Now I remember why my expectations are low in consent-to-search cases. They end in opinions like the one we got in Brooks. The Court performed a totality of the circumstances analysis. Like many such analyses, it was substantively choppy and composed of parts that did not necessarily follow one from the other so that, if you shuffled the pieces and recombined them, you would wind up with an opinion that was not very different than the one with which you started. Once the Court launched in on its lengthy factual description, it was a foregone conclusion that Mr. Brooks would be found to have consented. The reasoning that supposedly connected facts and conclusion was obstinately narrow. Part of what plagues Brooks is a problem that our Court did not create, one which is common to all consent-to-search cases. Still, the Minnesota Supreme Court had the opportunity to reckon honestly with the nature of coercion in the implied-consent-to-search context but, whether from a failure of inclination or imagination, it did not do so.
The Nature of the Choice
The Brooks majority approved the Hennepin County District Court’s coercion findings: Brooks’s “will” was not “overborne”; his “capacity for self-determination” was not “critically impaired.” This is the language of the traditional Fifth and Fourteenth Amendment due process voluntariness test. It was crafted to address oppressive police methods in the interrogation room at a time when physical brutality and protracted incommunicado questioning were routinely used to extort confessions. The test had a calamitous history in the confession setting — the fact-specific voluntariness cases did not lend themselves to the kind of rule making that could help to resolve future cases, and the language of the test bordered on the metaphysical. (Justice Felix Frankfurter once likened the due process voluntariness test to “an amphibian.” Who really cares what this means? It is abstruse and imponderable, like the voluntariness test itself.)
The voluntariness test’s ineffectualness in curbing coerced confessions was the main impetus for Miranda, which has now largely displaced it. Nonetheless, seven years after Miranda, the United States Supreme Court decided in Schneckloth v. Bustamonte that the due process voluntariness test should be the measure of consent for Fourth Amendment searches as well.
“Overborne will,” with its connotations of a suspect who “breaks” or “snaps,” who experiences an event that annihilates volition, is an inadequate metaphor for the mental state that coercion induces, even in the confession context. “Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements—even those made under brutal treatment—are `voluntary’ in the sense of representing a choice of alternatives.” “Overborne will” is an even worse metaphor for the mental processes of a person who is pressured to consent to a search; coercion manifests differently in the interrogation room than it does at the side of a road or in a breathalyzer room. Consider: It is late at night; Jones is African-American; the police activate lights and sirens to effect a motor vehicle stop; they shine a flashlight into Jones’s rear windshield; the police ignore Jones when he asks why he was stopped; Jones finds himself surrounded, at gun point, by seven officers. Oh, and we want to search your car. These circumstances do not rob Jones of the capacity for volitional choice. There is “a choice of alternatives”: Jones may choose to throw cargo off a ship sinking in a storm, in the hope of sinking more slowly. Or he may choose to simply sink.
Brooks’s principal argument was that he did not voluntarily consent because he was told that his refusal to submit to testing would be a crime. He relied on Bumper v. North Carolina, in which the suspect’s grandmother told the police officers who came to her front door to “go ahead” after one of them announced, “I have a warrant.” Bumper is widely understood to stand for the proposition that mere acquiescence to a claim of lawful authority does not constitute consent. In Brooks, the Court construed Bumper so narrowly as to distort its significance. Per Brooks, Bumper holds that consent is coerced only when the police ” ‘announce[ ] in effect that the occupant has no right to resist the search.’ ” No right to resist the search is synonymous with no choice to resist the search. Brooks says, in so many words, that there is no coercion under the Fourth Amendment when a choice of alternatives presents itself. The Court’s rationale badly misapprehends the character of a coercive search encounter. There is always a choice. It is the nature of the choice that bespeaks the presence of coercion.
The Nature of the Threat
The Court toppled a due process straw man when, in the course of finding that Brooks’s will was not overborne, it observed that “Brooks was neither confronted with repeated police questioning nor was he asked to consent after having spent days in custody.” Surely, no one was urging an analogy to the film noir voluntariness cases, where suspects sweat under bright lights and relays of officers interrogate through the night. Unfortunately, the Court did not consider the example of a different part of the voluntariness due process canon, the cases dealing with promises of leniency and threats of criminal prosecution to coerce confessions. The injunction against promises and threats dates back to the common law; a case from eighteenth century England counsels that “a confession forced from the mind by the flattery of hope, or the torture of fear, comes in so questionable a shape when it is to be considered as evidence of guilt, that no credit ought to be given to it.” Minnesota’s felony Rule 15 plea petition contains an averment at line 21b that no one has threatened the accused or his family to get him to plead guilty.
The confession cases frown on false threats of criminal prosecution The threat is usually that some third party, the suspect’s wife or his brother-in-law, will be charged with a crime if the suspect does not confess. By contrast, the threat of criminal prosecution that is written into Minnesota’s implied consent advisory is true. The administration of the threat involves no police trickery or deception. Does that mean that the due process voluntariness cases are not instructive for our purposes?
I don’t think so. The due process cases teach us about the fearsome power of the threat of criminal prosecution. They help us to recognize that, in Minnesota’s criminal refusal implied consent scheme, we encounter something entirely new: a state-sanctioned threat of criminal prosecution. As a more artless Minnesota Supreme Court pointed out in Prideaux, the case Justice Stras cites, the “obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing.” Brooks swallows Neville, the Fifth Amendment case, whole. The Court reduces the issues in both cases to “the existence of a consequence for refusing to take a chemical test.” But the threat of criminal prosecution is more than a “difficult choice.” It is a dividing line that derives from centuries of Anglo-American law. It should have divided Neville and Brooks.
Which brings me to what I, personally, find most troubling about Brooks. Brooks’s conversations with his attorneys were deemed to contraindicate coercion. This strikes me as perverse. When my client calls at 3:00 a.m., I, an unwitting conscript in the corps tasked with administering the state-sanctioned threat, will inform him that his situation is even more desperate than Officer Buckle has told him. Not simply is refusing the chemical test a crime; it is a worse crime than the DWI. I shall thus assist to turn the screws on my client, and the fact that I assisted will be touted as evidence that no screws were turned.
It is a new role that I do not relish.