Other modern-era lines of Supreme Court decisions regulate all major areas of law enforcement against citizens and provide national standards that require compliance in all
50 states.
One could argue that certain areas of search and seizure laws still allow police conduct that violates those valuable underlying principles. In particular, the Drayton decision (122 S. Ct. 2105, 2002) rejected the suggestion that ordinary citizens are not likely to believe they are free to decline a police officer's request for consent to a search of their person or belongings without probable cause. In Drayton, the defendants were passengers on a bus when two uniformed police officers boarded the vehicle and initiated conversations with passengers as part of routine drug and weapons interdiction practices.
The defendants consented to a specific request of the officer to search their bags and then their persons and the officer found cocaine concealed in the clothing of both men. The officers had no probable cause to suspect the defendant of any wrongdoing, and the defendant would have been lawfully entitled to refuse such consent without consequences. The Eleventh Circuit Court determined that the defendants had both been illegally seized, because, under the circumstances and confined space aboard the bus, they did not realize that they were perfectly free to decline conversation with the officers or to leave the bus without explanation had they wished to do so. (U.S. Department of Justice LEB, 2006)
Similar situations arise daily,...
In many cases, the officers very deliberately insinuate by their tone of voice, choice of words, and the totality of their control of the surrounding circumstances that refusing consent is not a practical option.
Police officers know that absent reasonable suspicion or probable cause of a crime, subjects of ordinary traffic enforcement action are absolutely free to decline consent without penalty. Nevertheless, when their initial request for voluntary consent is refused, many officers respond with accusatory questions about the reason for the refusal and suggest that continued refusal is grounds, in and of itself, to justify a search without consent.
The criminal justice system may be too lenient in other areas, such as some of the rights granted after conviction. However, on the fundamental issue of search and seizure and self-incrimination, it is always better to err on the side of protecting those rights, even at the expense of the outcome of any particular prosecution. (Mills, 1859).
References
Bulzomi, M.J. (2006) Police Intervention Short of Arrest.
FBI Law Enforcement Bulletin 17(11), 26-32.
Mills, J.S. (1859) On Liberty.
Indianapolis: The Bobbs-Merrill Company, Inc. (1956)
Taylor, R. (1980) Freedom, Anarchy, and the Law: An Introduction to Political Philosophy. Buffalo: Prometheus Books
