Reading rights and respecting decisions: an experimental test of consent search warnings

Abstract

ABSTRACT Consent waivers are a leading source of warrantless searches, although there is considerable debate whether these searches are truly knowing and voluntary. Scholars have called for Miranda-like warnings informing subjects of their right to refuse consent, which the Supreme Court has rejected. Some empirical evidence suggests that consent warnings would be ineffective, but no study evaluates the effectiveness of warnings suggested by Justice Thurgood Marshall, that police indicate a person may refuse consent and that the officer would respect their decision to decline. This study explores how the content of consent warnings might impact decisions to decline search requests. It was hypothesized that participants given Justice Marshall’s ‘I will respect your decision’ statement would be more likely to decline a request than a control group. The hypotheses were tested through an experimental design with vignettes read by 359 crowd-sourced internet participants. In two of the three scenarios participants who were given the Justice Marshall instructions (right to decline and officer would respect decision) had higher levels of refusal to assent to the search. The results suggest that in some contexts the nature of consent search warnings may make recipients less likely to waive their constitutional protections from unreasonable searches.