No need to shout: Bus sweeps and the psychology of coercion

Supreme Court Review

Volumn 2002, Issue , 2002, Pages 153-222

  Nadler, Janice ^a  

^a NONE

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EID: 0346437742     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.2002.3109718     Document Type: Review

References (300)

1. Amicus Brief of Washington Legal Foundation and the Allied Educational Foundation as Amici Curiae in Support of Petitioner, United States v Drayton, 122 S Ct 2105 (2002).
2. For example, one officer testified that he searched more than 3,000 bags over the course of nine months. Florida v Kerwick, 512 So2d 347, 349 (1987) (noting that in the Florida county in question, police officers approach every person on board buses and trains ("that time permits") and ask for consent to search luggage). Id. An appellate court in Ohio noted that police requests for consent to search during routine traffic stops had become standard practice in Ohio. Ohio v Retherferd, 639 NE2d 498, 503 (Ohio 1994).
3. This is typically arranged in advance with the driver or done pursuant to an ongoing agreement. Sometimes, police pay cash to the bus driver in exchange for permitting the search. See Tom Gibb, Bus Stop Drug Searches Getting Mixed Reviews, Pittsburgh Post-Gazette B1 (Apr 19, 2000) (reporting that one officer testified that he had paid the bus driver $50 after a search uncovered illegal drugs).
4. Police make their mission known to passengers either by way of a general announcement or during the course of conversation with individual passengers.
5. 122 S Ct 2105 (2002).
6. 501 US 429 (1991).
7. 412 US 218 (1973).
8. Drayton, 122 S Ct at 2112.
9. Id at 2114 (Souter dissenting).
10. United States v Drayton, 231 F3d 787, 789 (11th Cir 2001).
11. Id at 790.
12. Bostick, 501 US at 437.
13. Id at 445 (Marshall dissenting).
14. See Terry v Ohio, 392 US 1, 19 n 16 (1968); United States v Mendenhall, 446 US 544, 557-58 (1980); Florida v Royer, 460 US 491, 501 (1983); INS v Delgado, 466 US 210, 216 (1984).
15. See Florida v Rodriguez, 469 US 1, 5-6 (1984). In Terry v Ohio, the Court noted that "not all personal intercourse between policemen and citizens involves 'seizures' of persons," and that a seizure has occurred "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." 392 US at 19 n 16. The Court later clarified this standard by declaring that a person has been seized within the meaning of the Fourth Amendment if a reasonable person in the totality of the circumstances would believe "he was not free to leave." United States v Mendenhall, 446 US at 554-55. Though this test was articulated in a plurality opinion, it was later endorsed by a majority in INS v Delgado, 466 US at 216. Subsequently, in Bostick, the Court held that the "free to leave" standard is "inapplicable" to a bus passenger (who does not desire to leave), and that "the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Bostick, 501 US at 436-37.
16. 412 US 218 (1973).
17. Id at 227.
18. See Marcy Strauss, Reconstructing Consent, 92 J Crim L & Criminol 211, 221-22 (2002). Schneckloth listed several potential relevant "subjective" factors that might be considered in determining voluntariness, including the suspect's age, intelligence, and amount of schooling. Even when lower courts do consider an individual suspect's characteristics, they generally still find that the consent was given voluntarily. And where consent was found to be involuntary it was usually because there was egregious police misconduct, such as threats or an extreme show of force. Id at 223.
19. Bostick, 501 US at 438.
20. Though both Bostick and Drayton focused mostly on the question of whether the defendants had been seized, the majority opinions in each case also briefly addressed the question of whether defendant's consent to search was voluntary. The Court applied essentially the same standard to both inquiries. "Where the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts." Drayton, 122 S Ct at 2113.
21. It may be that the Court is still implicitly engaging in a balancing of "the legitimate need for such searches and the equally important requirement of assuring the absence of coercion" when it decides consent search issues in cases like Bostick and Drayton. Schneckloth, 412 US at 227. Indeed, some commentators argue that Schneckloth used the term "voluntariness" as a term of art - that is, as a "placeholder for an analysis of the competing interests of order and liberty." Tracey L. Meares and Bernard E. Harcourt, Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J Crim L & Criminol 733, 738 (2000). While this may be true, the Court certainly speaks in its opinions as if it is engaging in a completely different kind of analysis when it decides consent search issues. If it is true that the Court is implicitly using an analysis that is at odds with its announced rationale, we must examine the possible implications of such a discrepancy. As I argue later (in Section IV), this incongruity in Fourth Amendment consent jurisprudence is both undesirable and unnecessary.
22. It may be that the Court is still implicitly engaging in a balancing of "the legitimate need for such searches and the equally important requirement of assuring the absence of coercion" when it decides consent search issues in cases like Bostick and Drayton. Schneckloth, 412 US at 227. Indeed, some commentators argue that Schneckloth used the term "voluntariness" as a term of art - that is, as a "placeholder for an analysis of the competing interests of order and liberty." Tracey L. Meares and Bernard E. Harcourt, Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J Crim L & Criminol 733, 738 (2000). While this may be true, the Court certainly speaks in its opinions as if it is engaging in a completely different kind of analysis when it decides consent search issues. If it is true that the Court is implicitly using an analysis that is at odds with its announced rationale, we must examine the possible implications of such a discrepancy. As I argue later (in Section IV), this incongruity in Fourth Amendment consent jurisprudence is both undesirable and unnecessary.
23. A few of these findings were brought to the attention of the Court in the Respondents' brief. Brief of Respondents at 42 n 4.
24. See Indianapolis v Edmond, 531 US 32 (2000) ("A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.").
25. See Civil Rights on a Greyhound, New York Times A22 (June 18, 2002); Jan Crawford Greenberg, Justices Strengthen Police Search Power, Chicago Tribune 1 (June 18, 2002); Patty Reinert, Court: Warnings Unnecessary in Searches of Buses and Trains, Houston Chronicle A10 (June 18, 2002); Lyle Denniston, Justices Broaden the Right to Search, Boston Globe A1 (June 18, 2002).
26. See Civil Rights on a Greyhound, New York Times A22 (June 18, 2002); Jan Crawford Greenberg, Justices Strengthen Police Search Power, Chicago Tribune 1 (June 18, 2002); Patty Reinert, Court: Warnings Unnecessary in Searches of Buses and Trains, Houston Chronicle A10 (June 18, 2002); Lyle Denniston, Justices Broaden the Right to Search, Boston Globe A1 (June 18, 2002).
27. See Civil Rights on a Greyhound, New York Times A22 (June 18, 2002); Jan Crawford Greenberg, Justices Strengthen Police Search Power, Chicago Tribune 1 (June 18, 2002); Patty Reinert, Court: Warnings Unnecessary in Searches of Buses and Trains, Houston Chronicle A10 (June 18, 2002); Lyle Denniston, Justices Broaden the Right to Search, Boston Globe A1 (June 18, 2002).
28. See Civil Rights on a Greyhound, New York Times A22 (June 18, 2002); Jan Crawford Greenberg, Justices Strengthen Police Search Power, Chicago Tribune 1 (June 18, 2002); Patty Reinert, Court: Warnings Unnecessary in Searches of Buses and Trains, Houston Chronicle A10 (June 18, 2002); Lyle Denniston, Justices Broaden the Right to Search, Boston Globe A1 (June 18, 2002).
29. 530 US 428 (2000) (holding that Miranda's warning regime arises from constitutional requirements).
30. The question of whether a bus passenger feels free to refuse police requests is arguably itself an empirical question. That is, the extent to which a person feels free to refuse is a psychological state that is, at least in principle, measurable in the same way that questions about the extent to which someone feels hungry or feels happy or feels anxious are measurable. The Court's test (whether a reasonable person would feel free to refuse police requests) thus turns only on how a reasonable person would react psychologically under the totality of the circumstances. If a reasonable person would not feel free to refuse, then that person has been seized (or has given consent involuntarily). But what does it mean to feel free to refuse? Interestingly, the language of the Bostick opinion provides some guidance: "Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse." Bostick, 501 US at 438. Thus, if a reasonable person feels constrained to cooperate with police because of a strong internal sense of civic duty, that person has not been subjected to an involuntary search because they are not complying with a request that they would prefer to refuse. But if a reasonable person feels constrained to cooperate with police because the situation makes them feel intimidated, that person's consent indeed has been vitiated because they have complied with a request that they would prefer to refuse.
31. The Court has emphasized that this standard presumes a "reasonable innocent person." Florida v Bostick, 501 US at 437-38. This standard thus rules out the argument that the search was coercive because coercion is the only explanation for why a person carrying enough illegal drugs to send them to prison for decades would voluntarily consent to a search. The argument is that no rational (guilty) person in that position would voluntarily consent to a search, and therefore the consent must have been coerced. Of course, there are a number of explanations, other than coercion, for why a person carrying large amounts of unlawful contraband would consent to a search that is certain to result in devastating personal consequences. These include convincing oneself (for the moment) that the contraband is so well hidden that police won't find it, hoping that the grant of permission to search will signal to police that they need not bother doing so, or reasoning that they have already been caught and refusal will only make things worse. For the purpose of the analysis in this essay, I follow the Court's standard and assume that reasonable person means reasonable innocent person.
32. Bostick, 501 US at 438; Drayton, 122 S Ct at 2113. I note that the term "voluntary" here appears to mean whether a reasonable person would feel that he or she had a choice. This term therefore raises a question about a psychological state (how a reasonable person would feel), rather than a philosophical question about free will.
33. Bostick, 501 US at 438; Drayton, 122 S Ct at 2113. I note that the term "voluntary" here appears to mean whether a reasonable person would feel that he or she had a choice. This term therefore raises a question about a psychological state (how a reasonable person would feel), rather than a philosophical question about free will.
