City, where police are required to tell people they can refuse consent, suggests results that differ from those in North Carolina: Despite being told that they had the right to refuse a consent search, almost everyone complied. In 2023, for example, the New York Police Department asked a total of 8,030 people to consent to a search.[63] Of those, 92 percent of White people and 92 percent of Black people agreed to be searched. But like in North Carolina, racial disparities persisted. In 2023, 55 percent of consent searches were directed at Black people (despite comprising only 23 percent of New York City’s population) and only about 4.1 percent were directed at White people (despite comprising 39 percent of the population).[64] The statistics from New York City better align with what academics have said: There is little evidence that Miranda-like warnings are effective at limiting the number of consent searches.[65]

Less is known about what happens when consent searches are banned, though existing data suggests that overall searches decrease. In Rhode Island, where police cannot conduct consent searches of cars unless they have reasonable suspicion, researchers found a reduction of searches conducted by police and a slight reduction in racial disparities.[66] In New Jersey, where the Supreme Court banned the use of consent searches in car stops (unless police have reasonable suspicion), consent searches plummeted.[67] Rough calculations of limited data show similar trends in New Orleans, Louisiana.[68]

In sum, these results suggest that bans on consent searches, as compared to requirements that police inform people of their right to refuse, are more effective at limiting police-citizen interactions and lead to fewer but more fruitful searches.

II. Applying Consent Critiques to Other Criminal Procedure Doctrines

The reforms presented in the prior Part raise an important question: Is there something uniquely coercive or inequitable about consent searches that makes them especially amenable to reform, or should we consider eliminating consent in other criminal procedure doctrines as well? As this Part demonstrates, the concerns that gave rise to consent-search reforms apply with equal force to the other forms of consent that permeate criminal procedure.

A.      Trans-Substantive Analysis of Consent and Waiver

As the Supreme Court observed in the context of consent searches, “in a society based on law, the concept of agreement and consent should be given a weight and dignity of its own.”[69] The “concept of agreement,” however, is not limited to traditional consent searches. Rather, it is deeply embedded throughout criminal procedure jurisprudence. Many foundational criminal procedure doctrines rest upon the notion that people can—and do—choose to forgo constitutional rights. This reliance is hardly surprising. The law assumes that people are the best judges of their own interests and can manifest their intentions by saying “no.” Taking away decision-making power therefore undermines autonomy.[70]

Because consent and waiver come up in very different contexts, and involve different constitutional amendments, they are often analyzed in silos. Yet a trans-substantive accounting of the various forms of consent and waiver reveals key similarities and differences.[71] This analysis thus sheds light on the question of whether there is something unique about traditional consent-search doctrine that makes it especially ripe for reform or, alternatively, whether all forms of consent and waiver should be reformed. As detailed below, criminal procedure doctrines relying on consent or waiver generally fall into one of two categories: (1) situations where a person has bargaining power or must be informed of their rights and (2) situations where people have little-to-no bargaining power and need not be informed of their rights. Though, as this Article reveals, the line between these two categories is often blurry and the critiques are similar despite the categories’ differences.

1.       Doctrines with Recognized Bargaining Power or Informed Consent

a.       Custodial Interrogations

Unlike traditional consent searches, the choice to make a custodial statement is informed—at least in theory. As all law students and most Americans know, police must inform anyone subject to custodial interrogation of their right to counsel and right to remain silent.[72] The underlying logic of the Miranda decision reflects the Court’s concerns about involuntary and coerced confessions. Warnings are necessary, the Court reasoned, even if they hamper police investigations.[73] Given the interests at stake, the Court insisted that people be informed of their rights to silence and counsel before being asked to give them up.[74] While scholars question the extent to which warnings actually empower people to invoke their rights or guard against involuntary confessions, the Miranda Court certainly intended as much.[75]

b.       Plea Bargaining

The choice to consent to a traditional police search is also distinct from the choice to accept a plea, where a defendant is both informed of their trial rights and receives a legal benefit. In theory, plea agreements provide a benefit to the accused person (a better outcome than had they gone to trial) and a benefit to the system (greater efficiency through fewer trials).[76] Giving up not just trial rights but also other basic constitutional rights is generally viewed, in the words of the Supreme Court, as the natural “‘give-and-take’ of plea bargaining.”[77] For example, it is not uncommon for standard plea agreements to contain a “search waiver,” meaning the defendant agrees, as part of the plea, that they can be searched at any time.[78] It is also common that as part of a plea, people waive their right to seek early release from prison, a reduced sentence, early termination from probation, record sealing, or other forms of relief, among other examples.[79] Courts generally uphold these plea-offer terms because the accused person is “free to accept or reject the prosecution’s offer.”[80]

Moreover, unlike traditional consent searches, the choice to forgo trial rights and other basic rights is informed—again, at least in theory. A guilty plea must be “knowing,” meaning the defendant entered into it “with sufficient awareness of the relevant circumstances and likely consequences,” and “voluntary,” meaning that the plea is the “expression of [the defendant’s] own choice.”[81] Before pleading guilty, people generally speak to a lawyer and, through a plea-colloquy, are told their rights and asked to waive them on the record and in open court. Perhaps because of these procedural protections, the standard for involuntariness is high. A plea is only involuntary if there is “actual or threatened physical harm or . . . mental coercion overbearing the will of the defendant.”[82]

c.       The Right to Self-Representation and the Right to a Jury Trial

Choosing to waive other trial rights is also distinct from choosing to consent to a police search. For example, although the right to self-representation is an independent right, invoking it requires waiving the right to counsel.[83] The choice, however, must be knowing and voluntary.[84] According to clear Supreme Court precedent, this means that before an accused person invokes their right to self-representation, they “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’”[85] The right to trial by jury can also be waived (in favor of a bench trial) and that waiver must also be “knowing.”[86] No such knowing waiver exists in the context of traditional consent searches.

d.       Diversion and Pretrial Release Conditions

The choice to agree to pretrial diversion programs or certain conditions of pretrial release are also arguably distinguishable from the choice to consent to a traditional search. In the pretrial context, people accused of crimes are sometimes given choices that carry purported benefits. For example, pretrial release is often conditioned on people agreeing to restrictions such as suspicionless searches, house arrest, or 24/7 GPS ankle monitoring.[87] Agreements to diversion programs offer similar purported benefits. In Orange County, California, for example, people charged with certain low-level criminal offenses can have their charges dismissed if they provide a DNA sample for inclusion in a DNA database run by the District Attorney’s office.[88] Critiques notwithstanding, the purported logic is straightforward: An accused person’s choice to forgo certain rights confers a significant benefit.

In other ways, however, these pretrial choices share some similarities with traditional consent searches. While people may be represented by counsel when they agree to release conditions or diversion programs, unlike when they agree to consent searches by police, relatively few attorneys litigate these conditions. And, as with consent searches, there is no requirement that people be advised of their right to say no.[89]

e.       Alternatives to Incarceration

At first blush, the choice to accept various conditions of probation or parole as an alternative to incarceration also appears distinct from the choice to agree to a consent search, where there is no similar benefit. Agreeing to a host of rights-depriving conditions is a standard part of court supervision. It is common for people to consent to warrantless searches of their person, home, or car.[90] Consenting to the sharing of otherwise private medical and mental health information is also common, as is agreeing to various types of surveillance, such as warrantless cellphone searches or GPS-equipped ankle monitors that track the person’s location 24/7.[91] In Pima County, Arizona, for example, people must agree to have their social media accounts monitored and to provide their passwords to their probation officers.[92]

The rules associated with alternatives to incarceration also often require participants to forgo basic rights. For example, people ordered to wear ankle monitors in San Francisco must sign a form that lists twenty-three rules. Figure (a) is an excerpt of the San Francisco GPS agreement:

 
Figure (a): An Excerpt of the San Francisco GPS Agreement.

Rules 11–19 and the signature block of the San Francisco GPS agreement.

The requirement that people agree to certain conditions and waive a host of basic rights is not unique to San Francisco.[93]

Courts often uphold the rights-depriving nature of these conditions on the grounds that the defendant chose the restrictions in exchange for a direct benefit: avoiding prison.[94] As one court explained, “If the defendant finds the conditions of probation more onerous than the sentence he would otherwise face, he may refuse probation.”[95] A number of lower courts, however, have rejected the notion that rights restrictions are the “price the government may exact in return for granting probation.”[96] But these courts are the exception, not the norm.

To be sure, the Supreme Court has yet to directly address the question of consent as a justification for depriving people of rights in the post-conviction setting. The Court has alluded to the issue only with respect to the limited Fourth Amendment rights of people on probation and parole. In a pair of cases, United States v. Knights and Samson v. California, the Court upheld warrantless searches of people on probation and parole because the searches were deemed “reasonable” under a “general Fourth Amendment approach of ‘examining the totality of the circumstances.’”[97] Perhaps out of concern that consent was an unsound legal basis—a concern several Justices voiced at oral argument in Knights[98]—both decisions explicitly rejected consent as the legal basis for the searches.[99] Yet both opinions also suggested that probation and parole conditions make people “aware” that they can be subjected to warrantless searches and noted that both defendants were “unambiguously informed” of these rules and “signed an order” agreeing to them.[100] Although being aware of a condition is not the same as consent, the Court seemed to suggest that both defendants could have rejected court supervision had they wanted to avoid warrantless searches.

2.       Doctrines with No Recognized Bargaining Power or Informed Consent

a.       Free-to-Leave Test

The choice involved in traditional police consent searches is perhaps most like the choice involved in the free-to-leave test for Fourth Amendment seizures. Under clear Supreme Court case law, a person is seized for Fourth Amendment purposes when a “reasonable person would have believed that he was not free to leave.”[101] In other words, if a person chooses to engage with the police (instead of walking away), the exchange is not a seizure and not governed by the Fourth Amendment.[102]

Like traditional consent searches, police are not obligated to tell people they are free to leave, nor is there a benefit in cooperating, at least no benefit that courts have recognized. Generally speaking, Fourth Amendment seizure doctrine does not account for coercion and assumes choices are freely made.[103] In United States v. Mendenhall, for example, the Court rejected the idea of “characterizing every street encounter between a citizen and the police as a ‘seizure’”[104] and instead concluded that Ms. Mendenhall was not seized because her encounter with police occurred in public (an airport terminal) and the agents were not in uniform or visibly armed. Moreover, the police “did not summon [Ms. Mendenhall] to their presence, but instead approached her . . . . They requested, but did not demand, to see [her] identification and ticket.”[105] The Court was essentially saying that Ms. Mendenhall could have walked away but elected not to. It rejected the notion that Ms. Mendenhall’s gender (female) and race (Black) were dispositive when it came to her encounter with White male law enforcement officers. The Court noted that “while these factors were not irrelevant . . . , neither were they decisive.”[106]

The Court’s reasoning in the bus sweep cases is likewise similar to the reasoning in its consent search cases. In Florida v. Bostick and United States v. Drayton, the defendants were passengers on a bus when police approached them.[107] In both cases, the Court found that there was no seizure because the defendants could have left the bus or terminated the encounter.[108] Writing for the majority in Drayton, Justice O’Connor explained that the “officers gave the passengers no reason to believe they were required to answer the officers’ questions” and did not “brandish a weapon or make any intimidating movements. . . . [They] spoke to passengers one by one and in a polite, quite voice.”[109] Notably, neither opinion, nor the parties’ briefs, addressed how Mr. Bostick and Mr. Drayton’s race (both were Black men) may have made the encounter with police inherently coercive.[110]

A common thread running through the free-to-leave cases is the Court’s belief that consent is valuable because it “reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding.”[111] Yet in neither the seizure nor the consent-search context are police obligated to tell people their rights, nor is there a recognized legal benefit for cooperating, a point addressed in greater depth infra.

b.       The Third-Party Doctrine

The choice to reveal otherwise private information with third parties—which, under the third-party doctrine, strips the information of Fourth Amendment protection—is a species of consent search. In some respects, the similarities are obvious. People consent to police searching their phones, for example, just as people choose to share sensitive data with third parties, including cellphone providers. In both contexts, the benefits are either negligible or nebulous, and people are rarely fully informed of the rights they give up.

