Most searches conducted by police officers are “consensual” and thus beyond the reach of the Fourth Amendment. However, such searches violate the Fourth Amendment when, under the totality of circumstances, consent appears to be a product of coercion—that is, when the consent was involuntary. In 1980, in Mendenhall v. United States, the Supreme Court identified race as a relevant factor courts should consider but failed to explain precisely why race was relevant. After decades of mistreatment and state-sanctioned violence, distrust of law enforcement was rampant in communities of color, and the Mendenhall Court correctly intuited (but failed to describe) the coercive effect of this entrenched distrust and corresponding fear when law enforcement sought consent to search from a person of color. These sentiments have persisted—even as police forces have become more diverse and misconduct has, by many accounts, decreased—and recent developments in video recording technology and social media have created immediate and pervasive social awareness of new incidents of police violence against persons of color and further reinforced this inherited distrust. Yet, since Mendenhall, the Supreme Court has ignored race in its consent search cases, and lower courts have followed suit. This is an inexcusable and worrisome omission—race should be one of the central factors relevant to determining whether, under the totality of the circumstances, consent to search was impermissibly coerced.
Beau C. Tremitiere,
The Fallacy of a Colorblind Consent Search Doctrine,
Nw. U. L. Rev.