34. See, for example, Drayton, 122 S Ct at 2112 ("Indeed, because many fellow passengers are present to witness officers' conduct, a reasonable person may feel even more secure in his or her decision not to cooperate with police on a bus than in other circumstances."); id at 2112 ("Officers are often required to wear uniforms and in many circumstances this is cause for assurance, not discomfort. The same can be said for wearing sidearms. . . . The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon."); id at 2113 ("[B]us passengers answer officers' questions and otherwise cooperate not because of coercion but because the passengers know that their participation enhances their own safety and the safety of those around them."); id at 2113 ("[W]hen Lang requested to search Brown and Drayton's persons, he asked first if they objected, thus indicating to a reasonable person that he or she was free to refuse."). Drayton is by no means the only case in which members of the Court used their own thoughts and feelings that they imagine they would experience in a particular set of circumstances to determine reasonableness. In oral argument in Bond v United States, 529 US 334 (2000), which considered the question of whether an officer's manual squeezing of a bus passenger's luggage amounts to a search, one Justice commented on his own personal, individual expectation of privacy regarding his own luggage: "QUESTION: . . . I fly quite a lot up to Boston and so forth, and I put bags all the time in the upper thing, and people are always moving them around. They push them, they lift them up, they move them to other places, and if they're soft they would feel just what was on the inside. Now, that happens all the time, and I do it myself, frankly. I move somebody else's bag and push mine in, and I imagine the interstate bus here was no different. So if that happens all the time, how can I say that your client has some kind of special expectation, since in my own experience, people are always handling this soft luggage?" Oral argument transcript at 6-7 (Feb 29, 2000).
35. See Roderick Chisholm, Theory of Knowledge 36 (Prentice-Hall, 2d ed 1977); Michael Williams, Problems of Knowledge: A Critical Introduction to Epistemology 2 (Oxford, 2001).
36. See Roderick Chisholm, Theory of Knowledge 36 (Prentice-Hall, 2d ed 1977); Michael Williams, Problems of Knowledge: A Critical Introduction to Epistemology 2 (Oxford, 2001).
37. See, for example, Daniel T. Gilbert and Patrick S. Malone, The Correspondence Bias, 117 Psychol Bulletin 21 (1995).
38. Edward E. Jones, Interpersonal Perception 122 (Freeman, 1990).
39. Edward E. Jones amd V. A. Harris, The Attribution of Attitudes, 3 J Exp Soc Psychol 1 (1967).
40. Gilbert and Malone, 117 Psychol Bulletin at 25 (cited in note 31).
41. Lee D. Ross, Teresa M. Amabile, and Julia L. Steinmetz, Social Roles, Social Control, and Biases in Social-Perception Processes, 35 J Personality & Soc Psychol 485 (1977).
42. Daniel G. Lassiter et al, Videotaped Confessions: Is Guilt in the Eye of the Camera? in Mark P. Zanna, ed, 33 Advances in Experimental Social Psychology 189 (Academic, 2001).
43. Robert J. Wolosin, Steven J. Sherman, and Arnie Cann, Predictions of Own and Other's Conformity, 43 J Personality 357 (1975).
44. Id.
45. Id at 374.
46. See Gilbert and Malone, 117 Psychol Bulletin at 27 (cited in note 31) (compliance rates with essay-writing request over "decades of research" are "exceptionally high").
47. Steven J. Sherman, On the Self-Erasing Nature of Errors of Prediction, 39 J Personality & Soc Psychol 211 (1980) (three-quarters of those asked to forecast their own compliance predicted they would refuse).
48. Julie A. Woodzicka and Marianne LaFrance, Real versus Imagined Gender Harassment, 57 J Soc Issues 15 (2001).
49. See United States v Mendenhall, 446 US 544, 557-58 (1980) (no seizure where federal drug agents approached a woman walking through an airport concourse and asked to see her ticket and identification); INS v Delgado, 466 US 210, 216 (1984) (no seizure where immigration agents questioned factory workers while other agents were positioned at building exits); Florida v Rodriguez, 469 US 1 (1984) (no seizure in an airport concourse where police approached and questioned a man who briefly attempted to run away); Michigan v Chesternut, 486 US 567 (1988) (no seizure where man fled at sight of police and police drove alongside him for a short distance); California v Hodari D., 499 US 621 (1991) (no seizure where youth fled at sight of police and police gave chase). One exception in this line of no-seizure findings was Florida v Royer, 460 US 491, 501 (1983), in which the Court held, in a plurality opinion, that a seizure occurred when police approached and questioned a man in an airport and subsequently held his ticket and identification. In a fractured set of concurring and dissenting opinions, there was no agreement among the Justices on precisely when the seizure began, or whether there was Terry-level suspicion to justify it. In another seizure case, Florida v Bostick, the Court remanded the seizure question back to the lower courts. However, as I explain in Section IV.B., Bostick's implicit message was that there was no seizure.
50. See Schneckloth v Bustamonte, 412 US 218 (1973); Ohio v Robinette, 519 US 33 (1996).
51. See Robert B. Cialdini and Melanie R. Trost, Social Influence: Social Norms, Conformity and Compliance, in Daniel T. Gilbert, Susan T. Fiske, and Gardner Lindzey, eds, 2 The Handbook of Social Psychology 151, 168 (McGraw-Hill, 4th ed 1998).
52. Bumper v North Carolina, 391 US 543, 548-49 (1968).
53. See Cialdini and Trost, 2 The Handbook of Social Psychology at 168 (cited in note 45).
54. Bostick, 501 US at 438.
55. See Cialdini and Trost, 2 The Handbook of Social Psychology at 170 (cited in note 45).
56. See, for example, Stanley Milgram, Obedience to Authority 104 (Harper & Row, 1983).
57. See Cialdini and Trost, 2 The Handbook of Social Psychology at 170 (cited in note 45).
58. Id.
59. H. Clayton Foushee, Dyads and Triads at 35,000 Feet: Factors Affecting Group Process and Aircrew Performance, 39 Am Psychologist 885 (1984); Robert B. Cialdini, Influence: Science and Practice 9-10 (Allyn & Bacon, 4th ed 2001).
60. H. Clayton Foushee, Dyads and Triads at 35,000 Feet: Factors Affecting Group Process and Aircrew Performance, 39 Am Psychologist 885 (1984); Robert B. Cialdini, Influence: Science and Practice 9-10 (Allyn & Bacon, 4th ed 2001).
61. See Eric S. Knowles and Christopher A. Condon, Why People Say "Yes": A Dual-Process Theory of Acquiescence, 77 J Personality & Soc Psychol 379, 385 (1999) (presenting evidence for a two-stage model of belief process, in which a request is first tacitly and automatically accepted, and then later reconsidered; because the reconsideration stage can require effort, it is easily disrupted, leading to acquiescence); Marco Iacoboni et al, Watching People Interact: The Neural Bases of Understanding Social Relations, unpublished manuscript (2002) (observing a person in authority giving an order to another person does not activate brain regions associated with conscious, effortful, cognitive tasks, but does activate brain regions associated with automatic, unconscious processes); Edward E. Jones, Interpersonal Perception 124 (Freeman, 1990) (remarking that social roles, such as authority-subordinate roles, are so ingrained that we comply with authorities' requests automatically and mindlessly).
62. See Eric S. Knowles and Christopher A. Condon, Why People Say "Yes": A Dual-Process Theory of Acquiescence, 77 J Personality & Soc Psychol 379, 385 (1999) (presenting evidence for a two-stage model of belief process, in which a request is first tacitly and automatically accepted, and then later reconsidered; because the reconsideration stage can require effort, it is easily disrupted, leading to acquiescence); Marco Iacoboni et al, Watching People Interact: The Neural Bases of Understanding Social Relations, unpublished manuscript (2002) (observing a person in authority giving an order to another person does not activate brain regions associated with conscious, effortful, cognitive tasks, but does activate brain regions associated with automatic, unconscious processes); Edward E. Jones, Interpersonal Perception 124 (Freeman, 1990) (remarking that social roles, such as authority-subordinate roles, are so ingrained that we comply with authorities' requests automatically and mindlessly).
63. See Eric S. Knowles and Christopher A. Condon, Why People Say "Yes": A Dual-Process Theory of Acquiescence, 77 J Personality & Soc Psychol 379, 385 (1999) (presenting evidence for a two-stage model of belief process, in which a request is first tacitly and automatically accepted, and then later reconsidered; because the reconsideration stage can require effort, it is easily disrupted, leading to acquiescence); Marco Iacoboni et al, Watching People Interact: The Neural Bases of Understanding Social Relations, unpublished manuscript (2002) (observing a person in authority giving an order to another person does not activate brain regions associated with conscious, effortful, cognitive tasks, but does activate brain regions associated with automatic, unconscious processes); Edward E. Jones, Interpersonal Perception 124 (Freeman, 1990) (remarking that social roles, such as authority-subordinate roles, are so ingrained that we comply with authorities' requests automatically and mindlessly).
64. See Cialdini, Influence: Science and Practice at 9 (cited in note 53).
65. See Jones, 122 Interpersonal Perception at 124 (cited in note 32).
66. See Gerd Gigerenzer and Reinhard Selton, Rethinking Rationality, in Gerd Gigerenzer, Bounded Rationality 1, 7 (MIT, 2001). For example, when a player runs to catch a ball, she does not calculate the distance between her current position and where she expects the ball to land, then run that distance, and then wait for the ball. Instead, she catches the ball by running just fast enough to maintain a constant angle between her eye and the ball.
67. See Gerd Gigerenzer and Reinhard Selton, Rethinking Rationality, in Gerd Gigerenzer, Bounded Rationality 1, 7 (MIT, 2001). For example, when a player runs to catch a ball, she does not calculate the distance between her current position and where she expects the ball to land, then run that distance, and then wait for the ball. Instead, she catches the ball by running just fast enough to maintain a constant angle between her eye and the ball.
68. Drayton, 122 S Ct at 2112.
69. "[T]he customary course of events was stopped flat. The bus was going nowhere, and with one officer in the driver's seat, it was reasonable to suppose no passenger would tend to his own business until the officers were ready to let him." Drayton, 122 S Ct at 2117 (Souter dissenting). There was also evidence in Drayton that, just prior to the officers boarding the bus, the driver had collected all passengers' tickets and brought them inside the terminal.
70. "[T]here was no reason for any passenger to believe that the driver would return and the trip resume until the police were satisfied. The scene was set and an atmosphere of obligatory participation was established . . . ." Drayton, 122 S Ct at 2116 (Souter dissenting).
71. See Saul M. Kassin and Katherine L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7 Psychol Sci 125 (1996). For discussions of actual false confession cases, see Hugo Bedau and M. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan L Rev 21 (1987); Richard A. Leo and Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J Crim L & Criminol 429 (1998).
72. See Saul M. Kassin and Katherine L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7 Psychol Sci 125 (1996). For discussions of actual false confession cases, see Hugo Bedau and M. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan L Rev 21 (1987); Richard A. Leo and Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J Crim L & Criminol 429 (1998).