But as the cell phone example shows, the law treats the question of choice very differently depending on the context. In the context of consensual cell phone searches, courts generally uphold the search so long as the consent is voluntary.[112] Police need not tell people that they have the right to refuse to turn over their phone, nor is it clear that people obtain any benefit from turning over their phone. Nonetheless, most people comply when asked to consent to a search of their phone.[113]

In the context of the third-party doctrine, in contrast, the Supreme Court has rejected the idea that people voluntarily expose their cell phone location data to third parties, given that having a cell phone in modern society is no longer a choice.[114] Writing for the majority in Carpenter v. United States, Chief Justice Roberts explained that “[c]ell phone location information is not truly ‘shared’ as the term is normally understood” because cell phones are “‘such a pervasive and insistent part of daily life’ . . . [and] indispensable to participation in modern society.”[115] Cellphone use is so automatic and necessary that “there is no way to avoid leaving behind a trail of location data.”[116] Mr. Carpenter, the Court concluded, should not have less Fourth Amendment privacy simply because he decided to own a cellphone.

To be sure, the full ramifications of Carpenter are still not known. The Court noted that its holding was narrow and did not otherwise disturb the third-party doctrine. Yet Carpenter was not the first time the Court rejected the notion that people choose to disclose certain information to third parties. In Ferguson v. City of Charleston, the Court rejected the government’s argument that the plaintiffs—pregnant women at a local hospital—had consented to sharing drug test results with police. As the Court in that case explained, the choice between being searched or foregoing necessary medical treatment “is the antithesis of free choice.”[117]

The reasoning undergirding Ferguson and Carpenter—that there is no meaningful choice in disclosing certain private data to third parties—has not been extended to traditional consent searches, even though it clearly could be. As discussed in greater depth infra, the choice to comply with the police is arguably just as much not a choice as using a cellphone. Indeed, both Ferguson and Carpenter arguably signal an opportunity for courts to reconsider when someone has a choice and when they do not—at least in some situations.

3.       Comparing the Differences

In many respects, consent and waiver operate differently depending on the particular doctrine. This is especially apparent when comparing purported benefits. Plea agreements and consenting to restrictive conditions of release involve forfeiting rights in exchange for obtaining a legal benefit, like a reduced sentence or avoiding incarceration. In contrast, agreeing to a consent search, or to speak with the police and not walk away, involves forfeiting a right—to be free from police searches or seizure—for a benefit that is either illegal (like avoiding police harassment or violence) or nebulous (like cooperating with the police).

Yet, in other respects, the differences may not be as great as they appear. There is almost always a benefit, legal or not, to complying with police, prosecutors, and judges. It is not only traditional consent searches that sometimes involve illegal or nebulous benefits. Pleading guilty, providing a DNA sample, or agreeing to restrictions associated with court supervision only brings about a benefit if the other option would have been something much worse, which is not always the case.[118] Likewise, there is no clear benefit in agreeing to provide a custodial statement, even if the decision is informed. In sum, a shared critique across all these doctrines is that informed consent and purported benefits do not sufficiently change the dynamics of state-citizen interactions to justify only reforming traditional consent searches and not the other forms of consent that permeate criminal procedure.

B.      Common Critiques of Consent Across Criminal Procedure

Despite the different forms that consent and waiver take—including informed versus uninformed or offering a legal benefit versus offering no clear benefit—the critiques are resoundingly similar across criminal procedure doctrines. I discuss several of these critiques below.

1.       Consent Facilitates Racialized Policing and Prosecution

A shared critique of the various forms of consent, waiver, and voluntariness throughout criminal procedure is that they directly facilitate and sanction racialized policing and prosecution. In particular, the pressure to comply is inherently shaped by race.[119] Scholars have long argued that search and seizure doctrines generally fail to account for the ways that race influences all police-citizen interactions.[120] With respect to consent searches and the free-to-leave test, Professor Devon Carbado observes that the Court “doctrinally masks (and not simply ignores) the ways in which race shapes” these cases.[121] Courts mask the extent to which Black people are “likely to feel ‘more’ seized [compared to White people] in any given moment, and less likely to know or feel empowered to exercise their rights.”[122] Dissenting judges and Justices have raised similar critiques. As Judge Julia Cooper Mack, the first Black woman to serve on the District of Columbia Court of Appeals, explained in a powerful dissent: “[N]o reasonable innocent [B]lack male (with any knowledge of American history) would feel free to ignore or walk away from [the police].”[123]

The ways in which race impacts the pressure to comply with state directives or requests extend well beyond the Fourth Amendment. For example, race played just as much a role in the false confessions of the five Black teenagers wrongfully convicted in the 1989 Central Park jogger case as it did in the seizure cases, such as Mendenhall, Bostick, and Drayton.[124] Even though the five young men were Mirandized, they still agreed to speak. Indeed, ample research shows that their experience is hardly unique.[125] Likewise, the decisions involved in plea bargaining or agreeing to certain conditions of release (like ankle monitoring) are just as race dependent as the decision to agree to a consent search.[126]

In short, this race-masking critique is not limited to traditional consent searches and cuts across all the doctrines discussed in the prior section, including situations where people are informed of their rights or receive a purported benefit.

2.       Consent Is Not Voluntary

The various forms of consent and waiver discussed in the prior Part are similarly critiqued for not being truly voluntary. Indeed, scholars have exposed the myriad ways that power imbalances between police and citizens; fear of police violence; and race, gender, disability, citizenship status, and socioeconomic capital all influence people’s decisions to comply with law enforcement.[127] The pressure to comply may be so great that to call any of these decisions an actual choice (as opposed to a survival tactic) is incorrect.[128] As Professor Bennett Capers observes, many Supreme Court criminal procedure cases implicitly suggest that a “good citizen” does not “run from the police,” does not keep silent in the face of police questioning, and “should feel comforted by the presence of officers.”[129] However, as Capers points out, there is “something deeply problematic, even ironic, that in the very cases defining constitutional protections, the Court’s citizenship talk encourages the surrendering of such protections.”[130]

Informing people of their rights or offering a purported benefit may not alter the dynamics that lead to involuntary decisions.[131] For example, Miranda scholars have opinioned that the warnings, without more, do little to ensure that people’s waivers are in fact voluntary.[132] Similar critiques apply to consent and waiver in the context of plea bargaining, pretrial diversion, and alternatives to incarceration, all situations where people are supposed to be informed of their rights. But as Justice Stevens put it in his Samson dissent, the notion that someone on parole would not consent is “sophistry” and that to speak of consent when the choice is freedom or prison is to “resort to a ‘manifest fiction.’”[133] The premise is simple: People will agree to almost anything to avoid what they understandably believe to be a worse outcome or fate.[134] As probation and parole expert Vincent Schiraldi asks, “[W]ith the gun of incarceration . . . held to their heads, how volitional is [probationers’] entrance into the ‘contract’ of supervision?”[135]

Despite these critiques, most courts tend to discount or ignore evidence that people’s decisions may not be voluntary. For instance, in the Miranda context, a court found that the statement “I plead the Fifth Commandment” was not an invocation, even though the defendant’s desire to not speak is plainly apparent to any lay person.[136] The courts’ failure to account for evidence of involuntariness is not limited to Miranda. In a preregistered laboratory study, Professors Roseanna Sommers and Vanessa Bohns asked 103 participants if they would unlock their password-protected cellphones and hand them over to a study administrator, and 100 complied.[137] A separate 194 participants were asked if, in the abstract, they would agree to the same request, and the majority said no. These findings suggest that judges, like the 194 participants, may consistently underestimate the pressure to comply with intrusive requests from police.[138] While the study focused on consent searches, it is likely that a similar study in another consent context, like the free-to-leave test, would produce similar results.

The critique that the choice to comply is involuntary has only gained traction in the Supreme Court with respect to the third-party doctrine and, in particular, historic cell site location data and drug test results.[139] In that context, the Court appears to recognize that sometimes there is no actual choice, despite the rhetoric of one. For example, the Carpenter majority was motivated in part by the fact that cellphone use is unavoidable and that participation in modern society requires a cellphone. The third-party doctrine cannot apply, the reasoning goes, if people are not in fact choosing to reveal their historical cell site location data.

The Carpenter holding raises an unresolved question: Why is the decision to own a phone involuntary and unavoidable but other decisions—like consenting to a search or cellphone surveillance while on court supervision—a choice? Choosing to be subject to 24/7 GPS tracking instead of prison, or agreeing to a police consent search, is arguably just as involuntary, at least some of the time.

3.       Consent is Uninformed

The critique that the choice to consent to a traditional search is uninformed is a critique that extends to other forms of consent and waiver as well. For example, research shows that telling people their rights does not materially alter their decision-making—they still agree to speak to the police, accept a plea offer, or agree to restrictive conditions of release, to name just a few examples.[140] Even when people are informed of their right to refuse a consent search, most people still consent.[141] Certainly, part of the problem is that most people do not know or understand that refusing to consent to a search cannot be the basis for reasonable suspicion.[142] Likewise, even when people are told their Miranda warnings, most people do not know the “magic words” needed to actually invoke their rights.[143]

The critique that people do not know their rights or how to assert them is especially pronounced in the Fourth Amendment setting, where courts have created “a fiction that people can exercise rights they do not know they have.”[144] People may not know that they have rights they are giving up (like the right to walk away from a police encounter), or they may not know how to assert their rights (like the need to speak up to stay silent in the context of a custodial interrogation).[145]

But even if fully informed of their rights, people often do not appreciate the downstream consequences of waiving their rights or consenting to a search. For example, people accepting plea offers are frequently unaware of the full collateral consequences of a conviction,[146] and people agreeing to wear an electronic ankle monitor may not know what happens to the geolocation data being collected through the device.[147] Likewise, people who agree to provide a DNA sample in exchange for having their case dismissed may not fully understand the risks of inclusion in a DNA database.[148]

This concern is especially relevant in the context of data privacy, as people who consent to searches of their electronic devices or share data with third parties are rarely aware of how their data will be used or how long it will be stored.[149] As Professor Daniel Solove has observed, “Despite the embrace of notice and choice, people do not seem to be engaging in much privacy self-management.”[150] Instead, people “routinely turn over their data for very small benefits.”[151]

In many respects, technology amplifies the problems with informed consent and with consent more broadly. Consent searches of cellphones and other digital devices reveal an unprecedented amount of intimate information, and, in light of the Supreme Court’s prohibition on cellphone searches incident to arrest[152] and new limitations on geofence warrants,[153] it is likely that police and prosecutors will increasingly rely on consent to access otherwise private data stored on cellphones.[154]

4.       Consent Confers No True Benefit

As previously noted, the decision to consent to a traditional police search offers no legally recognized benefit to a suspect, in contrast to the decisions to accept a plea deal or agree to ankle monitoring, both of which offer the benefit of avoiding a worse outcome. Yet this distinction may be overstated.

