The Language of Consent in Police Encounters: Pragmatics and Implicature, Slides of Communication

Download The Language of Consent in Police Encounters: Pragmatics and Implicature and more Slides Communication in PDF only on Docsity! chapter 23 the language of consent in police encou nters j anice n adler j . d . t rout A police offi cer who is certain to get his way has no need to shout. Souter J, dissenting, Drayton , 536 U.S. 194 (2002). 23.1 Introduction In this chapter, we focus on public encounters between citizens and police offi cers in the United States. More specifi cally, we examine encounters in which police question and search citizens without probable cause or even reasonable suspicion of criminal activity. Th ese encounters are legally permitted because courts deem them “consensual.” Legal consent depends on whether a reasonable person, when confronted by the police, would feel free to end the conversation and leave, which itself turns in part on the nature of the conversation and its context. It is these conversations, embedded in their social and physical contexts, which we explore in this chapter. We argue that when police offi cers seek permission to conduct a search, citizens oft en feel enormous pressure to say yes. But in most criminal cases, judges do not acknowl- edge these pressures, generally choosing instead to spotlight the politeness and restraint of the offi cers’ language and demeanor. By ignoring the pragmatic features of the police– citizen encounter, judges are engaging in a systematic denial of the reality of the social meaning underlying these encounters, and are thereby constructing a collective legal myth designed to support current police practices in the “war on drugs.” Because con- sent searches are very common, and because the vast majority of people subjected to the language of consent in police encounters  consent searches are innocent, 1 the practice of conducting frequent consent searches comes with social and political costs. It is possible that these costs are worthwhile, at least in some cases, depending on the threat at hand. But the US Supreme Court has declined to engage in any serious analysis of this question. We begin with the practical importance of consent searches as a crime investigation tool. 23.2 The role of consent searches in criminal investigation Law enforcement practices in the United States today frequently include on-the-fl y searches to detect evidence of crime. Th ese searches are not a result of an ongoing investi- gation, but rather the result of police acting on their instincts and training regarding a per- son’s appearance or behavior or even presence in a particular place. For example, in locations where intercity (e.g. Greyhound) buses make stopovers, local police sometimes make a practice of boarding every bus as it arrives and requesting consent from passengers to search their bags and/or their persons. In airports, law enforcement offi cers use “drug courier profi les,” consisting of a list of behaviors and characteristics, to decide which pas- sengers to approach, question, and perhaps request consent to search for drugs. Consent searches oft en follow on the heels of a routine traffi c stop. Police pull over drivers for burned out tail-lights, unsignaled lane changes, and speeding. Police incen- tives to attend to such administrative violations oft en rest not on the risk posed by the violations themselves, but rather on the opportunity such stops provide for investigating “suspicious” citizens. Which citizens appear suspicious is, of course, in the eye of the beholder. Unfortunately, recently uncovered evidence demonstrates that the race and ethnicity of the driver sometimes infl uence police judgments about which cars to stop ( Ayres 2008 ; Garcia and Long 2008 ). Th e incentives to engage in this type of “drug interdiction” are now quite powerful, with the advent of federal programs that pay large sums of money to local police depart- ments to fund the war on drugs ( Bascuas 2007 ). As part of this federal program, some small towns located near an interstate highway have generated millions of dollars in rev- enue from seized cars and cash aft er local police succeeded in stopping drivers trans- porting illegal drugs ( Bascuas 2007 ). As a result, violations of minor traffi c violations are routinely parlayed into consent searches. Th us, the real purpose of many traffi c stops is 1 Because of the absence of systematic record keeping, it is diffi cult to calculate the proportion of consent searches in which the target is innocent of any crime. Th ere are, however, scattered statistics for individual localities. For example, the sheriff in one Florida county arrested only 55 of the 507 motorists subjected to consent searches over a three-year period ( Brazil and Berry 1992 ). An analysis of over 1,900 consent searches of motorists concluded that illegal drugs are discovered in about one of every eight searches ( Lichtenberg 2001 ).  