73. See Saul M. Kassin and Katherine L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7 Psychol Sci 125 (1996). For discussions of actual false confession cases, see Hugo Bedau and M. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan L Rev 21 (1987); Richard A. Leo and Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J Crim L & Criminol 429 (1998).
74. Not all false confessions involve coercion. A "voluntary" false confession is defined as one in which a person confesses in the absence of external pressure to do so. Kassin and Kiechel, 7 Psychol Sci at 125 (cited in note 61).
75. See Kassin and Kiechel, 7 Psychol Sci at 127 (cited in note 61).
76. The confession rate in the false-evidence (witness) condition was 89% when the task had required that subjects type slowly, and 100% when the task had required that subjects type quickly. Id at 127.
77. The confession rate in the no-false-evidence (no witness) condition was 35% when the task had required that subjects type slowly, and 65% when the task had required that subjects type quickly. Id at 127.
78. Drayton, 122 S Ct at 2113.
79. Id at 2114.
80. Cialdini and Trost, 2 The Handbook of Social Psychology at 155 (cited in note 45).
81. See Robert Cialdini, Carl Kallgren, and Raymond Reno, A Focus Theory of Normative Conduct: A Theoretical Refinement and Reevaluation of the Role of Norms in Human Behavior, 24 Advances in Exp Soc Psychol 201, 203 (1991).
82. Stanley Milgram, Leonard Bickman, and Lawrence Berkowitz, Note on the Drawing Power of Crowds of Different Size, 31 J Personality & Soc Psych 79 (1969).
83. Peter H. Reingen, Test of a List Procedure for Inducing Compliance with a Request to Donate Money, 9 J Appl Psychol 110 (1982).
84. There is evidence that news stories about suicide trigger additional suicides. See David P. Phillips and Laura L. Carstensen, Clustering of Teenage Suicides After Television Stories About Suicide, 315 New Engl J Med 685 (1986); David P. Phillips, The Influence of Suggestion on Suicide: Substantive and Theoretical Implications of the Werther Effect, 39 Am Soc Rev 340 (1979).
85. There is evidence that news stories about suicide trigger additional suicides. See David P. Phillips and Laura L. Carstensen, Clustering of Teenage Suicides After Television Stories About Suicide, 315 New Engl J Med 685 (1986); David P. Phillips, The Influence of Suggestion on Suicide: Substantive and Theoretical Implications of the Werther Effect, 39 Am Soc Rev 340 (1979).
86. Cialdini and Trost, 2 The Handbook of Social Psychology at 172 (cited in note 45).
87. See Ap Dijksterhuis and John A. Bargh, The Perception-Behavior Expressway: Automatic Effects of Social Perception on Social Behavior, in Mark P. Zanna, ed, Advances in Experimental Social Psychology 1 (Academic, 2001).
88. Id. This direct relation between perception and behavior is supported by neurophysiological evidence, which shows that thinking about a word, gesture, or complex action such as running or weightlifting leads to activation of the same neural pathways in the brain as actually uttering the word, making the gesture, or performing the action. See T. Paus, M. Petrides, A. C. Evans, and E. Meyer, Role of Human Anterior Cingaluate Cortex in the Control of Oculomotor, Manual and Speech Responses, 70 J Neurophysiol 453 (1993); M. Jeannerod, The Representing Brain: Neural Correlates of Motor Intention and Imagery, 17 Behavioral & Brain Sci 187 (1994).
89. Id. This direct relation between perception and behavior is supported by neurophysiological evidence, which shows that thinking about a word, gesture, or complex action such as running or weightlifting leads to activation of the same neural pathways in the brain as actually uttering the word, making the gesture, or performing the action. See T. Paus, M. Petrides, A. C. Evans, and E. Meyer, Role of Human Anterior Cingaluate Cortex in the Control of Oculomotor, Manual and Speech Responses, 70 J Neurophysiol 453 (1993); M. Jeannerod, The Representing Brain: Neural Correlates of Motor Intention and Imagery, 17 Behavioral & Brain Sci 187 (1994).
90. See, for example, Robert R. Provine, Yawning as a Stereotypical Action Pattern and Releasing Stimulus, 71 Ethology 109 (1986).
91. Facial expression imitation can be observed in babies as young as one month old. See, for example, Andrew N. Meltzoff and Keith M. Moore, Imitation of Facial and Manual Gestures by Human Neonates, 198 Science 75 (1977).
92. See Frank Bernieri, Coordinated Movement and Rapport in Teacher-Student Interactions, 12 J Nonverbal Behav 120 (1988).
93. Roland Neumann and Fritz Strack, "Mood Contagion": The Automatic Transfer of Mood Between Persons, 79 J Personality & Soc Psychol 211 (2000).
94. Dijksterhuis and Bargh, 33 Advances in Experimental Social Psychology at 1 (cited in note 74).
95. Ap Dijksterhuis and Ad van Knippenberg, The Relation Between Perception and Behavior, or How to Win a Game of Trivial Pursuit, 74 J Personality & Soc Psychol 865 (1998).
96. John A. Bargh, Mark Chen, and L. Burrows, Automaticity of Social Behavior: Direct Effects of Trait Construct and Stereotype Activation on Action 71 J Personality & Soc Psychol 230 (1996).
97. Henk Aarts and Ap Dijksterhuis, Category Activation Effects in Judgment and Behaviour: The Moderating Role of Perceived Comparability, 41 Brit J Soc Psychol 123 (2002).
98. Solomon E. Asch, Opinions and Social Pressure, 193 Scientific Am 31 (1955).
99. These other "subjects" were actually confederates who had been instructed in advance to answer incorrectly.
100. Solomon E. Asch, Studies of Independence and Conformity: I. A Minority of One Against a Unanimous Majority, 70 Psychol Monogr 1 (1956).
101. Morton Deutsch and Harold B. Gerard, A Study of Normative and Informational Social Influences upon Individual Judgment, 51 J Abnormal & Soc Psychol 629, 634 (1955).
102. Wolosin, Sherman, and Cann, 43 J Personality at 372-76 (cited in note 37).
103. Cialdini, Influence: Science and Practice at 130 (cited in note 53).
104. Id.
105. Over 200 children died. The children were made to swallow the poison by adults. See Marc Galanter, Cults: Faith, Healing, and Coercion at 114 (Oxford, 2d ed 1999).
106. Cialdini, Influence: Science and Practice at 132 (cited in note 53); see also Galanter, Cults at 114 (cited in note 91) ("The amount of force exerted to complete the mass suicide varied among the members. For most, no coercion was necessary; only a small minority acted under overt threats from Jones's henchmen, who were brandishing firearms.").
107. Cialdini, Influence: Science and Practice at 132 (cited in note 53); see also Galanter, Cults at 114 (cited in note 91) ("The amount of force exerted to complete the mass suicide varied among the members. For most, no coercion was necessary; only a small minority acted under overt threats from Jones's henchmen, who were brandishing firearms.").
108. Id at 132-33.
109. Id.
110. As Drayton's and Brown's attorneys point out, "the Tallahassee Police Department's bus interdictions are routinized, scripted events." See Drayton, Respondent's Brief at 26. The police appeared to have made a conscious decision to question passengers on the bus, where they could expect (based on hundreds of prior bus sweeps) each passenger to observe other passengers' compliance with requests for information and for consent to search. Drayton, Brown, and all other passengers on the bus were required to exit the bus during the stopover in Tallahassee. The police began watching Drayton and Brown inside the bus terminal at noon, but waited until they had reboarded the bus some 40 minutes later to question them. See Drayton, Joint Appendix at 108, 139. Instead of questioning Drayton and Brown privately in the relatively open confines of the terminal, the police questioned them in the close confines of a cramped bus seat, in an atmosphere where each passenger sees and hears that others are cooperating with police.
111. As Drayton's and Brown's attorneys point out, "the Tallahassee Police Department's bus interdictions are routinized, scripted events." See Drayton, Respondent's Brief at 26. The police appeared to have made a conscious decision to question passengers on the bus, where they could expect (based on hundreds of prior bus sweeps) each passenger to observe other passengers' compliance with requests for information and for consent to search. Drayton, Brown, and all other passengers on the bus were required to exit the bus during the stopover in Tallahassee. The police began watching Drayton and Brown inside the bus terminal at noon, but waited until they had reboarded the bus some 40 minutes later to question them. See Drayton, Joint Appendix at 108, 139. Instead of questioning Drayton and Brown privately in the relatively open confines of the terminal, the police questioned them in the close confines of a cramped bus seat, in an atmosphere where each passenger sees and hears that others are cooperating with police.
112. Pragmatics is the study of how context influences how we interpret the meaning of language See Victoria Fromkin and Robert Rodman, An Introduction to Language 189 (Holt, Rinehart & Winston, 3d ed 1983); Steven Pinker, The Language Instinct 480 (Harper Perennial, 1994).
113. Pragmatics is the study of how context influences how we interpret the meaning of language See Victoria Fromkin and Robert Rodman, An Introduction to Language 189 (Holt, Rinehart & Winston, 3d ed 1983); Steven Pinker, The Language Instinct 480 (Harper Perennial, 1994).
114. Herbert H. Clark and Michael F. Schober, Asking Questions and Influencing Answers, in J. M. Tanur, ed, Questions About Questions 15, 15 (Russell Sage Foundation, 1992).
115. An indirect request ("Could you tell me what time it is?") is a polite way of uttering a command ("Tell me the time."). See Herbert H. Clark and Eve V. Clark, Psychology and Language 244-45, 563 (Harcourt Brace Jovanovich, 1977). The way in which an utterance is interpreted can vary drastically depending on the context. For example, if I say to a friend, "Would you like to go to the movies?" this generally will be interpreted as a question. But if I say to my son, "Would you like to wash the dishes?" this is actually a command, even though phrased in the form of a question. See Peter Meijes Tiersma, The Language of Offer and Acceptance: Speech Acts and the Question of Intent, 74 Cal L Rev 189, 194 (1986).
116. An indirect request ("Could you tell me what time it is?") is a polite way of uttering a command ("Tell me the time."). See Herbert H. Clark and Eve V. Clark, Psychology and Language 244-45, 563 (Harcourt Brace Jovanovich, 1977). The way in which an utterance is interpreted can vary drastically depending on the context. For example, if I say to a friend, "Would you like to go to the movies?" this generally will be interpreted as a question. But if I say to my son, "Would you like to wash the dishes?" this is actually a command, even though phrased in the form of a question. See Peter Meijes Tiersma, The Language of Offer and Acceptance: Speech Acts and the Question of Intent, 74 Cal L Rev 189, 194 (1986).