As an initial matter, while the law does not recognize any formal benefit for consenting to a traditional search, the informal benefits are significant. When police ask for permission to search, the person may feel they are “bargaining in the shadow of a potential . . . arrest” or, worse, police harassment or violence.[155] Likewise, a person’s decision to waive their Miranda rights does not confer any benefit that courts recognize, but agreeing to speak may bring the person being questioned the benefit of avoiding harassment or worse. Of course, to say that avoiding police harassment is a “benefit” is problematic in itself, but for people in the situation, it may feel like one.

Even in settings where courts account for the benefits of consenting and waiving rights, the benefits may be overstated. For example, the presumption that plea agreements are mutually beneficial to the government and the accused person assumes a world in which prosecutors do not overcharge and always bargain fairly—two assumptions that scholars often contest.[156] The benefit of pleading guilty may be limited if the defendant should never have been charged with the pled-to offense to begin with. Similarly, agreeing to provide a DNA sample in exchange for having a case dismissed confers no real benefit if that person should never have been charged in the first place.[157]

Undergirding much of the waiver and consent doctrines is the assumption that consent and waiver allow people to avoid worse outcomes. For example, consenting to suspicionless searches or GPS tracking as a condition of release is justified in part because these options are better than prison. Likewise, plea agreements allow people to avoid harsher sentences or charges. To be sure, this may sometimes be true. But there is no empirical proof that monitoring or plea deals offer a true discount—that but for these options the same people would have faced harsher sentences or prison. This “unconstitutional conditions” problem reflects the “view that government may not do indirectly what it may not do directly”[158] and has been applied by courts in several contexts outside criminal law.[159] The challenge is how to determine the appropriate baseline, a problem that several criminal law scholars have explored.[160] If many people would be, and should be, entitled to the same level of leniency without giving up fundamental rights, then asking them to do so offers no actual benefit.

For all these reasons, the view that consent searches are unique because they confer no benefit should be rejected as incomplete. Rather, notions of benefits are complicated by realities on the ground, including the perception of the person being asked to consent or waive their rights.

5.       Consent Creates False Legitimacy

The critique that the choice to consent to a police search is fictitious also applies broadly. From plea bargaining to the free-to-leave test, the choice to consent or waive rights is often referred to as a “fiction”[161] bestowing a venire of legitimacy that allows the state to “escape constitutional limits.”[162] In the words of Professor Solove, “[F]ictitious consent works like dark magic; it is a mischievous sorcery that dupes and distorts.”[163]

Perhaps most fundamentally, the various forms of consent and waiver shift responsibility from the state to the individual.[164] Professor Josephine Ross explains that consent is constructed by the Supreme Court to “blame the victims of police encounters when officers violate their rights.”[165] This critique is not limited to police or traditional police searches. When a person chooses to forgo certain rights, consent is a “golden ticket” for the state and a form of “moral magic”[166] because the responsibility lies with the individual, not courts, prosecutors, or police.[167]

Consent also distorts and obscures the ways that race, gender, disability, citizenship status, and class all inherently impact why and when people consent.[168] By justifying rights restrictions on consent, system actors avoid questions of power imbalances, racial animus, and discrimination. Indeed, the deployment of arguably fictitious consent to justify various forms of subordination is not new. As historian Urvashi Chakravarty has explored in the context of early modern England, the “fictions of consent and the myth of benevolence” made various forms of service and “slavery both possible and palatable.”[169] This dynamic continued in the United States. Both before and after the signing of the Emancipation Proclamation, for example, consent and free will were routinely relied on to justify servitude and debt peonage.[170] While a complete historical analysis is beyond the scope of this Article, the tradition of relying on consent to justify subordination is important context when considering the question of consent abolition. Now, as then, consent “legitimizes activities that would otherwise be illegitimate, immoral, or illegal,” and now, as then, “legitimacy bestows power.”[171]

Not only does consent bestow legitimacy and unburden system actors of responsibility, but it also has the practical effect of allowing judges to sidestep thorny constitutional questions. That is, consent permits judicial avoidance. When state action is justified on consent, courts need not resolve otherwise complicated constitutional questions about rights deprivations, punishment, and conditions of release.[172] Likewise, consent allows police to avoid obtaining a warrant or providing any justification for a search that would be unconstitutional but for consent.[173]

III. Envisioning Criminal Procedure Without Consent

The first two Parts of this Article reveal that there are not particularly unique reasons to reform or eliminate only traditional consent searches. The operation of consent and waiver throughout criminal procedure is strikingly similar across doctrines, as are the critiques. This state of affairs begs the question: If all the various forms of consent and waiver detailed in the prior Parts are “fictitious,” then why continue the fiction instead of eliminating or reforming consent more broadly? This Part answers that question.

A.      Consent Reveals and Fills Gaps in the Law

Broadly eliminating the various forms of consent and waiver in criminal procedure would render much of the criminal legal system, including many of the doctrines described in Part II, inoperable. Indeed, considering what might happen if consent were broadly eliminated reveals the extent to which the criminal system relies on consent to keep itself afloat. A few examples illustrate the way consent does much of the heavy lifting in criminal procedure.

First, if all custodial interrogations were presumed non-consensual, regardless of someone waiving their Miranda rights, all custodial confessions would be inadmissible because they would not be considered voluntary.[174] Likewise, if every encounter between police and citizens were deemed a seizure, police would need an alternative legal basis to stop people. The third-party doctrine could also not operate as it does now. These changes would have the effect of immobilizing police investigation.

Second, but for consent, many pretrial, probation, and parole conditions could not be imposed. Judges could not require people to consent to ankle monitoring, electronic surveillance, or searches of their homes and personal property. Judges could only impose such restraints if they had an alternative legal basis separate and apart from consent.[175]

Finally, but for consent, plea bargaining could not operate as it does now. In an op-ed titled Go to Trial: Crash the Justice System, Professor Michelle Alexander raised such a possibility.[176] The piece opens with a question by Susan Burton, a civil rights advocate who spent years in prison:

What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?[177]

Professor Alexander goes on to opine that there would not be “enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation” and “the system would crash” because “it could no longer function as it had before.”[178] Consenting to the conditions in a plea offer, therefore, is a “necessary” attribute of the American penal system.[179]

These three examples reflect both the centrality of consent in the functioning of the criminal legal system and the extent to which the system would unravel without consent.[180] Put bluntly, broadly eliminating consent would destabilize the entire system. Consent and waiver are intrinsic features, not bugs, of criminal procedure jurisprudence. Consent is like the key wooden block in the game Jenga: If the consent “block” is removed, the tower crumbles.

In many respects, consent does the “dirty work” of the criminal legal system. When there is no other legal basis for state action or limitations on people’s rights, consent plugs the doctrinal hole.[181] Professors Tracey Meares and Bernard Harcourt observe that courts routinely make “voluntariness” a placeholder for an analysis of the competing interests of “order and liberty.”[182] Yet consent, which incorporates voluntariness, may be more than a mere placeholder; it does significant work to ensure the smooth and efficient operation of the criminal legal system.

To be sure, this Article is not suggesting that eliminating consent is either immediately tenable or necessarily desirable. Yet this inquiry is important because it reveals why consent and waiver remain “on the books” despite the widespread understanding that they are fictitious. Considering the central role that consent plays also reveals potential interventions that could minimize the system’s dependence on consent, short of broad abolition.

B.      Criminal Procedure with Less Consent

In many respects, the function of consent, waiver, and voluntariness in the criminal legal system reflects a double bind in which there are two necessary but contradicting truths. On one hand, given the inherently raced, classed, and gendered operation of the criminal legal system, it is difficult to imagine how there could ever be true free will, autonomy, and choice when the bargaining parties are individual people versus police, prosecutors, or judges. On the other hand, consent may be a troubling but necessary feature of criminal procedure. Given the current operation of the criminal legal system, consent remains an important, albeit fraught, opportunity for people to exercise some amount of autonomy and free will.

In light of the double bind, this Section proposes a context-based solution: In some contexts, consent should be eliminated; in others, consent should be limited through additional procedural protections and what I refer to as a “presumption of coercion.”

1.       Where to Eliminate Consent

There are some contexts where consent and waiver should be eliminated as the basis for justifying otherwise unconstitutional state action or rights deprivations. The key characteristics of these situations are: (1) consent is superfluous because police, prosecutors, or judges could rely on a separate legal basis to justify the same intrusion or restriction; (2) there is no actual choice to share intimate information (such as in Carpenter); and (3) consent offers no legal benefit or discount (such as traditional consent searches).

Applying this framework would alter several doctrines that turn on consent and waiver. Most obviously, police could not conduct traditional consent searches unless there was an alternative legal basis, like a warrant or a non-consent-based exception to the warrant requirement, to search the person or place. This is precisely the reform that the jurisdictions described in Part I of this Article have already undertaken.

Additionally, judges could not ask people to consent to otherwise unconstitutional pretrial or post-conviction release conditions. This would mean that judges could only impose conditions of release that are otherwise constitutional and permitted by governing law, such as pretrial release statutes. Stated differently, if the diversion programs or release provisions are otherwise unconstitutional, then courts could not rely on consent to do what they otherwise could not impose legally.[183]

To be sure, requiring judges to impose only legally permissible punishments, and not rely on consent, may not substantially alter their power because imposing punishment has never depended on consent. Judges never ask people if they “consent” to going to prison, so it follows that judges need not rely on consent to impose other forms of non-carceral punishments, like ankle monitoring or court supervision. As the law stands now, courts generally uphold conditions of probation and parole so long as the conditions “reasonably relate[]” to rehabilitation.[184] Consent need not play any role in courts imposing conditions of confinement.[185]

Courts could also expand the definition of a seizure to align with the idea that choosing to talk to the police is, for many people, not a choice—just as disclosing data to cellphone providers is not a choice in the traditional sense. If the law assumes that most people cannot freely opt to walk away from the police or terminate an encounter, it follows that most citizen-police encounters would be considered Fourth Amendment “seizures.” Consequently, police would need either reasonable suspicion or probable cause to engage in such encounters. Imagine how Mendenhall would have come out if the Court had presumed that Ms. Mendenhall had no choice but to engage with the police. If the Court did not assume that she had chosen to stay to talk to the police, then it would have found that she was seized, and the police would have needed at least reasonable articulable suspicion to justify the stop.[186]

Finally, per the unconstitutional conditions doctrine, the government should not rely on consent to justify rights deprivations that offer no actual discount or legal benefit.[187] For example, people should not be asked to consent to electronic monitoring if they would otherwise not be incarcerated. Indeed, a handful of lower courts have applied the unconstitutional conditions doctrine to criminal procedure settings, including a California Court of Appeal decision that noted, though did not rule, that the Orange County DNA program may violate the unconstitutional conditions doctrine.[188] Likewise, consent cannot be justified if the only reason to consent is to avoid an illegal benefit, like police violence.

