When the police obtain an individual's consent, they may conduct searches or seizures that the Fourth Amendment would otherwise prohibit. Consent is thus a powerful exception to that Amendment's guarantees of liberty and privacy. But consent is also fragile. Determining whether someone consented to a contested intrusion requires a sensitive review of that transaction's particular facts-what the Supreme Court has termed "the totality of the circumstances. "An irreconcilable notion of consent, however, has long persisted in state statutes and has recently surfaced in two cases at the Supreme Court: so-called "implied consent." Unlike real consent-a historical fact to be deduced by examining each specific case-"implied consent" is "consent" imputed by operation of law, irrespective of whether individuals actually consented during a particular transaction. By substituting a blanket rule for a case-specific inquiry, this legally imposed "consent" stands in tension with the Supreme Court's traditional totality-of-the-circumstances test. It also undercuts individuals' autonomy interests by denying them the right to withdraw consent, and it subverts the protections the Fourth Amendment was designed to provide.
The Fourth Amendment and the Dangerous Fiction of "Implied Consent",
48 Fla. St. U. L. Rev.