117. See Tiersma, 74 Cal L Rev at 194 (cited in note 98) ("[a] familiar convention allows one to make a command more polite by superficially offering a choice, as in 'How would you like to do me a favor and open the door?'").
118. See, for example, Johnny I. Murdock, James J. Bradac, and John W. Bowers, Effects of Power on the Perception of Explicit and Implicit Threats, Promises, and Thromises: A Rule-Governed Perspective, 48 Western J Speech Comm 344, 356 (1984).
119. Judith A. Becker, Herbert Kimmel, and Michael J. Bevill, The Interactive Effects of Request Form and Speaker Status on Judgments of Requests, 18 J Psycholinguistic Res 521, 529 (1989).
120. Thomas Holtgraves, Communication in Context: Effects of Speaker Status on the Comprehension of Indirect Requests, 20 J Exp Psychol: Learning, Memory, & Cognition 1205 (1994).
121. In communication, maintaining face means preserving a person's positive personal and social identity (positive face) as well as maintaining freedom from constraint and avoiding violations of autonomy (negative face). See Penelope Brown and Stephen C. Levinson, Politeness: Some Universals in Language Usage 62 (Cambridge, 1987). In conversation, people try to maintain the face of the person to whom they are speaking (as well as their own). Id.
122. Jennifer L. Vollbrecht, Michael E. Roloff, and Gaylen D. Paulson, Coercive Potential and Face Threatening Sensitivity: The Effects of Authority and Directives in Social Confrontations, 8 Intl J Conflict Mgmt 235, 236 (1997).
123. Here, the rule violation is the carrying of illegal contraband. The authorities are police officers. So the rule violation is also a formal violation of the law.
124. This point was understood by Justice Souter, who, in his dissent in Drayton, wrote that "a police officer who is certain to get his way has no need to shout." Drayton, 122 S Ct at 2116-17.
125. See Peter Tiersma, The Judge as Linguist, 27 Loyola LA L Rev 269, 282 (1993) (arguing that the power relationship between police and citizen suggests that when police make a request that they could apparently compel, the request will be viewed as a command).
126. Vollbrecht, Roloff, and Gaylen, 8 Intl J Conflict Mgmt at 244 (cited in note 104).
127. Id.
128. The Court was informed of this empirical evidence in the Brief for the Respondents. Brief of Respondents at 42 n 4.
129. Official Transcript of Oral Argument, Drayton at 46. Specifically, Justice Scalia asked, "Why . . . is it that the most immediate expression of the police officers does not counteract whatever other indications of compulsion might exist under the circumstances? . . . [T]here's a policeman in the front of the bus. Who cares? He . . . has made it very clear that he's asking for your permission."
130. Chris Segrin, The Influence of Nonverbal Behaviors in Compliance-Gaining Processes, in Laura K. Guerrero, Joseph A. DeVito, and Michael L. Hecht, eds, The Nonverbal Communication Reader: Classic and Contemporary Readings (Waveland, 1990).
131. Robert A. Baron and Paul A. Bell, Physical Distance and Helping: Some Unexpected Benefits of "Crowding In" on Others, 6 J Appl Soc Psychol 95 (1976).
132. A questionnaire administered after the experiment revealed that students approached at a distance of 12-18 inches felt more tense and uncomfortable than students approached at a distance of 36-48 inches. Id.
133. Robert C. Ernest and Ralph E. Cooper, "Hey Mister, Do You Have Any Change?" Two Real World Studies of Proxemic Effects on Compliance with a Mundane Request, 1 Personality & Soc Psychol Bulletin 158 (1974).
134. David B. Buller, Communication Apprehension and Reactions to Proxemic Violations, 11 J Nonverbal Behav 13 (1987).
135. Leslie A. Hayduk, Personal Space: Where We Now Stand, 94 Psychol Bulletin 293, 293 (1983).
136. Id at 298.
137. Id.
138. Id at 319.
139. Nancy J. Felipe and Robert Sommer, Invasions of Personal Space, 14 Soc Problems 206 (1966).
140. Robert Sommer, Personal Space: The Behavioral Basis of Design at 35 (Prentice-Hall, 1969).
141. Id.
142. Peter A. Anderson and Linda L. Bowman, Positions on Power: Nonverbal Influence in Organizational Communication, in Laura K. Guerrero, Joseph A. DeVito, and Michael L. Hecht, eds, The Nonverbal Communication Reader: Classic and Contemporary Readings (Waveland, 1990).
143. Id.
144. Frederick E. Inbau and John E. Reid, Criminal Interrogation and Confessions 80 (Aspen, 4th ed 2001).
145. Id at 339-40.
146. Hayduk, 94 Psychol Bulletin at 318 (cited in note 117). Note that, depending on one's race, socioeconomic status, or prior personal contact with the police, some citizens might be more likely than others to expect a hostile encounter. Demographic differences in police-citizen interactions become relevant in the context of intercity bus travel because passengers are disproportionately poor, nonwhite, and less educated. See note 194.
147. Robert Hanley, An Anti-Drinking Campaign and How It Flopped, NY Times B1 (Sept 28, 1994). Cited in Strauss, 92 J Crim L & Criminol at 266 n 195 (cited in note 18).
148. Robert Hanley, An Anti-Drinking Campaign and How It Flopped, NY Times B1 (Sept 28, 1994). Cited in Strauss, 92 J Crim L & Criminol at 266 n 195 (cited in note 18).
149. Of course, any given face-to-face request may be more effective than a corresponding mailed request simply because mailed requests are more easily discarded or ignored. But the low compliance rate in this example is nonetheless illustrative.
150. See, for example, Dan Ariely and Dan Zakay, A Timely Account of the Role of Duration in Decision Making, 108 Acta Psychologica 187, 197 (2001); Irving L. Janis, Stress, Attitude, and Decisions (Praeger, 1982).
151. See, for example, Dan Ariely and Dan Zakay, A Timely Account of the Role of Duration in Decision Making, 108 Acta Psychologica 187, 197 (2001); Irving L. Janis, Stress, Attitude, and Decisions (Praeger, 1982).
152. See Irving L. Janis, Decision Making Under Stress, in L. Goldberger and S. Breznitz, eds, Handbook of Stress (Free Press, 1982); Jay J. J. Christiansen-Szalanski, A Further Examination of the Selection of Problem-Solving Strategies: The Effects of Deadlines and Analytic Aptitudes, 25 Organizational Behav & Human Decision Processes 107 (1980).
153. See Irving L. Janis, Decision Making Under Stress, in L. Goldberger and S. Breznitz, eds, Handbook of Stress (Free Press, 1982); Jay J. J. Christiansen-Szalanski, A Further Examination of the Selection of Problem-Solving Strategies: The Effects of Deadlines and Analytic Aptitudes, 25 Organizational Behav & Human Decision Processes 107 (1980).
154. See Edward M. Bowden, Accessing Relevant Information During Problem Solving: Time Constraints on Search in the Problem Space, 13 Memory & Cognition 280, 284 (1985).
155. See Ariely and Zakay, 108 Acta Psychologica at 197 (cited in note 131).
156. See Chi-yue Chiu, Michael W. Morris, Ying-yi Hong, and Tanya Menon, Motivated Cultural Cognition: The Impact of Implicit Cultural Theories on Dispositional Attribution Varies as a Function of Need for Closure, 78 J Personality & Soc Psychol 247, 255-56 (2000).
157. See Arie W. Kruglanski and Ofra Mayseless, Contextual Effects in Hypothesis Testing: The Rule of Competing Alternatives and Epistemic Motivations, 6 Soc Cognition 1, 12-17 (1988).
158. Id.
159. See, for example, John W. Payne, James R. Bettman, and Mary Frances Luce, When Time Is Money: Decision Behavior Under Opportunity-Cost Time Pressure, 66 Organizational Behav & Human Decision Processes 131 (1996); Jose H. Kerstholt, The Effect of Time Pressure on Decision- Making Behaviour in a Dynamic Task Environment, 86 Acta Psychologica 89 (1994); Edward M. Bowden, Accessing Relevant Information During Problem Solving: Time Constraints on Search in the Problem Space, 13 Memory & Cognition 280 (1985); Dan Zakay and Stuart Wooler, Time Pressure, Training and Decision Effectiveness, 27 Ergonomics 273 (1984).
160. See, for example, John W. Payne, James R. Bettman, and Mary Frances Luce, When Time Is Money: Decision Behavior Under Opportunity-Cost Time Pressure, 66 Organizational Behav & Human Decision Processes 131 (1996); Jose H. Kerstholt, The Effect of Time Pressure on Decision-Making Behaviour in a Dynamic Task Environment, 86 Acta Psychologica 89 (1994); Edward M. Bowden, Accessing Relevant Information During Problem Solving: Time Constraints on Search in the Problem Space, 13 Memory & Cognition 280 (1985); Dan Zakay and Stuart Wooler, Time Pressure, Training and Decision Effectiveness, 27 Ergonomics 273 (1984).
161. See, for example, John W. Payne, James R. Bettman, and Mary Frances Luce, When Time Is Money: Decision Behavior Under Opportunity-Cost Time Pressure, 66 Organizational Behav & Human Decision Processes 131 (1996); Jose H. Kerstholt, The Effect of Time Pressure on Decision- Making Behaviour in a Dynamic Task Environment, 86 Acta Psychologica 89 (1994); Edward M. Bowden, Accessing Relevant Information During Problem Solving: Time Constraints on Search in the Problem Space, 13 Memory & Cognition 280 (1985); Dan Zakay and Stuart Wooler, Time Pressure, Training and Decision Effectiveness, 27 Ergonomics 273 (1984).
162. See, for example, John W. Payne, James R. Bettman, and Mary Frances Luce, When Time Is Money: Decision Behavior Under Opportunity-Cost Time Pressure, 66 Organizational Behav & Human Decision Processes 131 (1996); Jose H. Kerstholt, The Effect of Time Pressure on Decision- Making Behaviour in a Dynamic Task Environment, 86 Acta Psychologica 89 (1994); Edward M. Bowden, Accessing Relevant Information During Problem Solving: Time Constraints on Search in the Problem Space, 13 Memory & Cognition 280 (1985); Dan Zakay and Stuart Wooler, Time Pressure, Training and Decision Effectiveness, 27 Ergonomics 273 (1984).