Courts should also prohibit plea offers that require people to waive rights unrelated to the charges or basic trial rights.[189] Indeed, a small number of judges have done just that.[190] For example, a federal judge recently invalidated a plea agreement provision that prohibited the defendant from seeking compassionate release on the grounds that it was an “unconscionable application of a federal prosecutor’s enormous power to set the terms of a plea agreement.”[191] A detailed accounting of how plea bargains could be reformed is beyond the scope of this Article, but I explore the question of “shadow plea conditions”—conditions unrelated to the trial or sentence—in related work.[192]

2.       Where to Limit Consent

As previously noted, eliminating consent too broadly may deny people important opportunities for self-determination, even if those opportunities are fraught. For example, short of large-scale transformative change, plea bargaining remains an important, albeit problematic, option for people charged with crimes. As research and experience have shown time and again, a person’s race and gender (among other characteristics) significantly impact their chances of receiving a fair and impartial trial.[193] Given the risk of long prison sentences and the low odds of winning at trial, removing the option to plead guilty may be too severe.[194] Likewise, a person in prison today may still want the option to choose ankle monitoring if it means leaving prison earlier. But so long as the criminal legal system continues to operate in its current form, courts should better account for coercion in consent and waiver analysis. Additional procedural protections could address at least some coercion and equity concerns.

a.       Procedural Protections

To be sure, legal scholars sometimes critique increased procedural protections as “reformist reform” that make little difference or, worse, thwart more robust change by suggesting there is progress when there may be none.[195] Nonetheless, it may be important to consider a floor of procedural protections that could at least provide some counterweight to the coercion concerns associated with consent and waiver as they operate today.

For example, policy makers and police departments could improve the way people are informed of their right to refuse. In particular, Miranda warnings could more explicitly tell people how to invoke their rights, and courts could better account for social conventions and norms in evaluating what words or phrases count as invoking.[196]

Additionally, policy makers and courts could also extend warnings to other situations, to inform people both of their rights and of how to invoke them. As Part I described, several state reforms require police to tell people they have the right to refuse a consent search, but there is no reason to limit such a reform to just traditional consent searches. Indeed, Professor Carbado and others have proposed “free to leave warnings.”[197] These warnings would inform people that they have the right to walk away or terminate a police encounter. The Ohio Supreme Court considered this idea in State v. Robinette. Although the U.S. Supreme Court later overturned the decision, the Ohio Supreme Court concluded that during police interactions, police should tell people they “‘legally are free to go’ or . . . words of a similar import.”[198] The Ohio Supreme Court was not alone in this idea. As a concurring judge in an Eleventh Circuit case explained, the “Supreme Court should consider adopting a bright-line rule requiring officers to clearly advise citizens of their rights to end so-called consensual police encounters.”[199] Although Miranda-for-search warnings may “fail to address the psychology of compliance,”[200] the proposal is worth considering. Unlike in the Miranda context, where people are in custody and subject to police interrogation, people on the street may feel more emboldened to operationalize their rights (like the right to walk away) if they know what they are and how to invoke them.[201]

b.       Presumption of Coercion

In addition to imposing these procedural protections, courts could subject consent and waiver analysis to much greater scrutiny by imposing a presumption of coercion: Courts should presume that most people feel coerced when faced with demands from police, prosecutors, or judges. This presumption would be rebuttable, and in analyzing it, courts could account for the ways that consent and waiver are shaped by the defendant’s identity and lived experiences. This approach would ensure that courts see key social categories (such as race and gender) “as a matter of legal concern.”[202]

The proposal that courts adopt a more holistic evaluation of consent and waiver is not novel, especially when it comes to accounting for race. Contrary to the notion that courts generally adopt a “colorblind” approach to analyzing criminal procedure issues, a closer look at modern Fourth Amendment law paints a different picture. As Professor Daniel Harawa persuasively argues, Fourth Amendment law is “hardly race neutral” and already “accounts for race in both overt and coded ways.”[203] For example, the Supreme Court considers race with respect to policing immigration crimes,[204] and police are permitted to engage in race-based pretextual stops.[205] The problem, as Harawa explains, is that the doctrine “generally incorporate[s] a racial perspective based off the experience of [W]hite people.”[206] A small but growing number of lower courts have started to address the extent to which race in particular shapes not just the definition of a “seizure” but also other police-citizen encounters.[207] Although these cases are the exception, they still reflect what is possible.

The Supreme Court also has a track record of considering other personal characteristics in the context of criminal procedure. Take, for instance, J.D.B v. North Carolina, which held that a person’s age is a factor in determining if a seizure occurred.[208] As Justice Sotomayor explained, age “generates common sense conclusions about behavior and perception” that are relevant to the seizure analysis.[209] The same point about behavior and perception could be made about race, disability, and gender. As Professor Philip Hamburger has observed of waivers outside the criminal procedure context, there is a need to “recognize a complex spectrum of economic, personal, and other pressures to accept conditions, and an equally complex range of personal circumstances and psychology in which different persons feel the same pressures differently.”[210]

The original framework for analyzing consent searches, as articulated in Schneckloth v. Bustamonte, also offers a more expansive approach to considering people’s lived experiences in analyzing questions of consent and voluntariness. Although courts have since strayed from the standard, the Court in Schneckloth was clear: Voluntariness is determined by “careful scrutiny of all the surrounding circumstances,” including “the possibly vulnerable subjective state of the person who consents.”[211] This test, the Court explained, should consider individualized factors such as the accused person’s intelligence and level of schooling.[212] Courts could apply this same logic beyond the traditional police consent-search context.

C.      Answering Anticipated Objections

1.       Limiting Consent Will Make No Difference or Make Things Worse

There is a reasonable concern that limiting consent and waiver may make little difference or may exacerbate the exact problems that gave rise to reform efforts in the first place. Without consent, more power arguably shifts to the government to decide how much privacy people should have or what constitutes a fair plea offer or punishment. Moreover, if consent were removed, there would be other legal grounds for police, prosecutors, and judges to impose the same restrictions. They will simply find another way to get to the same outcome.

Yet reality belies these concerns, at least to some degree. As noted in Part I, the limits on traditional police consent searches led to fewer, but more fruitful, searches and fewer police-citizen interactions. While eliminating consent in other circumstances may not be a panacea solution to coercion, it could serve as a first step in chipping away at some of the more problematic corners of police and prosecution powers.

There is also a concern that removing consent more broadly would result in policies and practices that exacerbate the critiques addressed in Part II. For example, if the definition of a seizure were expanded to include more citizen-police exchanges, it would not be difficult for police to articulate a basis for reasonable suspicion. One need look no further than the stop-and-frisk practices in New York to see the extent to which police rely on Terry stops to disproportionately harass and search Black and Brown residents.[213] Likewise, if the third-party doctrine were significantly narrowed, police could either get a warrant or conduct the search pursuant to another exception to the warrant requirement, such as exigency.[214] Finally, if consent were not a basis to impose various search conditions associated with court supervision, courts might rely only on a general “reasonableness” standard.[215] As other scholars have opined, the reasonableness balancing test is “rigged such that the government almost always wins.”[216]

Yet limiting consent nonetheless removes a significant legal basis for restricting people’s liberty and privacy. Removing this power is not insignificant, nor is limiting the amount of contact between police and citizens. As Professor Carbado explains, “[S]imply limiting the frequency with which police interact with Black people could save Black lives. If the police have fewer opportunities to stop and question Black people, they have fewer opportunities to kill us.”[217]

There are also two significant advantages to the categorical approach of taking certain types of consent and waiver off the table. First, clear bright-line rules are easier to administer. Second, leaving these determinations to judicial discretion risks significant idiosyncratic rulings that fail to account for the critiques addressed in Part II.

2.       Limiting Consent Undermines Free Will

A second objection concerns free will. Giving people choices, even if the choices are coerced, allows people to exercise self-determination. Consider people who want to proactively deflect suspicion by initiating a conversation with the police or, “without being asked, tell[ing] a police officer that they can search their bag.”[218] Even if consent is fictitious or inherently coerced, the value of autonomy arguably “demands at least some freedom to choose even when people’s choices are not in their best interest or are made under imperfect circumstances.”[219] As Professor Alexander powerfully explained in her op-ed contemplating the elimination of plea bargaining:

As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children . . . . I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk — even if it would send shock waves through a fundamentally immoral and unjust system?[220]

As this excerpt suggests, free will remains important, even if the choice is coerced and inequitable.

Yet the commitment to free will cannot trump all other considerations. In addressing the purported choice between prison and wearing an ankle monitor, Professor Alexander problematized the idea of “choice” this way: “If you asked slaves if they would rather live with their families and raise their own children, albeit subject to ‘[W]hites only signs,’ legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow.”[221] Likewise, “[I]f you ask people in prison whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor.”[222]

The point is that simply giving someone a choice does not make their exercise of free will unproblematic. Indeed, one way of viewing the exercise of free will in coercive contexts is as “autonomy as resistance,” a term Professor Kathryn Miller coined to explain how exercising choice in the criminal legal system occurs in spite of—not because of—individual rights.[223] The power to make decisions about one’s own life, even if coerced, could be viewed as a form of resistance, a “mode of survival and a means of hanging on to one’s dignity and self-respect in a world that diminishes them.”[224] It is important, however, not to confuse necessary resistance with true autonomy in this context. With respect to consent and waiver in the criminal legal system, people make decisions because they must, not because the decisions they are forced to make are fair, equitable, or uncoerced.[225] The reality is that free will and true autonomy are already significantly limited in the criminal legal system. To the extent that exercising free will is possible, the operation of consent and waiver in various criminal procedure doctrines rarely allows free will to be expressed in any genuine way.

Lastly, removing people’s ability to consent and make personal choices is not a new concept. There are many examples of the law taking choices off the table. In substantive criminal law, for example, statutory rape laws remove the option for underage complainants to consent to sex.[226] Extensive regulations govern informed consent in health law, and contract law prohibits unconscionable contracts.[227] Yet the same prohibitions on consent have not been applied in the criminal procedure context. While laws prohibit people from selling their organs, even if the alternative is to be without food or a house, criminal procedure laws permit people to “sell” privacy, liberty, and trial rights in exchange for leniency, such as avoiding prison. There is little doctrinal explanation, or justification, for these different views of consent.

3.       Limiting Consent Undermines Public Safety

Finally, there is also a concern that broadly eliminating or limiting consent could undermine public safety. For example, without the ability to search the home of a person on probation, potential violations or other illegal conduct could go undetected. Likewise, if every police encounter required at least reasonable suspicion, and the third-party doctrine were narrowed, police and prosecutors would be limited in their abilities to investigate and prosecute crimes.

Yet the concern for public safety may be inflated for three general reasons. First, crime has not gone up in the jurisdictions that eliminated consent searches.[228] In the jurisdictions that limited consent searches, the number of overall searches went down, and the searches that did occur tended to yield more contraband (as compared to pre-reform searches).[229] Professor Ross studied consent-search abolition in Scotland and found that “[e]liminating consent searches did not create more crimes.”[230] Moreover, there is little compelling evidence to the contrary: More consent searches do not lead to greater public safety or less crime. In Washington, D.C., for example, of the 4,427 consent searches during 2019 and 2020, only 2.3 percent resulted in gun seizures and only 9.5 percent resulted in criminal evidence seizures.[231] Of course, reforming traditional consent searches is different than eliminating or reforming all forms of consent, but the lessons remain relevant and suggest that concerns about public safety may be overstated.

