Document Type


Publication Date

August 2011


Fourth Amendment, Consent, Supreme Court, Constitutional Law, Police, Warren Court, Burger Court, Nixon


The officer walking the beat has numerous tools at her disposal to effectuate a warrantless search, the most popular of which is the consent search. Academics, courts, and the public appear skeptical of current consent search practices; so, how did we get here? Step back to 1969 when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice of the Supreme Court. At that time, many believed Burger’s “law and order” background foretold Miranda’s overruling. That never happened; a handful of commentators and historians therefore view the Burger Court’s criminal procedure decisions as anticlimactic. That view overlooks the Burger Court’s crowning anti-Miranda achievement: Schneckloth v. Bustamonte. Schneckloth made clear that warning citizens of their constitutional rights had no place outside the context of custodial interrogation.No article has asked an important and fundamental question about the Schneckloth opinion: what set of circumstances led the Court to conclude that the Fourth Amendment does not require that citizens be informed of their right to refuse consent? This Article argues that Schneckloth is the product of a truly unique confluence of social, political, and judicial circumstances. By properly understanding Schneckloth in its broader historical context, the Article reveals its truly anomalous nature and similarly reveals why the Court should reconsider whether the Fourth Amendment requires officers to inform citizens of their right to refuse consent.

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