language and criminal law intimidate, control, or liberate. But this won’t be obvious if we only look at the superfi cial structure of language. Fift y years of work in the philosophy of language has delivered an elaborate roadmap of the origins of meaning in communication, from posture and ges- ture to types of meaning, like conventional and speaker meaning. Leaving aside phonet- ics and phonology, linguistics is usually carved up into three main areas: syntax (the rules of linguistic well-formedness), semantics (the theory of meaning) and pragmatics (the contribution of context to meaning). In philosophy, the chief preoccupation has been with what philosophers call “truth functional semantics,” or the conditions that have to be met in order for descriptive claims (normally, declarative, factual sentences) to be deemed true or false. Accordingly, the meaning of a sentence is given by the conditions that would make it true. Th e sen- tence “Th e earth has magnetic poles” is true if and only if the earth has magnetic poles. For these kinds of statements, it doesn’t matter who says them, or how they are said. Th eir meaning is entirely a function of what states of aff airs would make them true. By contrast, pragmatics takes into account the potential impact of social norms and subtle cues that are typically expressed in language, and is informed not only by linguis- tics and philosophy, but also psychology and anthropology. Many linguistic expressions, such as commands, promises, or questions, have mean- ing but not truth conditions. “Would you leave her alone?” is a question (and interest- ingly, can also be a command of sorts), and has no truth conditions. In the case of some linguistic expressions, like questions, the same person can imply diff erent meanings by uttering the same sentences with stress on diff erent words. Th ere is nothing at all sur- prising or exotic about this fact. We see it in exchanges in every walk of life. In order to see that the very same expression can provoke very diff erent reactions, consider that classic question: “Why did Sutton rob the bank?” Now place the accent on the capitalized word, and note the answer, ratifi ed by convention and common sense: WHY did Sutton rob the bank? (He needed the money.) Why did SUTTON rob the bank? (He was the one who needed the money.) Why did Sutton ROB the bank? (He asked for the money nicely, but they wouldn’t give it to him.) Why did Sutton rob the BANK? (Th at’s where the money was.) If the appropriate answer is diff erent for each of the questions, the implicatures of emphasis go well beyond descriptive meaning. In addition, one has to be steeped in a culture to know the permissible interpretations of this question as a function of stress. Th e philosopher of language Paul Grice identifi ed and characterized the phenome- non of implicature. His theory explained and predicted what he called the “conversa- tional implicatures” that arise in ordinary conversations. Grice ( 1975 ) postulated a general “Cooperative Principle,” which posits that conversational partners cooperate with each other and will contribute what is required by the accepted purpose of the con- versation. People expect that communication will, in general, conform to this principle, so violations can be powerfully manipulative. Any individual prepared to deviate from this norm can exploit the listener’s unwitting expectation of cooperation. the language of consent in police encounters  Grice also postulated four “maxims” specifying how to be cooperative in communica- tion. Th ese maxims (quantity, quality, relevance, and manner) all document the way that subtle mechanisms of language—oft en together with the broader context—can imply meanings that go beyond the sober, descriptive use of language ( Grice 1975 ). Using a vin- tage example: Imagine a friend telling you “A man came to my offi ce” only for you later to fi nd that the man was her fi ancé, whom you know. You assume that your friend is being cooperative and adhering to the maxim of quantity, which specifi es that a speaker should provide enough information for the purposes of a conversational exchange. If your friend had been cooperative, she would have specifi ed that her fi ancé came by the offi ce. Th erefore, the use of the indefi nite article with a noun, “a man” creates an implicature that the person who came to the offi ce is not known to you (or possibly that he is but would not be of interest to you). Notice what the friend has done here. She has controlled the meaning of the expres- sion by saying something that is strictly true, but she has also manipulated you by cor- rectly predicting your reaction to her violation of selected rules of cooperative communication. In these cases, there is little honor in merely telling the truth, because it is not the whole truth, anything less than the whole truth will mislead, and the speaker designed the statement with the intent to mislead. Th e violation of these conversational maxims would seem a powerful tool for manipulation. 23.4.2 Pragmatics of police encounters Th ese pragmatic features of language play an important role in citizen–police encoun- ters, including vehicle stops, bus sweeps, airport stops, and street stops. In these encoun- ters, the police offi cer’s main purpose is to get information about what the person is doing, and get permission to do something else, like search their person, house, car, bags, etc. With the idea of pragmatic implicature now in hand, we can examine the way in which police language can be used to deprive citizens of their sense of control. If the police offi cer says or does something to diminish the citizen’s sense of control, the citizen will not feel that consent could be refused. First, consider the contrast between declarative statements and other kinds of utterances. Much communication is achieved through simple declarative sentences, like “It is raining” or “Electrons have a spin of plus or minus one half.” Th e meaning of declarative statements, like “Th e cat is on the mat” is given by its truth conditions. But questions don’t have truth conditions. As we mentioned earlier, a substantial portion of communication does not invoke declarative sentences. Indeed, what would it mean to say that a question is true? Instead, questions (“May I look in your bag?”), commands (“Hand over your valuables”), promises (“I promise to repay the debt”), recommendations (“Always pay your taxes”), etc., have what linguists and phi- losophers call “felicity conditions” ( Austin 1962 ; Alston 2000 ). 