Second, as previously noted, there are other legal mechanisms for police, prosecutors, and judges to accomplish the same result without consent.[232] Limiting the system’s dependence on consent is not the same as abolishing all forms of policing and prosecution. Police would still have at their disposal, for example, Terry stops and frisks (assuming there is a legal basis), the exigency exception to the warrant requirement, and so on.

Finally, as the Supreme Court noted in the context of forbidding warrantless cellphone searches, “privacy comes at a cost.”[233] Likewise, not relying on consent to justify otherwise unconstitutional restraints may come at a cost, but perhaps it is a price worth paying. Simply because people can consent to rights restrictions and privacy deprivation does not mean that they should.

*          *          *

Conclusion

The observations offered in this Article make transparent the role that consent and waiver play throughout criminal procedure law: They are simultaneously necessary for the operation of the criminal legal system and uniformly critiqued as fictitious, uninformed, and coerced. Indeed, there is nothing uniquely coercive about traditional consent searches that makes them especially amenable to reform, as compared to the other forms of consent and wavier that pervade criminal procedure doctrines.

Yet if the criminal legal system continues to rely on these fictitious choices to justify otherwise unconstitutional state action, this Article urges a clear-eyed accounting of how consent actually operates, as well as a deeper understanding of the normative and ideological values at work in maintaining these fictions. Questioning the role and purpose of consent is not merely an academic or theoretical exercise. As the state and local reforms to consent searches demonstrate, it is possible to significantly limit the legal system’s reliance on consent and waiver.

Appendix A: Reforms to Consent Searches

Please see the PDF version of this article for access to this Appendix.

Copyright © 2025 Kate Weisburd, Professor of Law, University of California School of Law, San Francisco. For helpful feedback and conversations, I thank: Chaz Arnett, Jeffery Bellin, Erin Collins, Andrew Guthrie Ferguson, Barry Friedman, Daniel Harawa, Vida Johnson, Kathryn Miller, Jamelia Morgan, Saira Mohamed, Jyoti Nanda, Lucius T. Outlaw III, Andrea Roth, Maneka Sinha, Daniel Solove, Christopher Slobogin, Roseanna Sommers, Ji Seon Song, Tania Valdez, Ari Ezra Waldman, and participants at the 2023 Vanderbilt Criminal Law Roundtable, the 2024 Privacy Law Scholars’ Conference at Georgetown Law School, and the Spring 2024 Markelloquium at Brooklyn Law School. I am especially indebted to my extraordinary research assistants: Kelly Hennessy, Grace Hong, Simone Oberschmied, and Kendall Parker. Sincere thanks to the incredible editors at the California Law Review.

          [1].     Advocates pushing to eliminate police consent searches in D.C. cited to a video of a typical encounter between police and a D.C. resident. See Kaylah Alexander, Josephine Ross, Patrice Sulton & Leah Wilson, Eliminate Consent Searches 5 (2020) (citing Soup Visions, White Washington DC Police Harassing Me Again, YouTube (Nov. 15, 2017) https://www.youtube.com/watch?feature=youtu.be&v=cghtBX19cjA [https://perma.cc/N7MP-CFZ2]).

          [2].     See infra Part II.B.

          [3].     See Alexander, et al., supra note 1, at 2.

          [4].     Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness, 67 Fla. L. Rev. 509, 513 (2015) (quoting Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1618 (2012) (“Consent is placed in scare quotes . . . because virtually no one believes these searches are the product of a voluntary choice . . . .”)).

          [5].     See Part I.B; Principles of the L. Policing § 4.06 (A.L.I. 2022), https://www.policingprinciples.org/chapter-4/4-06-consent-searches/ [https://perma.cc/5E53-KWRC].

          [6].     See infra Part II.A.

          [7].     See infra Part II.A.1.b.            

          [8].     See email from J.R. to Kate Weisburd (Jan. 10, 2024, 06:12 EST) (on file with author).

          [9].     For empirical data and analyses of impact of supervision rules on people’s rights, see generally Kate Weisburd, Carceral Control: A Nationwide Survey of Criminal Court Supervision Rules, 58 Harv. C.R.-C.L. L. Rev. 1 (2023).

        [10].     See infra Part II.B.

        [11].     See Christopher Slobogin & Kate Weisburd, Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases, 101 Wash. U. L. Rev. 1913 (2024).

        [12].     See Carpenter v. United States, 585 U.S. 296 (2018) (limiting the third-party doctrine with respect to historic cell site location data); Ferguson v. City of Charleston, 532 U.S. 67, 84–85 (2001) (rejecting consent as a basis for sharing drug test results from pregnant women with police).

        [13].     See infra Part III.A.

        [14].     Several scholars have proposed abolishing or reforming traditional police consent searches. See, e.g., Devon Carbado, Unreasonable Black Lives, Police Power, and the Fourth Amendment 55–56 (2022); Josephine Ross, Abolishing Police Consent Searches Through Legislation: Lessons from Scotland, 72 Am. U. L. Rev. 2017, 2026, 2028 (2023); Bar-Gill & Friedman, supra note 4, at 1618; Stephen E. Henderson & Guha Krishnamurthi, A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment, 85. Ohio St. L. Rev. 33 (2024); Phyllis T. Bookspan, Reworking the Warrant Requirement: Resuscitating the Fourth Amendment, 44 Vand. L. Rev. 473, 524 (1991); Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 213 (2002); George C. Thomas III, Terrorism, Race and a New Approach to Consent Searches, 73 Miss. L.J. 525, 551–52 (2003); Nirej Sekhon, Willing Suspects and Docile Defendants: The Contradictory Role of Consent in Criminal Procedure, 46 Harv. C.R.-C.L. L. Rev. 103, 140 (2011); Philip Hamburger, Unconstitutional Conditions: The Irrelevance of Consent, 98 Va. L. Rev. 479, 543 (2012); Tracey Maclin, The Good and Bad News About Consent Searches in the Supreme Court, 39 McGeorge L. Rev. 27, 79–81 (2008); Ric Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 Ind. L.J. 773, 775–76 (2005).

        [15].     In a related paper, Professor Chris Slobogin and I explore constitutional arguments for limiting reliance on consent in various criminal procedure contexts. See Slobogin & Weisburd, supra note 11.

        [16].     See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 249 (1973).

        [17].     Id. at 232–34.

        [18].     Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990).

        [19].     Schneckloth, 412 U.S. at 223–24.

        [20].     See Strauss, supra note 14, at 222, 227 (examining hundreds of lower court cases and concluding that courts give “overwhelming attention to police behavior and . . . virtual inattention” to “whether consent is the product of a person’s ‘free will and unconstrained choice[]’”); Brian A. Sutherland, Note, Whether Consent to Search Was Given Voluntarily: A Statistical Analysis of Factors that Predict the Suppression Rulings of the Federal District Courts, 81 N.Y.U. L. Rev. 2192, 2204, 2215 (2006) (analyzing all consent searches discussed in federal district court opinions during a roughly twenty-eight month period and concluding that “[f]actors relating to the individual traits of the defendant received relatively little discussion”).

        [21].     412 U.S. at 226-27; see also Simmons, supra note 14, at 778 (describing the Court as going “out of its way” to emphasize that “subjective as well as objective factors” are to be considered in determining the voluntariness of consent searches).

        [22].     Schneckloth, 412 U.S. at 248.

        [23].     See Maclin, supra note 14, at 61 (lamenting “the modern Court’s abandonment of Bustamonte’s ‘voluntariness’ test and its substitution of a ‘reasonableness’ test that considers only objective facts or criteria”); Simmons, supra note 14, at 775, 784–85 (describing the “evolution” of the doctrine from a subjective test focused on the individual characteristics of the defendant to an objective test focused on how a reasonable person would feel); Strauss, supra note 14, at 229 (“Recent Supreme Court decisions under both the Fourth and Fifth Amendments seem to be moving the law away from subjective considerations and towards an objective standard.”).

        [24].     See, e.g., United States v. Maragh, 756 F. Supp. 18, 23 (D.D.C. 1991) (holding consent involuntary in light of police conduct, including the failure of police to tell the defendant he could refuse the consent search); United States v. Hardeman, 36 F. Supp. 2d 770, 779 (E.D. Mich. 1999) (holding consent not voluntary in the context of police seeking to search the defendant’s apartment); United States v. Perez, 644 F.2d 1299 (9th Cir. 1981) (holding consent involuntary where customs agents approached the defendants with drawn weapons).

        [25].     After completing my survey, I learned of a new article by Professor Josephine Ross that examines legislative efforts, both in the United States and abroad, to limit consent. Her article is the first to focus attention on legislative efforts in the area of consent. My survey offers a different contribution as it covers all states and includes not just legislative efforts but court cases and agency reform as well. See Ross, supra note 14, at 2028.

        [26].     See infra Appendix A for a complete list of jurisdictions and the nature of the reform.

        [27].     See infra Appendix A.

        [28].     See infra Appendix A.

        [29].     See infra Appendix A.

        [30].     D.C. Code Ann. § 23-526 (West 2023).

        [31].     Id.

        [32].     Principles of the L. Policing § 4.06 (b)(3) (A.L.I. 2022).

        [33].     See, e.g., infra Appendix A, at Arkansas (Ark.) (applying the duty to warn only to consent searches of houses); Connecticut (Conn.) (applying the requirements to record consent only to car searches).

        [34].     See infra Appendix A, at Hawai‘i (Haw.) (recommending police obtain written consent).

        [35].     See infra Appendix A, at New Orleans, La. (requiring police written consent and inform people of right to refuse to consent); Northampton, Ma. (requiring police to inform people that they have right to refuse consent and recommending written consent).

        [36].     See infra Appendix A, at New Orleans, La. (requiring police written consent and inform people of right to refuse to consent); Northampton, Ma. (requiring police to inform people that they have right to refuse consent and recommending written consent).

        [37].     See, e.g., Appendix A, at Connecticut (Conn.) (prohibiting consent searches without some other additional basis); San Francisco, CA (providing that, during certain traffic stops, police “shall only ask for permission to conduct a consent search of a person or vehicle where the member has reasonable suspicion or probable cause that a criminal offense has occurred, is occurring, or is about to occur”).

        [38].     Principles of the L. Policing § 4.06 (b)(1).

        [39].     Settlement Agreement and Order, State v. City of Minneapolis, at 46 (2023), https://mn.gov/mdhr/assets/Court%20Enforceable%20Agreement_tcm1061-571942.pdf [https://perma.cc/W2XM-REPJ].

        [40].     Conn. Gen. Stat. Ann. § 54-33o (West 2020).

        [41].     Minneapolis Settlement, supra note 39, at 76.

        [42].     Oakland Police Dep’t, Departmental General Order, Searches Of Individuals On Supervised Release (2019), 3, https://public.powerdms.com/oakland/tree/documents/1800988 [https://perma.cc/ZUQ6-8BNV]. See also Berkeley Police Dep’t, Law Enforcement Services Manual, Pol’y 311: Search and Seizure 116-17 (2023), https://berkeleyca.gov/sites/default/files/documents/RELEASE_20231208_T184217_Berkeley%20PD%20Policy%20Manual_0.pdf [https://perma.cc/XSC4-N3TM].

        [43].     See generally Appendix A.

        [44].     See infra Appendix A, at South Dakota (S.D.), Kansas (Kan.), Texas (Tex.).