163. See Ariely and Zakay, 108 Acta Psychologica at 197 (cited in note 131).
164. See Jim Blascovich and Joe Tomaka, The Biopsychosocial Model of Arousal Regulation, 28 Advances in Exp Soc Psychol 1, 23-24 (1996) (reporting that people asked to solve math problems in the presence of a friend experience increased physiological responses (heart rate and blood pressure) and worse math performance compared to those solving math problems in the absence of a friend).
165. See Chiu et al, 78 J Personality & Soc Psychol at 256 (cited in note 135).
166. Roger C. Schank and Robert P. Abelson, Scripts, Plans, Goals, and Understanding 36-68 (Erlbaum, 1977).
167. John A. Bargh, Automaticity in Social Psychology, in Tory Higgins and Arie W. Kruglanski, eds, Social Psychology: Handbook of Basic Principles 169, 179 (Erlbaum, 1996).
168. Id.
169. Ellen J. Langer, Arthur Blank, and Benzion Chanowitz, The Mindlessness of Ostensibly Thoughtful Action: The Role of "Placebic" Information in Interpersonal Interaction, 36 J Personality & Soc Psychol 635, 641 (1978).
170. Consider a recent television show (called "Spy TV"), the humorous premise of which is based on the incongruence of social scripts (such as a man shaving at his lunch table) and the reactions of others that ensue. The final product is considered humorous because we so rarely see people flout implicitly agreed-upon scripts.
171. Ellen J. Langer and Allison I. Piper, The Prevention of Mindlessness, 53 J Personality & Soc Psychol 280, 280 (1987).
172. John A. Bargh, The Automaticity of Everyday Life, in R. Wyer, ed, 10 The Automaticity of Everyday Life: Advances in Social Cognition 1, 29 (Erlbaum, 1997).
173. See Jones, 122 Interpersonal Perception at 50 (cited in note 32).
174. Cialdini, Influence: Science and Practice at 186 (cited in note 53); see, for example, Roger Schank and Robert P. Abelson, Scripts, Plans, Goals, and Understanding: An Inquiry into Human Knowledge Structures (Erlbaum, 1977); Bargh, Automaticity in Social Psychology at 170 (cited in note 143).
175. Cialdini, Influence: Science and Practice at 186 (cited in note 53); see, for example, Roger Schank and Robert P. Abelson, Scripts, Plans, Goals, and Understanding: An Inquiry into Human Knowledge Structures (Erlbaum, 1977); Bargh, Automaticity in Social Psychology at 170 (cited in note 143).
176. Cialdini, Influence: Science and Practice at 186 (cited in note 53); see, for example, Roger Schank and Robert P. Abelson, Scripts, Plans, Goals, and Understanding: An Inquiry into Human Knowledge Structures (Erlbaum, 1977); Bargh, Automaticity in Social Psychology at 170 (cited in note 143).
177. Drayton, Joint Appendix at 58.
178. Drayton, 122 S Ct at 2112
179. Officer Lang's display of his badge and simultaneous placement of his face 12-18 inches from the face of each passenger was likely to have been experienced by the passengers as intimidating. But because Officer Lang was "trying to be friendly" and because the Court adopted the perspective of the police, an action experienced by passengers as intimidating was interpreted as not intimidating.
180. In fact, citizen ratings of the intrusiveness of many different police search and seizure scenarios reveal that a scenario involving the police "boarding a bus and asking to search luggage" is perceived as among the most intrusive of all police actions, on a par with the searching of residences. See Christopher Slobogin and Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society," 42 Duke L J 727, 735-42 (1993). Out of 50 different scenarios, citizens ranked the bus sweep scenario as the seventh most instrusive invasion of privacy or autonomy; average ratings of the bus sweep scenario placed it as even more intrusive than police "questioning on a public sidewalk for ten minutes." Id.
181. See William J. Stuntz, Local Policing After the Terror, 111 Yale LJ 2137, 2170 n 102 (2002).
182. In both Bostick and in Drayton, consent was the sole justification proffered by the prosecution for the warrantless police search. Similarly, the only seizure issue was whether the passengers had been seized at all; there was no Fourth Amendment justification for a seizure. See Bostick, 501 US at 433-34 ("The State concedes . . . that the officers lacked the reasonable suspicion required to justify a seizure . . .).
183. Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry into the "Consensual" Police-Citizen Encounter, unpublished doctoral dissertation, on file with author. See also Illya D. Lichtenberg, Miranda in Ohio: The Effects of Robinette on the "Voluntary" Waiver of Fourth Amendment Rights, 44 Howard L J 349 (2001).
184. Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry into the "Consensual" Police-Citizen Encounter, unpublished doctoral dissertation, on file with author. See also Illya D. Lichtenberg, Miranda in Ohio: The Effects of Robinette on the "Voluntary" Waiver of Fourth Amendment Rights, 44 Howard L J 349 (2001).
185. Pursuant to standard departmental procedure, the Ohio State Police maintained a record for every traffic stop in which police requested consent to search during the period reported. Lichtenberg, Voluntary Consent at 163-64 (cited in note 157).
186. Id at 241, 246.
187. Id at 251. The rate of refusal to consent in the sample was therefore about 9%. The sample was drawn from a population consisting of all traffic stops conducted between January 1995 and May 1997 by the Ohio Highway Patrol where consent was requested (N = 699). The rate of refusal in the sample (about 9%) was similar to the rate of refusal in the population (about 8%). Note that the sample size of the survey described here is small (N = 54). Nevertheless, the sample well represented the population in terms of refusal rate, gender, and age. The race/ethnicity of the sample subjects resembled that of the population fairly well, except that Hispanic subjects were underrepresented in the sample.
188. Id at 268.
189. Id at 261-63.
190. Id at 264, subject #15373.
191. Id at 261, subject #3371.
192. Id at 261, subject #4337.
193. Id at 263, subject #16633.
194. Id at 271-72.
195. Id.
196. Id at 280-81.
197. Id at 279-80. This motorist was apparently so shaken that he reported that he avoids driving on the interstate near his home (where the stop occurred) even though he now drives a different car than the one he drove on the day he was stopped.
198. Drayton, 122 S Ct at 2108.
199. Robinette, 519 US 33 (1996).
200. In Robinette, a police officer stopped a motorist for speeding and ordered him out of the car. After checking for outstanding warrants, the officer issued an oral warning and returned the driver's license. The officer then asked the motorist for consent to search the car. The Court rejected the motorist's claim that because the traffic stop had concluded, he was unlawfully seized during the request for consent. Instead, the Court held that the Constitution does not require that the officer inform the motorist that he is free to go before a consent search may be deemed voluntary. Id at 40.
201. See Devon W. Carbado, Erasing the Fourth Amendment, 100 Mich L Rev 946, 1030 (2002); Carol S. Steiker, How Much Justice Can You Afford? A Response to Stuntz, 67 Geo Wash L Rev 1290, 1294 (1999); Rebecca A. Stack, Airport Drug Searches: Giving Content to the Concept of Free and Voluntary Consent, 77 Va L Rev 183, 205-08 (1991). Other commentators question whether police issuance of Miranda-type warnings in the consent search context is likely to dissipate coercion. See Strauss, 92 J Crim L & Criminol at 254 (cited in note 18).
202. See Devon W. Carbado, Erasing the Fourth Amendment, 100 Mich L Rev 946, 1030 (2002); Carol S. Steiker, How Much Justice Can You Afford? A Response to Stuntz, 67 Geo Wash L Rev 1290, 1294 (1999); Rebecca A. Stack, Airport Drug Searches: Giving Content to the Concept of Free and Voluntary Consent, 77 Va L Rev 183, 205-08 (1991). Other commentators question whether police issuance of Miranda-type warnings in the consent search context is likely to dissipate coercion. See Strauss, 92 J Crim L & Criminol at 254 (cited in note 18).
203. See Devon W. Carbado, Erasing the Fourth Amendment, 100 Mich L Rev 946, 1030 (2002); Carol S. Steiker, How Much Justice Can You Afford? A Response to Stuntz, 67 Geo Wash L Rev 1290, 1294 (1999); Rebecca A. Stack, Airport Drug Searches: Giving Content to the Concept of Free and Voluntary Consent, 77 Va L Rev 183, 205-08 (1991). Other commentators question whether police issuance of Miranda-type warnings in the consent search context is likely to dissipate coercion. See Strauss, 92 J Crim L & Criminol at 254 (cited in note 18).
204. See Devon W. Carbado, Erasing the Fourth Amendment, 100 Mich L Rev 946, 1030 (2002); Carol S. Steiker, How Much Justice Can You Afford? A Response to Stuntz, 67 Geo Wash L Rev 1290, 1294 (1999); Rebecca A. Stack, Airport Drug Searches: Giving Content to the Concept of Free and Voluntary Consent, 77 Va L Rev 183, 205-08 (1991). Other commentators question whether police issuance of Miranda-type warnings in the consent search context is likely to dissipate coercion. See Strauss, 92 J Crim L & Criminol at 254 (cited in note 18).
205. Schneckloth, 412 US at 229. The Court worried that adding a warning requirement would "in practice, create serious doubt whether consent searches could continue to be conducted." Id.
206. Lichtenberg, 44 Howard L J at 349 (cited in note 157). Lichtenberg examined Ohio State Police consent search data both before and after the Ohio Supreme Court ruled in Robinette that motorists who are stopped for traffic violations must be warned that they are free to leave prior to being asked by police for consent to search their vehicle. Ohio v Robinette, 653 NE2d 695 (Ohio 1995) (the U.S. Supreme Court subsequently reversed and held that no such warning was necessary. Robinette, 519 US 33 (1996)). This comparison revealed that the rate at which motorists consented to searches actually increased nominally after the institution of warnings. Id at 367. An examination of data from a control group (Maryland, in which warnings were never instituted) reveals that a similar nominal increase occurred there during the same time period, suggesting that the Ohio warnings had no effect whatever on rates of consent to searches. Id at 372-73.
207. Lichtenberg, 44 Howard L J at 349 (cited in note 157). Lichtenberg examined Ohio State Police consent search data both before and after the Ohio Supreme Court ruled in Robinette that motorists who are stopped for traffic violations must be warned that they are free to leave prior to being asked by police for consent to search their vehicle. Ohio v Robinette, 653 NE2d 695 (Ohio 1995) (the U.S. Supreme Court subsequently reversed and held that no such warning was necessary. Robinette, 519 US 33 (1996)). This comparison revealed that the rate at which motorists consented to searches actually increased nominally after the institution of warnings. Id at 367. An examination of data from a control group (Maryland, in which warnings were never instituted) reveals that a similar nominal increase occurred there during the same time period, suggesting that the Ohio warnings had no effect whatever on rates of consent to searches. Id at 372-73.