        [45].     See infra Appendix A, at South Dakota (S.D.), Kansas (Kan.), Texas (Tex.).

        [46].     State v. Nemeti, 472 N.W.2d 477, 478 (S.D. 1991).

        [47].     See, e.g., U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, 64–65 (2015); Jenna K. Perrin, Towards Eradicating the Pervasive Problem of Racial Profiling in Minnesota, 27 Hamline L. Rev. 63, 88–91 (2004); Cleveland Police Monitoring Team First Semiannual Report 14 (2016); David Graham, The Horror of the Baltimore Police Department, Atlantic (Aug. 10, 2016), https://www.theatlantic.com/news/archive/2016/08/the-horror-of-the-baltimore-police-department/495329/ [https://perma.cc/6KP8-FJ3X] (discussing a DOJ report that found that Baltimore police disproportionately targeted Black people, leading to frequent arrests, stops, and searches).

        [48].     See, e.g., 31 R.I. GEN. LAWS § 31-21.2-3 (2020) (racial profiling); id. § 31-21.2-5(b) (consent searches); Dirk VanderHart, Oregon Lawmakers Take Fresh Look at Bill to Limit Minor Traffic Stops, Or. Pub. Broad., (Feb. 4, 2022), https://www.opb.org/article/2022/02/04/oregon-lawmakers-take-fresh-look-at-bill-to-limit-minor-traffic-stops/ [https://perma.cc/7BEQ-7UBR] (discussing racial justice concerns); N.Y.U. Sch. L. Policing Project, An Act to Curtail Pretexual Traffic Stops 1, https://www.policingproject.org/pretextual-traffic [https://perma.cc/G6B9-32BN] (proposing a draft statute “to curtail the use of pretextual traffic stops” that have “exacerbated racial disparities in policing”).

        [49].     See Stephen Rushin & Griffin Edwards, An Empirical Assessment of Pretextual Stops and Racial Profiling, 73 Stan. L. Rev. 637, 657 (2021); Emma Pierson, Camelia Simoiu, Jan Overgoor, Sam Corbett-Davies, Daniel Jenson, Amy Shoemaker, Vignesh Ramachandran, Phoebe Barghouty, Cheryl Phillips, Ravi Shroff & Sharad Goel, A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nature Hum. Behav. 736, 737 (2020).

        [50].     Bar-Gill & Friedman, supra note 4.

        [51].     Carbado, supra note 14, at 89.

        [52].     Principles of the L. Policing § 4.06, cmt. a (A.L.I. 2022).

        [53].     Mayor and Police Chief Announce PPB Will Change Traffic Enforcement, Consent Search Protocols, City of Portland, (June 22, 2021), https://www.portland.gov/wheeler/news/2021/6/22/mayor-and-police-chief-announce-ppb-will-change-traffic-enforcement-consent [https://perma.cc/TA9D-T5DX].

        [54].     See, e.g., State v. Brown, 356 Ark. 460, 466 (2004) (“It is the intimidation effect of multiple police officers appearing on a home dweller’s doorstep, sometimes in uniform and armed, and requesting consent to search without advising the home dweller of his or her right to refuse consent that presents the constitutional problem.”); State v. Ferrier, 136 Wash.2d 103, 112 (1998) (“In no area is a citizen more entitled to his privacy than in his or her home. For this reason, ‘the closer officers come to intrusion into a dwelling, the greater the constitutional protection.’”); State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997) (observing that people with limited English proficiency may be particularly susceptible to coercion); State v. Fort, 660 N.W.2d 415, 416 (Minn. 2003) (addressing traffic stops); State v. Carty, 170 N.J. 632, 644 (2002) (same).

        [55].     Brown v. State, 182 P.3d 624, 626 (Alaska Ct. App. 2008).

        [56].     Id.

        [57].     Carty, 170 N.J. at 641.

        [58].     See, e.g., Philip V. McHarris & Thenjiwe McHarris, No More Money for Police, N.Y. Times (May 20, 2020), https://www.nytimes.com/2020/05/30/opinion/george-floyd-police-funding.html [https://perma.cc/5NPD-HEJP] (calling for criminal justice reform); Amna A. Akbar, Non-Reformist Reforms and Struggles over Life, Death, and Democracy, 132 Yale L.J. 2497, 2504 (2023) (discussing the social movements following the death of George Floyd).

        [59].     See Frank R. Baumgartner, Derek A. Epp & Kelsey Shoub, Suspect Citizens 195, 201–04 (2018).

        [60].     Derek A. Epp & Macey Erhardt, The Use and Effectiveness of Investigative Police Stops, 9 Pol., Grps. & Identities 1016, 1016–17 (2021).

        [61].     Megan Dias, Derek A. Epp, Marcel Roman & Hannah L. Walker, Consent Searches: Evaluating the Usefulness of a Common and Highly Discretionary Police Practice, 21 J. Empirical Legal Stud. 35, 46–49 (2024).

        [62].     See Baumgartner, Epp & Shoub, supra note 59, at 215; Racial and Identity Profiling Advisory Bd., Annual Report 2023, 8, 12 (2023), https://oag.ca.gov/system/files/media/ripa-board-report-2023.pdf [https://perma.cc/GLP6-GDA5].

        [63].     N.Y. Police Dep’t, Consent to Search Report (2023) https://www.nyc.gov/site/nypd/stats/reports-analysis/consent-to-search.page [https://perma.cc/J86N-8H6A].

        [64].     See QuickFacts, New York City, New York, U.S. Census Bureau (July 1, 2024), https://www.census.gov/quickfacts/fact/table/newyorkcitynewyork [https://perma.cc/6BCT-PNYB].

        [65].     See, e.g., Nancy Leong & Kira Suyeishi, Consent Forms and Consent Formalism, 2013 Wis. L. Rev. 751 (2013); Strauss, supra note 14, at 253–54; Roseanna Sommers & Vanessa K. Bohns, The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance, 128 Yale L.J. 1962, 2014–15 (2019).

        [66].     Steven Brown, The Rhode Island General Assembly in the Defense of Civil Liberties, 12 Roger Williams Univ. L. Rev. 361, 375 (2007).

        [67].     Off. L. Enf’t Pro. Standards N.J., Aggregate Reports Of Traffic Enforcement Activities, https://www.njoag.gov/about/divisions-and-offices/office-of-law-enforcement-professional-standards-home/oleps-library/oleps-aggregate-reports-of-traffic-enforcement-activities/ [https://perma.cc/7W2J-KL33].

        [68].     To compare rates of consent searches based on data provided by the New Orleans Police, see New Orleans Police Dep’t, 2021 Stop and Search Annual Report 32 (2022).

        [69].     United States v. Drayton, 536 U.S. 194, 207-08 (2002).

        [70].     See generally Bruck J. Winick, On Autonomy: Legal and Psychological Perspectives, 37 Vill. L. Rev. 1705 (1992).

        [71].     See Nirej Sekhon, Willing Suspects and Docile Defendants: The Contradictory Role of Consent in Criminal Procedure, 46 Harv. C.R.-C.L. L. Rev. 103, 137–40 (2011) (using political theory to analyze the role of consent in Fourth Amendment searches, plea bargaining, and confessions).

        [72].     Miranda v. Arizona, 384 U.S. 436, 460 (1966).

        [73].     See id. at 477.

        [74].     Id. at 467.

        [75].     See Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. 1519, 1527-29 (2008); Marcy Strauss, Understanding Davis v. United States, 40 Loy. L.A. L. Rev. 1011, 1057 (2007); Roseanna Sommers & Kate Weisburd, “Legally Magic” Words: An Empirical Study of the Accessibility of Fifth Amendment Rights, 119 Nw. U. L. Rev. 637 (2024).

        [76].     See Brady v. United States, 397 U.S. 742, 752 (1970) (observing that “the advantages of pleading guilty and limiting the probable penalty are obvious—his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated”); see also Santobello v. New York, 404 U.S. 257, 261 (1971) (noting that plea bargaining is “not only an essential part of the [criminal justice] process but a highly desirable part”).

        [77].     Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978); see also United States v. Ruiz, 536 U.S. 622, 633 (2002) (upholding a waiver of the right to seek impeachment information); United States v. Mezzanatto, 513 U.S. 196, 196 (1995) (holding that rights under Rule 410 are waivable).

        [78].     See, e.g., Superior Court of California, County of Orange, Domestic Violence Misdemeanor Guilty Plea Form (on file with author); State of Indiana, County of Spencer, Plea and Sentencing Agreeing (on file with author).

        [79].     See, e.g., People v. Chen, 430 N.Y.S.2d 469, 473 (1980) (holding that a waiver of record sealing rights was knowing and intelligent, and therefore enforceable, even though such waiver is generally disfavored); United States v. Bridgewater, 995 F.3d 591, 602 (7th Cir. 2021) (upholding a plea agreement that required the defendant to waive the right to seek compassionate release); see also Kate Weisburd, Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring, 98 N.C. L. Rev. 717 (2020); Kate Weisburd & Andrea Roth, Shadow Plea Conditions (forthcoming) (on file with author).

        [80].     Bordenkircher, 434 U.S. at 363. But see United States v. Osorto, 445 F. Supp. 3d 103, 105, 109 (N.D. Cal. 2020) (rejecting a plea offer containing an agreement to not seek compassionate release and explaining that it “is no answer to say that [the defendant] is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table”).

        [81].     Brady, 397 U.S. at 748.

        [82].     Id. at 750.

        [83].     Faretta v. California, 422 U.S. 806, 833–35 (1975).

        [84].     Johnson v. Zerbst, 304 U.S. 458, 465 (1938).

        [85].     Faretta, 422 U.S. at 835 (internal citation omitted).

        [86].     See Fed. R. Crim. P. 23(a); United States v. Laney, 881 F.3d 1100, 1106 (9th Cir. 2018) (“To be valid, a defendant’s waiver of the Sixth Amendment right to a jury trial must be voluntary, knowing, and intelligent.”).

        [87].     See, e.g., Sara Zampierin, Mass E-Carceration: Electronic Monitoring as a Bail Condition, 2023 Utah L. Rev. 589 (2023); Prithika Balakrishnan, Mass Surveillance as Racialized Control, 71 UCLA L. Rev. 478 (2024). In San Francisco, for example, the city defended pretrial GPS tracking and suspicionless searches on the grounds that the defendant consented to those restrictions instead of remaining in custody. See Simon v. City & Cnty. of San Francisco, No. 22-CV-05541-JST, 2024 WL 590360, at *13, *22 (N.D. Cal. Feb. 13, 2024).

        [88].     Andrea Roth, “Spit and Acquit”: Prosecutors as Surveillance Entrepreneurs, 107 Calif. L. Rev. 405, 417 (2019).

        [89].     See id. at 417-18.

        [90].     See Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo. L.J. 291, 317 (2016); Weisburd, Carceral Control, supra note 9, at 9 (2023).

        [91].     See Weisburd, supra note 9; Kate Weisburd, Varun Bhadha, Matthew Clauson, Jeanmarie Elican, Fatima Kahn, Kendall Lawrenz, Brooke Pemberton, Rebecca Ringler, Jordan Schaer, Mikayla Sherman & Sarah Wohlsdorf, Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System, 8 (Geo. Wash. U. L. Sch. Pub. L. Rsch. Paper, Paper No. 2021-41, 2021).

        [92].     See Weisburd, supra note 9, at 11.

        [93].     Id. at 5.

        [94].     See, e.g., United States v. McCoy, 847 F.3d 601, 605 (8th Cir. 2017); People v. Thornburg, 895 N.E.2d 13, 23–24 (Ill. App. 2 Dist. 2008); State v. Gonzalez, 862 N.W.2d 535, 542 (N.D. 2015); People v. Olguin, 198 P.3d 1, 4 (Cal. 2008); United States v. Barnett, 415 F.3d 690, 691-92 (7th Cir. 2005).

        [95].     People v. Anderson, 235 P.3d 11, 20 (Cal. 2010); see also United States v. Smith, 414 F.2d 630, 636 (5th Cir. 1969) (explaining that the defendant “could have rejected probation and elected prison” but, having “chose[n] to enjoy the benefits of probation,” had to “endure its restrictions”).

        [96].     United States v. Lara, 815 F.3d 605, 609 (9th Cir. 2016); see also United States ex rel. Coleman v. Smith, 395 F. Supp. 1155, 1157 (W.D.N.Y. 1975) (holding that a consent-search provision in a parole agreement was coercive and involuntary); Roman v. State, 570 P.2d 1235, 1241–42 (Alaska 1977) (holding that released defendants do not voluntarily consent to all conditions of parole); People v. Reyes, 19 Cal.4th 743, 737 (1998) (holding that suspicionless searches of parolees cannot be justified by consent if a prospective parolee is not free to accept or reject parole).

        [97].     United States v. Knights, 534 U.S. 112, 118 (2001) (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)).

        [98].     Transcript of Oral Argument at 9-10, Knights, 534 U.S. (No. 00-1260).

        [99].     Samson v. California, 547 U.S. 843, 852 n.3 (2006); Knights, 534 U.S. at 118 (quoting Robinette, 519 U.S. at 39).

      [100].     Samson, 547 U.S. at 844; Knights, 534 U.S. at 114, 118-19.

      [101].     United States v. Mendenhall, 446 U.S. 544, 554 (1980).

      [102].     See Carbado, supra note 14, at 43.

      [103].     See, e.g., Illinois v. Wardlow, 528 U.S. 119, 120 (2000) (“An individual, when approached, has a right to ignore the police and go about his business.”).

      [104].     446 U.S. 544, 554 (1980).

      [105].     Id. at 555.

      [106].     Id. at 558.

      [107].     Florida v. Bostick, 501 U.S. 429, 432 (1991); United States v. Drayton, 536 U.S. 194, 197 (2002).

      [108].     Drayton, 536 U.S. at 202; Bostick, 501 U.S. at 437.

      [109].     536 U.S. at 203-04.

      [110].     See Daniel S. Harawa, Whitewashing the Fourth Amendment, 111 Geo. L.J. 923, 939, 947 (2023); Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 969 (2002).

      [111].     Drayton, 536 U.S. at 207.

      [112].     See Johnny Kerr, Riding on Horseback to the Moon: Consent Searches in the Digital Age (2024) (unpublished manuscript) (on file with author).

      [113].     Sommers & Bohns, supra note 65, at 1987.

      [114].     585 U.S. 296, 298 (2018).

      [115].     Id. (quoting Riley v. California, 573 U.S. 373, 385 (2014)).

      [116].     Id. at 315.

      [117].     308 F.3d 380, 403 (4th Cir. 2002).

      [118].     See infra Part II.B.4.

      [119].     See, e.g., Carbado, supra note 14, at 51 (observing that fear of the police and safety concerns will “pressure for Blacks to terminate police encounters by giving up their rights, consenting to searches, and otherwise being overly cooperative”).

      [120].     See generally Carbado, supra note 110; Daniel Harawa, Coloring in the Fourth Amendment, 137 Harv. L. Rev. 1533, 1536 (2024); Chaz Arnett, Black Lives Monitored, 69 UCLA L. Rev. 1384, 1411 (2023); Paul Butler, The White Fourth Amendment, 43 Tex. Tech L. Rev. 245, 246–47 (2010); I. Bennett Capers, Criminal Procedure and the Good Citizen, 118 Colum. L. Rev. 653, 654–55 (2018); Aliza Hochman Bloom, Long Overdue: Confronting Race in the Fourth Amendment’s Free to Leave Analysis, 65 How. L.J. 1, 7 (2021); Kristin Henning, The Reasonable Black Child: Race, Adolescence, and the Fourth Amendment, 67 Am. U. L. Rev. 1513, 1529 (2018); Christy E. Lopez, The Reasonable Latinx: A Response to Professor Henning’s The Reasonable Black Child: Race, Adolescence, and the Fourth Amendment, 68 Am. U. L. Rev. F. 55 (2019).

      [121].     Carbado, supra note 110, at 970.

      [122].     Carbado, supra note 14, at 62.

      [123].     In re J.M., 619 A.2d 497, 513 (D.C. 1992) (Mack, J., dissenting); see also State v. Harris, 590 N.W.2d 90, 106 n.4 (Minn. 1999) (Page, J., dissenting) (“I speak from the perspective of an African-American male who was taught by his parents that, for personal safety, . . . it is best to comply carefully and without question to the officers’ request”); Utah v. Strieff, 579 U.S. 232, 254 (2016) (Sotomayor, J., dissenting) (describing “the talk” that Black parents give their children on how to interact with police to stay alive).

      [124].     For detailed accounts of the false confessions in this case, see When They See Us (Netflix 2019); Kevin Richardson Explains Why He Falsely Confessed to the Central Park Jogger Case at 14 Years Old, Access, (July 16, 2019), https://www.accessonline.com/videos/kevin-richardson-explains-why-he-falsely-confessed-to-the-central-park-jogger-case-at-14-years-old [https://perma.cc/45YE-DQVB].

      [125].     See, e.g., Evan Nesterak, Coerced to Confess: The Psychology of False Confessions, Behav. Scientist (Oct. 21, 2014), https://behavioralscientist.org/coerced-to-confess-the-psychology-of-false-confessions/ [https://perma.cc/WRZ6-QSUB]; Barbara O’Brien, Klara Stephens, Maurice Possley & Catherine M. Grosso, Latinx Defendants, False Convictions, and the Difficult Road to Exoneration, 66 UCLA L. Rev. 1682, 1690 (2019); Samuel R. Gross, Kristen Jacoby, Daniel J. Matheson, Nicholas Montgomery & Sujata Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 545 (2005); Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1066 (2010).

      [126].     See generally Carlos Berdejó, Criminalizing Race: Racial Disparities in Plea-Bargaining, 59 B.C. L. Rev. 1187 (2018) (discussing plea deals and race); Chaz Arnett, From Decarceration to E-Carceration, 41 Cardozo L. Rev. 641 (2019) (discussing electronic monitoring).

      [127].     See, e.g., Jamelia Morgan, Disability’s Fourth Amendment, 122 Colum. L. Rev. 489, 536–37 (2022); Rachel Harmon, Law and Orders, 123 Colum. L. Rev. 943, 971 (2023); Trevor George Gardner, Police Violence and the African American Procedural Habitus, 100 B.U. L. Rev. 849, 892 (2020); Josephine Ross, A Feminist Critique Of Police Stops (2021); Dana Raigrodski, Consent Engendered: A Feminist Critique of Consensual Fourth Amendment Searches, 16 Hastings Women’s L.J. 37, 37–38 (2004); Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. Crim. L. 231, 262 (2008).

      [128].     See e.g., Sommers & Bohns, supra note 65, at 1974 (discussing consent searches); David K. Kessler, Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim. L. & Criminology 51, 52 (2009) (discussing the free to leave test); Michelle Alexander, Go to Trial: Crash the Justice System, N.Y. Times (Mar. 30, 2012) (discussing the decision to accept a plea offer).

      [129].     Capers, supra note 120, at 665–67.

      [130].     Id. at 700.

      [131].     See Sommers & Bohns, supra note 65, at 1994.

      [132].     See, e.g., Sommers & Weisburd, supra note 75, at 684; Weisselberg, supra note 75, at 1527–29; Yale Kamisar, The Rise, Decline, and Fall(?) of Miranda, 87 Wash. L. Rev. 965, 984 (2012); Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rev. 1000, 1021 (2001).

      [133].     Samson v. California, 547 U.S. 843, 863 n.4 (Stevens, J., dissenting) (quoting 5 Wayne LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.10(b), at 440–41 (4th ed. 2004)).

      [134].     See generally Doherty, supra note 90; Weisburd, Sentenced to Surveillance, supra note 79.

      [135].     Vincent Schiraldi, Mass Supervision 41 (2023).

      [136].     Sommers & Weisburd, supra note 75, at 671.

      [137].     Sommers & Bohns, supra note 65, at 1962, 1987.

      [138].     Id.

      [139].     See, e.g., Carpenter v. United States, 585 U.S. 296, 405 (2018) (limiting third party doctrine with respect to historic cell site location data); Ferguson v. City of Charleston, 532 U.S. 67, 102 (2001) (rejecting consent as a basis to share drug test results from pregnant women with police).

      [140].     See supra note 75 (addressing Miranda); notes 133–134 (addressing probation); Jenny Roberts, Effective Plea Bargaining Counsel, 122 Yale L.J. 2650, 2655 (2013) (addressing plea bargaining); Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. (Nov. 20, 2014) https://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/?lp_txn_id=1577470 [https://perma.cc/B2DS-RZ8K] (addressing plea bargaining).

      [141].     See Sommers & Bohns, supra note 65, at 2017.

      [142].     See United States v. Freeman, 479 F.3d 743, 749 (10th Cir. 2007).

      [143].     See Sommers & Weisburd, supra note 75, at 640.

      [144].     Carbado, supra note 14, at 55.

      [145].     See Kathryne M. Young & Christin L. Munsch, Fact and Fiction in Constitutional Criminal Procedure, 66 S.C. L. Rev. 445, 472 (2014); Sommers & Weisburd, supra note 75, at 654.

      [146].     See Jenny Roberts, Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95 Iowa L. Rev. 120, 183–84 (2009).

      [147].     Kate Weisburd, Punitive Surveillance, 108 Va. L. Rev. 147, 160 (2022).

      [148].     Roth, supra note 88, at 444–45.

      [149].     See Kerr, supra note 112, at 16.

      [150].     Daniel J. Solove, Introduction: Privacy Self-Management and the Consent Dilemma, 126 Harv. L. Rev. 1879, 1884–86 (2013).

      [151].     Id.

      [152].     Riley v. California, 573 U.S. 373, 386 (2014).

      [153].     See, e.g., Cyrus Farivar, Google Just Killed Warrants that Give Police Access to Location Data, Forbes (Dec. 14, 2023), https://www.forbes.com/sites/cyrusfarivar/2023/12/14/google-just-killed-geofence-warrants-police-location-data/ [https://perma.cc/S24V-HN3Q].

      [154].     See Kerr, supra note 112, at 15.

      [155].     Carbado, supra note 14, at 88.

      [156].     See generally Jeffrey Bellin, Plea Bargaining’s Uncertainty Problem, 101 Tex. L. Rev. 539 (2023); Thea Johnson, Fictional Pleas, 94 Ind. L.J. 855 (2019); Carissa Byrne Hessick, Punishment Without Trial: Why Plea Bargaining Is a Bad Deal, 2021; Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 Fordham L. Rev. 2117, 2118 (1998). But see Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1910–11 (1992).