208. See text accompanying notes 161-70.
209. Drayton, 122 S Ct at 2113.
210. Id at 2114 (Souter dissenting).
211. See Robin Toner and Janet Elder, A Nation Challenged: Attitudes; Public Is Wary but Supportive on Rights Curbs, NY Times A1 (Dec 12, 2001) (a NY Times/CBS News poll revealed that 64% feel that it is a good idea for the president to have the authority to make changes in rights usually guaranteed by the constitution; 90% approve of the way the president is handling the campaign against terrorism); Brad Smith, Critics Alarmed Over Post- 9/11 Crackdown, Tampa Tribune 12 (Sept 2, 2002) (a National Public Radio/Harvard Kennedy School poll revealed that 51% said it was necessary to surrender some civil liberties to curb terrorism; a Los Angeles Times poll reported that 59% were in support of wider government powers to tap telephone lines and monitor wireless communications). See also Stuntz, 111 Yale L J at 2138 (cited in note 155).
212. See Robin Toner and Janet Elder, A Nation Challenged: Attitudes; Public Is Wary but Supportive on Rights Curbs, NY Times A1 (Dec 12, 2001) (a NY Times/CBS News poll revealed that 64% feel that it is a good idea for the president to have the authority to make changes in rights usually guaranteed by the constitution; 90% approve of the way the president is handling the campaign against terrorism); Brad Smith, Critics Alarmed Over Post-9/11 Crackdown, Tampa Tribune 12 (Sept 2, 2002) (a National Public Radio/Harvard Kennedy School poll revealed that 51% said it was necessary to surrender some civil liberties to curb terrorism; a Los Angeles Times poll reported that 59% were in support of wider government powers to tap telephone lines and monitor wireless communications). See also Stuntz, 111 Yale L J at 2138 (cited in note 155).
213. See Robin Toner and Janet Elder, A Nation Challenged: Attitudes; Public Is Wary but Supportive on Rights Curbs, NY Times A1 (Dec 12, 2001) (a NY Times/CBS News poll revealed that 64% feel that it is a good idea for the president to have the authority to make changes in rights usually guaranteed by the constitution; 90% approve of the way the president is handling the campaign against terrorism); Brad Smith, Critics Alarmed Over Post- 9/11 Crackdown, Tampa Tribune 12 (Sept 2, 2002) (a National Public Radio/Harvard Kennedy School poll revealed that 51% said it was necessary to surrender some civil liberties to curb terrorism; a Los Angeles Times poll reported that 59% were in support of wider government powers to tap telephone lines and monitor wireless communications). See also Stuntz, 111 Yale L J at 2138 (cited in note 155).
214. Drayton, 122 S Ct at 2113.
215. Id at 2112.
216. Drayton, Joint Appendix at 69.
217. Id.
218. The federal government recently designated eight Florida counties as a "High Intensity Drug Trafficking Area." See Dana Treen, Medicine Cabinets, Mailrooms Figure in Drug Trade Trafficking Hides Behind a New Face, Experts Say, Fla Times Union (Jacksonville) B3 (Sept 26, 2001).
219. There was testimony at the suppression hearing in Drayton that Officer Lang asked Brown's permission to check him for weapons. Drayton, Joint Appendix at 92. Brown's attorney argued that this was a ploy to convince Brown to agree to a search that Brown assumed would be limited for those purposes. Respondent's Brief at 38 n 32. The Drayton opinion does not address this argument.
220. The dissent's argument in Drayton begins with this point. Drayton, 122 S Ct at 2114.
221. There are a multitude of reasons why an innocent person would not want police rifling through his or her belongings or searching his or her person. A law-abiding citizen might possess items that he or she simply would prefer to keep private, such as personal grooming items, medications, sexual aids, or controversial printed matter, to name just a few.
222. See Slobogin and Schumacher, 42 Duke L J at 735-42 (cited in note 154).
223. See Wayne R. LaFave, 3 Search & Seizure § 8.1 (West, 3d ed 1996).
224. See Minnesota v George, 557 NW2d 575, 581-82 (Tomljanovich concurring) (noting the increasing use by police of subtle tactics to obtain citizens' consent to search, and remarking that officers have recently begun to receive training on obtaining consent, making use of tactics similar to "the training sales people receive in getting people to agree to buy things they do not want").
225. Robinette, 519 US at 40.
226. There is no single reliable estimate for the number of consent searches conducted in any given year nationwide (or even statewide). In some cases, police officers have testified that they ask for consent to search every motorist they stop. See Harris v State, 994 SW2d 927, 932 n 1 (Tex Crim App 1999). In one city, it was estimated anecdotally that 98% of the searches were consent searches. Paul Sutton, The Fourth Amendment in Action: An Empirical View of the Search Warrant Process, 22 Crim L Bull 405, 415 (1986).
227. Drayton, Joint Appendix at 69. As others have observed, the targeting of intercity buses for consent searches gives law enforcement access to a segment of the population that is arguably especially vulnerable to coercive practices. Intercity bus passengers are disproportionately poor, nonwhite, and less educated. See William R. O'Shields, Note, The Exodus of Minorities' Fourth Amendment Rights into Oblivion, 77 Iowa L Rev 1875, 1899, n 211 (1992). Others have argued that the demographic characteristics of intercity bus passengers make it more likely that they will acquiesce to authority because they do not know how to object, or because they have more reason to be intimidated. See Dennis J. Callahan, The Long Distance Remand: Florida v. Bostick and the Re-Awakened Bus Search Battlefront in the War on Drugs, 43 Wm & Mary L Rev 365, 401 n 171 (2001); see also United States v Lewis, 728 F Supp 784, 789 (DC Cir 1990) (intercity buses "are utilized largely by the underclass of this nation who, because of greater concerns (such as being able to survive), do not often complain about [bus sweeps]").
228. Drayton, Joint Appendix at 69. As others have observed, the targeting of intercity buses for consent searches gives law enforcement access to a segment of the population that is arguably especially vulnerable to coercive practices. Intercity bus passengers are disproportionately poor, nonwhite, and less educated. See William R. O'Shields, Note, The Exodus of Minorities' Fourth Amendment Rights into Oblivion, 77 Iowa L Rev 1875, 1899, n 211 (1992). Others have argued that the demographic characteristics of intercity bus passengers make it more likely that they will acquiesce to authority because they do not know how to object, or because they have more reason to be intimidated. See Dennis J. Callahan, The Long Distance Remand: Florida v. Bostick and the Re-Awakened Bus Search Battlefront in the War on Drugs, 43 Wm & Mary L Rev 365, 401 n 171 (2001); see also United States v Lewis, 728 F Supp 784, 789 (DC Cir 1990) (intercity buses "are utilized largely by the underclass of this nation who, because of greater concerns (such as being able to survive), do not often complain about [bus sweeps]").
229. Drayton, Joint Appendix at 69. As others have observed, the targeting of intercity buses for consent searches gives law enforcement access to a segment of the population that is arguably especially vulnerable to coercive practices. Intercity bus passengers are disproportionately poor, nonwhite, and less educated. See William R. O'Shields, Note, The Exodus of Minorities' Fourth Amendment Rights into Oblivion, 77 Iowa L Rev 1875, 1899, n 211 (1992). Others have argued that the demographic characteristics of intercity bus passengers make it more likely that they will acquiesce to authority because they do not know how to object, or because they have more reason to be intimidated. See Dennis J. Callahan, The Long Distance Remand: Florida v. Bostick and the Re-Awakened Bus Search Battlefront in the War on Drugs, 43 Wm & Mary L Rev 365, 401 n 171 (2001); see also United States v Lewis, 728 F Supp 784, 789 (DC Cir 1990) (intercity buses "are utilized largely by the underclass of this nation who, because of greater concerns (such as being able to survive), do not often complain about [bus sweeps]").
230. Drayton, Joint Appendix at 80. Officer Lang testified that over a three-year period he conducted bus sweeps of four to six buses per day, four to five days per week, with each bus containing an average of 25-30 passengers.
231. Florida v Kerwick, 512 So2d 347, 349 (1987).
232. State v Retherford, 93 Ohio App 3d 586, 591-92 (1994). This same officer who requested consent 786 times in one year also claimed that the main reason he requested consent to search in the instant case was that "I need the practice, to be quite honest." Id.
233. Because of the absence of systematic record keeping, it is difficult to calculate the proportion of consent searches in which the target is innocent of any crime. There are, however, scattered statistics for individual localities. For example, the Sheriff in one Florida county arrested only 55 of the 507 motorists subjected to consent searches over a three-year period. Jeff Brazil and Steve Berry, Color of Driver Is Key to Stops in 1-95 Video, Orlando Sentinel Tribune A1 (Aug 23, 1992). An analysis of over 1,900 consent searches of motorists concluded that illegal drugs are discovered in about one of every eight searches. Lichtenberg, Voluntary Consent at 171 (cited in note 157).
234. Because of the absence of systematic record keeping, it is difficult to calculate the proportion of consent searches in which the target is innocent of any crime. There are, however, scattered statistics for individual localities. For example, the Sheriff in one Florida county arrested only 55 of the 507 motorists subjected to consent searches over a three- year period. Jeff Brazil and Steve Berry, Color of Driver Is Key to Stops in 1-95 Video, Orlando Sentinel Tribune A1 (Aug 23, 1992). An analysis of over 1,900 consent searches of motorists concluded that illegal drugs are discovered in about one of every eight searches. Lichtenberg, Voluntary Consent at 171 (cited in note 157).
235. Drayton, 122 S Ct at 2114.
236. Id.
237. Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 San Diego L Rev 507 (2001). The sentiment of one motorist in Lichtenberg's survey is perhaps typical: "I don't think they would have searched the car then and there if I refused to sign the [consent] form, but I didn't know what would have happened beyond that." Lichtenberg, Voluntary Consent at 272 (cited in note 157), subject #3614.
238. Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 San Diego L Rev 507 (2001). The sentiment of one motorist in Lichtenberg's survey is perhaps typical: "I don't think they would have searched the car then and there if I refused to sign the [consent] form, but I didn't know what would have happened beyond that." Lichtenberg, Voluntary Consent at 272 (cited in note 157), subject #3614.