      [157].     Roth, supra note 88, at 445.

      [158].     See generally Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989).

      [159].     See generally id.; Kay L. Levine, Jonathan Remy Nash & Robert A. Schapiro, The Unconstitutional Conditions Vacuum in Criminal Procedure, 133 Yale L.J. 1401 (2024).

      [160].     See generally Sullivan, supra note 158; Levine, Nash & Schapiro, supra note 159; Mitchell N. Berman, Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 Geo. L.J. 1, 99 (2001); Josh Bowers, Plea Bargaining’s Baselines, 57 Wm. & Mary L. Rev. 1083, 1089 (2016); Emily Chuah, Can California Pleas Resurrect Its Unconstitutional Conditions Doctrine?, 112 Calif. L. Rev. 209 (2024).

      [161].     Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup. Ct. Rev. 153, 155–56 (2002); see also I.N.S. v. Delgado, 466 U.S. 210, 226 (1984) (Brennan, J., dissenting) (observing that the majority’s conclusion that factory workers were not seized reflected a “studied air of unreality”).

      [162].     Hamburger, supra note 14, at 480; see also Henderson & Krishnamurthi, supra note 14, at 54.

      [163].     Dan Solove, Murky Consent: An Approach to the Fictions of Consent in Privacy Law, 104 B.U. L. Rev. 593, 597 (2024).

      [164].     See Maclin, supra note 14, at 61.

      [165].     Ross, supra note 127, at 2.

      [166].     Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121 (1996); see also George P. Fletcher, Basic Concepts of Legal Thought 109 (1996) (“When individuals consent to undergo medical operations, to engage in sexual intercourse, to open their homes to police searches, or to testify against themselves in court, they convert what otherwise would be an invasion of their person or their rights into a harmless or justified activity.”).

      [167].     See Kathryn E. Miller, The Myth of Autonomy Rights, 43 Cardozo L. Rev. 375, 438 (2021) (observing that “the focus on individual rights obscures systemic defects”).

      [168].     See infra Parts II.B.1–II.B.2.

      [169].     Urvashi Chakravarty, Fictions of Consent 9 (2022).

      [170].     See, e.g., Kathleen Kim, Beyond Coercion, 62 UCLA L. Rev. 1558, 1562 (2015); Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation 67 (1998); Edlie L. Wong, Neither Fugitive nor Free: Atlantic Slavery, Freedom Suits, and the Legal Culture of Travel 104 (2009); Aviam Soifer, Federal Protection, Paternalism, and the Virtually Forgotten Prohibition of Voluntary Peonage, 112 Colum. L. Rev. 1607, 1631–32 (2012).

      [171].     Solove, supra note 163, at 596.

      [172].     See Weisburd, Sentenced to Surveillance, supra note 79, at 739.

      [173].     See Bar-Gill & Friedman, supra note 4, at 1617.

      [174].     For a discussion of abolishing confession, see Samantha Buckingham, Abolishing Juvenile Interrogation, 101 N.C. L. Rev. 1015 (2023); Guha Krishnamurthi, The Case for the Abolition of Criminal Confessions, 75 SMU L. Rev. 15, 47 (2022).

      [175].     See Kate Weisburd, Rights Violations as Punishment, 111 Calif. L. Rev. 1305, 1353 (2023).

      [176].     Alexander, supra note 128.

      [177].     Id.

      [178].     Id.

      [179].     For a detailed accounting of this proposal, see Andrew Manuel Crespo, No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, 90 Fordham L. Rev. 1999 (2022); Jenny Roberts, Crashing the Misdemeanor System, 70 Wash. & Lee L. Rev. 1089 (2013).

      [180].     See, e.g., Jason Mazzone, The Waiver Paradox, 97 Nw. U. L. Rev. 801, 838 (2003) (describing how eliminating plea bargaining would render the criminal legal system inoperable).

      [181].     See Nirej Sekhon, Willing Suspects and Docile Defendants: The Contradictory Role of Consent in Criminal Procedure, 46 Harv. C.R.-C.L. L. Rev. 103, 110 (2011) (observing that “[c]onsent . . . relieves the State of the rigorous procedural protections that restrict its ability to investigate and prosecute”).

      [182].     Tracey L. Meares & Bernard E. Harcourt, Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J. Crim. L. & Criminology 733, 738 (2000).

    [183].    See Slobogin & Weisburd, supra note 11, at 1949–51 (2024) (further exploring a version of this approach).

      [184].     See, e.g., United States v. Schave, 186 F.3d 839, 843 (7th Cir. 1999) (“[A] court will not strike down conditions of [supervised] release, even if they implicate fundamental rights, if such conditions are reasonably related to the ends of rehabilitation and protection of the public from recidivism.”).

      [185].     For a discussion of the legal limits on punishment, see Weisburd, Rights Violations as Punishment, supra note 175.

      [186].     Terry v. Ohio, 392 U.S. 1 (1968).

      [187].     See supra notes 158–159.

      [188].     Thompson v. Spitzer, 90 Cal.App.5th (Cal.App. 4th Dist. 2023) (Orange County DNA program); see also United States v. Scott, 450 F.3d 863, 866 (9th Cir. 2006); State v. Baldon, 829 N.W.2d 785, 802 (Iowa 2013).

      [189].     See, e.g., Ellen A. Wiencek, Waivers of Compassionate Release in Plea Bargains: The Need for Administrative Action to Prevent Unfair Sentencing, U. Chi. L. Rev. Online (Aug. 5, 2021).

      [190].     See, e.g., United States v. Saulsbury, 479 F. Supp. 3d 225 (D.Md. 2020) (holding, and collecting other authority for the proposition, that blanket waiver did not waive the right to file a motion for sentence reduction under the First Step Act); United States v. Chua, 349 F. Supp. 3d 214 (E.D.N.Y. 2018); Price v. U.S. Dep’t of Just. Att’y Off., 865 F.3d 676, 684 (D.C. Cir. 2017).

      [191].     United States v. Osorto, 445 F. Supp. 3d 103, 105 (N.D. Cal. 2020).

      [192].     See Weisburd & Roth, supra note 79.

      [193].     See, e.g., Daniel Harawa, Trials Without Justice, Inquest (Sept. 21, 2021), https://inquest.org/trials-without-justice/ [https://perma.cc/7VRE-CQPG].

      [194].     For further discussion of the costs and benefits of maintaining plea bargaining, see Mazzone, supra note 180.

      [195].     See, e.g., Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781, 1826 (2020); Critical Resistance, Reformist Reforms vs. Abolitionist Steps In Policing (May 2020).

      [196].     See Sommers & Weisburd, supra note 75; Andrew Guthrie Ferguson, The Dialogue Approach to Miranda Warnings and Waiver, 49 Am. Crim. L. Rev. 1437, 1438 (2012); Andrew Guthrie Ferguson & Richard A. Leo, The Miranda App: Metaphor and Machine, 97 B.U. L. Rev. 935, 959 (2017); Devika Singh, Miranda: The Magic Words to Invoke One’s Rights, 53 Am. Crim. L. Rev. Online 37, 39 (2016).

      [197].     Carbado, supra note 14, at 65; Gerard E. Lynch, Why Not a Miranda for Searches?, 5 Ohio St. J. Crim. L. 233, 235-36 (2007).

      [198].     73 Ohio St. 3d 650, 699 (1995).

      [199].     United States v. Knights, 989 F.3d 1281, 1289 (11th Cir. 2021).

      [200].     Sommers & Bohns, supra note 65, at 2015 (2019); see also Illya Lichtenberg, Miranda in Ohio: The Effects of Robinette on the “Voluntary” Waiver of Fourth Amendment Rights, 44 How. L.J. 349, 367 (2001) (finding no decrease in consent searches after a new policy required Ohio state troopers to inform people that they had the right to leave before an officer could conduct a consent search).

      [201].     Carbado, supra note 14, at 64.

      [202].     Id.

      [203].     Harawa, supra note 120, at 1537, 1538; see also Strauss, supra note 14.

      [204].     United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

      [205].     Whren v. United States, 517 U.S. 806 (1996).

      [206].     Harawa, supra note 120, at 1538; see also I. India Thusi, The Pathological Whiteness of Prosecution, 110 Calif. L. Rev. 795, 800 (2022) (observing that in criminal law scholarship, race “become[s] about the marginal status of Black and Brown people rather than the invisible power and punitiveness that Whiteness facilitates”).

      [207].     See State v. Sum, 511 P.3d 92 (Wash. 2022); United States v. Smith, 794 F.3d 681 (7th Cir. 2015); Miles v. United States, 181 A.3d 633, 635 (D.C. 2018); Commonwealth v. Warren, 58 N.E.3d 333, 342 (Mass. 2016).

      [208].     564 U.S. 261 (2011).

      [209].     Id. at 272.

      [210].     See Philip Hamburger, Purchasing Submission: Conditions, Power, and Freedom 192 (2021).

      [211].     412 U.S. 218, 229 (1973).

      [212].     Id. at 248.

      [213].     Floyd v. City of New York, 861 F. Supp. 2d 274, 281 (S.D.N.Y. 2012).

      [214].     Chief Justice Roberts made this point in the majority opinion in Carpenter. See 585 U.S. 296, 319 (2018).

      [215].     See Samson v. California, 547 U.S. 843, 846 (holding that suspicionless searches of people on parole were “reasonable” under the Fourth Amendment).

      [216].     Barry Friedman & Cynthia Benin Stein, Redefining What’s “Reasonable”: The Protections for Policing, 84 Geo. Wash. L. Rev. 281, 297 (2016).

      [217].     Carbado, supra note 14, at 13.

      [218].     Strauss, supra note 14, at 259.

      [219].     Solove, supra note 163, at 6.

      [220].     Alexander, supra note 128.

      [221].     Michelle Alexander, The Newest Jim Crow, N.Y. Times (Nov. 8, 2018).

      [222].     Id.

      [223].     Miller, supra note 167, at 376.

      [224].     Monica C. Bell, The Community in Criminal Justice: Subordination, Consumption, Resistance, and Transformation, 16 Du Bois Rev. 197, 206-07 (2019).

      [225].     For a rich discussion of resistance and race in the context of the Fourth Amendment and policing, see Gardner, supra note 127, at 889.

      [226].     Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 Am. U. L. Rev. 313, 314 (2003).

      [227].     See Jessica W. Berg, Paul S. Appelbaum, Charles W. Lidz & Lisa S. Parker, Informed Consent: Legal Theory And Clinical Practice 15-16 (2d ed. 2001) (consent in health care context); Tom L. Beauchamp & James F. Childress, Principles Of Biomedical Ethics 104 (7th ed. 2013) (same); Restatement (Second) of Contracts § 208 (1981) (defining unconscionable contracts).

      [228].     See supra Part I.D.

      [229].     Id.

      [230].     Josephine Ross, Abolishing Police Consent Searches Through Legislation: Lessons from Scotland, 72 Am. U. L. Rev. 2017, 2054 (2023).

      [231].     D.C. Police Reform Comm’n, Decentering Police to Improve Public Safety: A Report of the DC Police Reform Commission 105 (Apr. 1, 2021).

      [232].     Strauss, supra note 14, at 25.

      [233].     Riley v. California, 573 U.S. 373, 401 (2014).