239. Steinbock, 38 San Diego L Rev at 272 (cited in note 201). According to one motorist in Lichtenberg's survey: "Yeah, if I refused, he would get pissed-off and detain me longer." Lichtenberg, Voluntary Consent at 269 (cited in note 157), subject #01185.
240. Steinbock, 38 San Diego L Rev at 272 (cited in note 201). According to one motorist in Lichtenberg's survey: "Yeah, if I refused, he would get pissed-off and detain me longer." Lichtenberg, Voluntary Consent at 269 (cited in note 157), subject #01185.
241. As is well known to many citizens who live in communities where police presence is pervasive, the consequences of being perceived by police as "uncooperative" are sometimes much more severe than a simple negative affective reaction on the part of the law enforcement officer. See, for example, Tracey Maclin, Black and Blue Encounters, 26 Valp U L Rev 243 (1991).
242. For example: "I knew I wouldn't be going to jail for not replying, but I knew I might be detained. . . . There's a foggy area between knowing your rights . . . and something like a policeman disliking the way you answered a question. . . . [I] had to reply to avoid trouble." Lichtenberg, Voluntary Consent at 265 (cited in note 157), subject #16633.
243. Id at 282 n 38.
244. Id at 283, subject #05168.
245. Id at 284, subject #13688.
246. Id at 284, subject #07267.
247. Id at 285, subject #11091.
248. Id at 283, subject #14735.
249. Id at 285, subject #15494.
250. Id at 288, subject #12731.
251. The Court in the past has recognized that there is a cost associated with police inspection of the person (pat-downs) or personal effects of citizens. For example, Chief Justice Warren stated in Terry v Ohio that when a police officer accosts an individual and restrains his or her freedom to walk away, and conducts a pat-down of that person's body, such a procedure is "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly." Terry v Ohio, 392 US 1, 17-18 (1968). And, more recently, the Court acknowledged the intrusiveness of a police officer's tactile examination of a bus passenger's carry-on luggage, and compared this with the intrusiveness of a police officer's physical inspection of a person's clothing described in Terry. Bond v United States, 529 US 334, 337-38 (2000).
252. A civil lawsuit alleging violations of the Fourth Amendment may be brought against federal officers, see Bivens v Six Unknown Named Agents, 403 US 388 (1971), or under 42 USC § 1983 against state officers. Success rates are low. See Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 Cornell L Rev 482, 550-51 (1982). Injuries are often difficult to prove. See Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum L Rev 247, 284 (1988).
253. A civil lawsuit alleging violations of the Fourth Amendment may be brought against federal officers, see Bivens v Six Unknown Named Agents, 403 US 388 (1971), or under 42 USC § 1983 against state officers. Success rates are low. See Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 Cornell L Rev 482, 550-51 (1982). Injuries are often difficult to prove. See Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum L Rev 247, 284 (1988).
254. Wayne R. LaFave, 4 Search and Seizure: A Treatise on the Fourth Amendment § 8.1 596 (West, 3d ed 1996). Other authors have explicitly argued that the Court's doctrine regarding consensual encounters and consent searches is characterized in practice by pervasive lack of consent. See Tracey Maclin, Justice Thurgood Marshall: Taking the Fourth Amendment Seriously, 77 Cornell L Rev 723, 792-95 (1992); William R. O'Shields, Note, The Exodus of Minorities' Fourth Amendment Rights into Oblivion, 77 Iowa L Rev 1875 (1992).
255. Wayne R. LaFave, 4 Search and Seizure: A Treatise on the Fourth Amendment § 8.1 596 (West, 3d ed 1996). Other authors have explicitly argued that the Court's doctrine regarding consensual encounters and consent searches is characterized in practice by pervasive lack of consent. See Tracey Maclin, Justice Thurgood Marshall: Taking the Fourth Amendment Seriously, 77 Cornell L Rev 723, 792-95 (1992); William R. O'Shields, Note, The Exodus of Minorities' Fourth Amendment Rights into Oblivion, 77 Iowa L Rev 1875 (1992).
256. Wayne R. LaFave, 4 Search and Seizure: A Treatise on the Fourth Amendment § 8.1 596 (West, 3d ed 1996). Other authors have explicitly argued that the Court's doctrine regarding consensual encounters and consent searches is characterized in practice by pervasive lack of consent. See Tracey Maclin, Justice Thurgood Marshall: Taking the Fourth Amendment Seriously, 77 Cornell L Rev 723, 792-95 (1992); William R. O'Shields, Note, The Exodus of Minorities' Fourth Amendment Rights into Oblivion, 77 Iowa L Rev 1875 (1992).
257. Stuntz, 111 Yale L J at 2170 n 102 (cited in note 155).
258. Id at 2174 n 115.
259. In Bostick, the Court's remand instructions were actually "We remand so that the Florida courts may evaluate the seizure question under the correct legal standard." Bostick, 501 US at 437. The "correct" legal standard as articulated by the Court was in reality scarcely different from the standard originally applied by the Florida Supreme Court. As one commentator has remarked, "the Court seems so certain that there was no seizure in the instant case that it virtually reads the question it supposedly remanded right out of the case." Wayne R. LaFave, Two Hundred Years of Individual Liberties: Essays on the Bill of Rights, 1991 U Ill L Rev 729, 752 (1991).
260. Id.
261. See for example, Hemingway v State, 762 S2d 957 (Fla App 2000); Ramos v State, 758 S2d 741 (Fla App 2000); Mondestin v State, 760 S2d 1062 (Fla App 2000); Stubbs v State, 661 S2d 1268 (Fla App 1995); State v Hunter, 596 S2d 158 (Fla App 1992); State v Kuntzwiler, 585 S2d 1096 (Fla App 1991).
262. United States v Washington, 151 F3d 1354 (11th Cir 1998); United States v Guapi, 144 F3d 1393 (11th Cir 1998). Interestingly, in Guap, the bus driver stated under oath that he thought passengers were not free to leave the bus without being searched. 144 F3d at 1396-97. Courts in most other federal circuits as well as many state courts generally interpreted Bostick in such a way that resulted in virtually all bus sweep consent searches being deemed voluntary. See, for example, United States v Broomfield, 201 F3d 1270 (10th Cir 2000); United States v Boone, 67 F3d 76 (5th Cir 1995); United States v Garcia, 103 F3d 121 (4th Cir 1996); United States v Graham, 982 F2d 273 (8th Cir 1992); State v Hernandez, 64 SW3d 548 (Tex Ct App 2001); Stevenson v State, 961 P2d 137 (Nev 1998). But there were some exceptions. See cases cited in notes 222-28.
263. See People v Bloxson, 517 NW2d 563 (Mich App 1994); State v Talbert, 873 SW2d 321 (Mo App SD 1994); United States v Lopez, 1999 WL 494007 (D Or 1999).
264. United States v Stephens, 206 F3d 914 (9th Cir 2000) (holding that the police announcement that passengers were free to leave amounted to a "Hobson's choice" of submitting to a search or missing the bus).
265. See, for example, United States v Portillo-Aguirre, 131 F Supp 2d 874 (WD Tex 2001); United States v Outlaw, 134 F Supp 2d 807 (WD Tex 2001); United States v Gant, 112 F3d 239 (6th Cir 1997); United States v Broomfield, 201 F3d 1270 (10th Cir 2000); Stubbs v State, 661 So2d 1268 (Fla App 5th Dist 1995); State v Hernandez, 64 SW3d 548 (Tex Ct App 2001); Hemingway v State, 762 So2d 957 (Fla App 4th Dist 2000).
266. United States v Brumfield, 910 F Supp 1528 (D Colo 1996); United States v Barrett, 976 F Supp 1105 (ND Ohio 1997); State v Vikesdal, 688 So2d 685 (La App 2d Cir 1997); Mitchell v State, 831 SW2d 829 (Tex Ct App 1992); United States v Garzon, 119 F3d 1446 (10th Cir 1997).
267. United States v Jones, 914 F Supp 421 (D Colo 1996); United States v Bobo, 2 Fed Appx 401 (6th Cir 2001); Stevenson v State, 961 P2d 137 (Nev 1998).
268. United States v Randolph, 789 F Supp 407 (DDC 1992); Mitchell v State, 831 SW2d 829 (Tex Ct App 1992).
269. Burton v United States, 657 A2d 741 (DC 1994).
270. In the bus sweep cases in which the search was found to be invalid, the Eleventh Circuit considered the fact that the police did not advise passengers that they had a right not to cooperate. In reversing the Eleventh Circuit's decision in Drayton, the Court admonished the Eleventh Circuit for having adopted a per se rule that invalidated bus sweep searches whenever the police don't advise passengers of their right to refuse. While the Eleventh Circuit does not appear to have explicitly adopted such a bright line rule, it may be the case that in its analysis of the totality of the circumstances, the absence of police warnings effectively tipped the scale in the direction of finding coercion.
271. Bostick had left some ambiguity about this. The majority stated, "Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent." 401 US at 432. A few lower courts subsequently interpreted Bostick to stand for the proposition that because the presence of police warnings is a fact "particularly worth noting," the absence of police warnings weighs especially heavily in the totality of the circumstances analysis. See United States v Guapi, 144 F3d 1393, 1395 (11th Cir 1998) ("the absence of such notice is an important factor in this case").
272. The lower courts' difficulty in applying the current standard for voluntary consent to search is exacerbated by the fact that, because the question of voluntariness is determined on a case-by-case basis, by considering the totality of the circumstances, this encourages the police - who have no concrete guidelines as to which methods are acceptable - to apply as much pressure as is necessary in each case to obtain consent. The lower courts, already faced with the difficult task of assessing all of the circumstances contributing to pressures on the suspect to consent, must factor into their assessment the incentives of the police to minimize the appearance of any pressure at a suppression hearing. For example, at the hearing on the motion to suppress the illegal narcotics found on Drayton's and Brown's person, the arresting officer emphasized repeatedly his own polite manner toward the bus passengers that day. Drayton, Respondent's Brief, Joint Appendix at 51, 99, and 101. This incentive structure is similar to that existing under the pre-Miranda voluntariness regime, in which case-by-case review left police without adequate guidance and subtle incentives to allow interrogation pressures to spiral out of control. See Stephen J. Schulhofer, Reconsidering Miranda, 54 U Chi L Rev 435, 451-52 (1987).
273. The lower courts' difficulty in applying the current standard for voluntary consent to search is exacerbated by the fact that, because the question of voluntariness is determined on a case-by-case basis, by considering the totality of the circumstances, this encourages the police - who have no concrete guidelines as to which methods are acceptable - to apply as much pressure as is necessary in each case to obtain consent. The lower courts, already faced with the difficult task of assessing all of the circumstances contributing to pressures on the suspect to consent, must factor into their assessment the incentives of the police to minimize the appearance of any pressure at a suppression hearing. For example, at the hearing on the motion to suppress the illegal narcotics found on Drayton's and Brown's person, the arresting officer emphasized repeatedly his own polite manner toward the bus passengers that day. Drayton, Respondent's Brief, Joint Appendix at 51, 99, and 101. This incentive structure is similar to that existing under the pre-Miranda voluntariness regime, in which case-by-case review left police without adequate guidance and subtle incentives to allow interrogation pressures to spiral out of control. See Stephen J. Schulhofer, Reconsidering Miranda, 54 U Chi L Rev 435, 451-52 (1987).
274. See Robert Cooter, Expressive Law and Economics, 27 J Legal Stud 585 (1998); Dan M. Kahan, What Do Alternative Sanctions Mean? 63 U Chi L Rev 591 (1996); Lawrence Lessig, The Regulation of Social Meaning, 62 U Chi L Rev 943 (1995); Richard McAdams, A Focal Point Theory of Expressive Law, 86 Va L Rev 1649 (2000).
275. See Robert Cooter, Expressive Law and Economics, 27 J Legal Stud 585 (1998); Dan M. Kahan, What Do Alternative Sanctions Mean? 63 U Chi L Rev 591 (1996); Lawrence Lessig, The Regulation of Social Meaning, 62 U Chi L Rev 943 (1995); Richard McAdams, A Focal Point Theory of Expressive Law, 86 Va L Rev 1649 (2000).
276. See Robert Cooter, Expressive Law and Economics, 27 J Legal Stud 585 (1998); Dan M. Kahan, What Do Alternative Sanctions Mean? 63 U Chi L Rev 591 (1996); Lawrence Lessig, The Regulation of Social Meaning, 62 U Chi L Rev 943 (1995); Richard McAdams, A Focal Point Theory of Expressive Law, 86 Va L Rev 1649 (2000).
277. See Robert Cooter, Expressive Law and Economics, 27 J Legal Stud 585 (1998); Dan M. Kahan, What Do Alternative Sanctions Mean? 63 U Chi L Rev 591 (1996); Lawrence Lessig, The Regulation of Social Meaning, 62 U Chi L Rev 943 (1995); Richard McAdams, A Focal Point Theory of Expressive Law, 86 Va L Rev 1649 (2000).
278. See Paul H. Robinson and John M. Darley, The Utility of Desert, 91 Nw U L Rev 453 (1997).
279. Tom R. Tyler, Why People Obey the Law (Yale, 1990).
280. Janice Nadler, Flouting the Law: Does Perceived Injustice Provoke General Non-Compliance? Unpublished manuscript (2002).
281. See, for example, Most Recent Traffic Stop Data Show Link Change; Black Drivers Still Stopped at Higher Rate, Washington Post T03 (June 6, 2002) ("Black and Hispanic drivers are having their vehicles searched at a rate greater than that in which both groups are stopped"); Mike Connell, Search After Traffic Stop Raises Question of Equal Treatment, Times Herald (Port Huron, MI) 7B (May 19, 2002) ("once they were pulled over, black males were 70% more likely than white males to be searched without evidence of a crime - so- called consent searches"); Group to Inform Drivers of Rights in Searches, New York Times B5 (May 9, 2002) ("consent searches . . . have been the focus of the fight over racial profiling"); John M. Glionna, Oakland Police: Success Story or Scandal? Los Angeles Times pt 2, p 1 (Dec 3, 2001) (outlining accusations by the ACLU against the Oakland Police of using racial profiling in consent searches, and noting that the California Highway Patrol had declared a moratorium on consent searches).
282. See, for example, Most Recent Traffic Stop Data Show Link Change; Black Drivers Still Stopped at Higher Rate, Washington Post T03 (June 6, 2002) ("Black and Hispanic drivers are having their vehicles searched at a rate greater than that in which both groups are stopped"); Mike Connell, Search After Traffic Stop Raises Question of Equal Treatment, Times Herald (Port Huron, MI) 7B (May 19, 2002) ("once they were pulled over, black males were 70% more likely than white males to be searched without evidence of a crime - so-called consent searches"); Group to Inform Drivers of Rights in Searches, New York Times B5 (May 9, 2002) ("consent searches . . . have been the focus of the fight over racial profiling"); John M. Glionna, Oakland Police: Success Story or Scandal? Los Angeles Times pt 2, p 1 (Dec 3, 2001) (outlining accusations by the ACLU against the Oakland Police of using racial profiling in consent searches, and noting that the California Highway Patrol had declared a moratorium on consent searches).
283. See, for example, Most Recent Traffic Stop Data Show Link Change; Black Drivers Still Stopped at Higher Rate, Washington Post T03 (June 6, 2002) ("Black and Hispanic drivers are having their vehicles searched at a rate greater than that in which both groups are stopped"); Mike Connell, Search After Traffic Stop Raises Question of Equal Treatment, Times Herald (Port Huron, MI) 7B (May 19, 2002) ("once they were pulled over, black males were 70% more likely than white males to be searched without evidence of a crime - so- called consent searches"); Group to Inform Drivers of Rights in Searches, New York Times B5 (May 9, 2002) ("consent searches . . . have been the focus of the fight over racial profiling"); John M. Glionna, Oakland Police: Success Story or Scandal? Los Angeles Times pt 2, p 1 (Dec 3, 2001) (outlining accusations by the ACLU against the Oakland Police of using racial profiling in consent searches, and noting that the California Highway Patrol had declared a moratorium on consent searches).
284. See, for example, Most Recent Traffic Stop Data Show Link Change; Black Drivers Still Stopped at Higher Rate, Washington Post T03 (June 6, 2002) ("Black and Hispanic drivers are having their vehicles searched at a rate greater than that in which both groups are stopped"); Mike Connell, Search After Traffic Stop Raises Question of Equal Treatment, Times Herald (Port Huron, MI) 7B (May 19, 2002) ("once they were pulled over, black males were 70% more likely than white males to be searched without evidence of a crime - so- called consent searches"); Group to Inform Drivers of Rights in Searches, New York Times B5 (May 9, 2002) ("consent searches . . . have been the focus of the fight over racial profiling"); John M. Glionna, Oakland Police: Success Story or Scandal? Los Angeles Times pt 2, p 1 (Dec 3, 2001) (outlining accusations by the ACLU against the Oakland Police of using racial profiling in consent searches, and noting that the California Highway Patrol had declared a moratorium on consent searches).
285. Nadler, Flouting the Law (cited in note 235).
286. Id. In an experimental demonstration of the Flouting Thesis, some participants were given newspaper stories to read that were about laws widely perceived to be unjust. Others read newspaper stories about perceived just laws. Later, in a seemingly unrelated study, all participants indicated their personal willingness to engage in various examples of unlawful behavior, such as drunk driving, shoplifting, speeding, etc., all unrelated to the laws in the newspaper stories. People who were exposed to unjust laws via newspaper stories were more willing to flout (unrelated) laws in their everyday lives than people exposed to just laws in the newspaper.
287. These very sentiments were expressed by motorists interviewed in Lichtenberg's survey. See Lichtenberg, Voluntary Consent (cited in note 157).
288. Most citizens undoubtedly did not hear about the Drayton opinion, but some did. Shortly after the Court issued its decision in Drayton, syndicated columnist James J. Kilpatrick wrote an editorial published by many local newspapers across the country. In it, he openly mocked the Court's reasoning in Drayton. Kilpatrick quoted from a portion of the majority opinion which stated, "'Nothing would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter,'" to which Kilpatrick retorted, "Ho, ho, ho, and call the Tooth Fairy to the stand!" The Augusta Chronicle ran Kilpatrick's column under a headline entitled, Justice Kennedy Disconnected from Reality (July 21, 2002), p A04. It is therefore somewhat plausible that such publicity has direct effects on citizens' respect for law, although these direct effects may be small. There are also more widespread, indirect effects, as I argue in the remainder of this section.
289. See note 236.
290. See, for example, Most Recent Traffic Stop Data Show Little Change; Black Drivers Still Stopped at Higher Rate, Washington Post T03 (June 6, 2002) (cited in note 236); Connell, Search After Traffic Stop Raises Question of Equal Treatment, Times Herald (Port Huron, MI) 7B (May 19, 2002) (cited in note 236).
291. See, for example, Most Recent Traffic Stop Data Show Little Change; Black Drivers Still Stopped at Higher Rate, Washington Post T03 (June 6, 2002) (cited in note 236); Connell, Search After Traffic Stop Raises Question of Equal Treatment, Times Herald (Port Huron, MI) 7B (May 19, 2002) (cited in note 236).
292. See Group to Inform Drivers of Rights in Searches, New York Times B5 (May 9, 2002) (cited in note 236); Glionna, Oakland Police: Success Story or Scandal? Los Angeles Times pt 2, p 1 (Dec 3, 2001) (cited in note 236).
293. See Group to Inform Drivers of Rights in Searches, New York Times B5 (May 9, 2002) (cited in note 236); Glionna, Oakland Police: Success Story or Scandal? Los Angeles Times pt 2, p 1 (Dec 3, 2001) (cited in note 236).
294. Intercity bus passengers are disproportionately poor, nonwhite, and less educated. See O'Shields, 77 Iowa L Rev at 1899 n 211 (cited in note 194).
295. See Nadler, Flouting the Law (cited in note 235).
296. Stephen Chapman, "Voluntary" Consent and Other Judicial Fantasies, Chicago Tribune C23 (Nov 24, 1996).
297. See note 236.
298. See David Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Supreme Court Review 271; Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich L Rev 2466, 2468 (contending that since the 1960s the Court has become "more accommodating to assertions of the need for public order.").
299. See David Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Supreme Court Review 271; Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich L Rev 2466, 2468 (contending that since the 1960s the Court has become "more accommodating to assertions of the need for public order.").
300. Of course, it is somewhat self-serving for scholars, policymakers, and judges, many of whom do not travel frequently on intercity buses and trains, to determine that this sacrifice is one worth making when it is others (especially those who are politically vulnerable) who bear the burden of the sacrifice. This kind of self-serving "sacrifice" is reminiscent of an ironic moment in the movie Shrek, when Lord Farquaad announces to his constituency, "Some of you may die, but it's a sacrifice I am willing to make."