6 But once you concede 6 Th is is Austin’s (1962) original terminology.  language and criminal law that the meaning of such utterances is not a simple function of their truth conditions, you must examine all of the relevant contextual factors that contribute to their meaning in order to fi x their interpretation. In addition, because contextual factors can aff ect meaning in limitless, even if systematic, ways, there is no sense to be made—either sci- entifi c or folk—of claims about the “literal meaning” of some linguistic sequence. Its meaning can change with the identity of the speaker, tone and accent, location of the utterance (church, courthouse), and a host of other indexes. 23.4.3 Pragmatics and police authority During traffi c stops, bus sweeps, and the like, the conversation between the police offi cer and the citizen tends to be dominated by the kinds of utterances whose meaning varies widely with context ( Solan and Tiersma 2005 ). Yet, courts oft en analyze police encoun- ters as if the conversation that took place has a fi xed meaning, which can be readily gleaned without reference to the context. One way to debunk the contention that there is some obvious, literal, or uncontested interpretation of a police offi cer’s request is by the following example. Consider a back- pack owner’s reaction to the same linguistic utterance, constituted by sound alone, when delivered by a shabbily dressed passerby. Suppose such a person stops and says, “Would you mind if I look in your backpack?” Most people would feel freer to refuse the shabbily dressed passerby than the person who has identifi ed himself as a police offi cer. But if the same acoustic sequence engenders two diff erent responses depending upon the speaker, which is the “literal interpretation”? Another way to debunk the contention is to imagine how the backpack owner might respond to other sorts of communication from a police offi cer. Suppose a police offi cer says “Drop the backpack and raise your hands in the air.” Th e owner obeys. Now suppose the shabbily dressed passerby issues the same command. Th e owner laughs it off . It may be rational to comply with a police offi cer’s command (like “put your hands in the air”), but that doesn’t make it voluntary. We assume that the command is backed by force. Similarly, when the police use request language, we hear this as a command and similarly assume this is backed by force. Because people perceive discourse originating from an authority to be coercive regardless of assertive linguistic cues, authority fi gures need not use highly face-threatening language—part of that burden is carried by the badge and gun. People in positions of authority can control the message conveyed by linguistic expressions in a number of ways. Th e cues of threat go well beyond speaker intentions. Posture, mode of dress, physical proximity, location, identity, and the authority of the speaker all contribute to meaning. Th e same question may carry diff erent force, or imply diff erent meanings, when uttered by diff erent people. Suppose you are sitting on a bus, with an empty seat next to you. Suppose further that someone approaches you and says: “Would you like to move over?” Consider your reaction when the question is asked by each of the following people: the language of consent in police encounters  phrased in the form of a question, and spoken in a polite tone, is to be considered a request that can be freely refused, regardless of whether the context of the conversation strongly suggests otherwise. 13 Consider the following example. In the last bus sweep case mentioned above, U.S. v Drayton , three police offi cers boarded a Greyhound bus during a scheduled stopover in Tallahassee, Florida. Th e driver had collected all of the passenger’s tickets and taken them into the terminal to complete paperwork. One police offi cer knelt backwards in the driver’s seat; one police offi cer stood at the back of the bus; and one offi cer began questioning passengers. As he asked questions, the offi cer stood over the seated passen- ger and leaned toward them, placing his face 12–18 inches from theirs. He held up his badge and explained that he was conducting drug interdiction, and said that he would like their cooperation. He then asked permission to search their bags. During oral argument in the case, Justice Scalia made clear his opinion that the police offi cer’s utterance was merely a request, and that the words uttered would “counteract” contextual cues suggesting compulsion, such as the placement of one of the offi cers in the driver’s seat of the bus. Specifi cally, Justice Scalia asked, “Why . . . is it that the most immediate expression of the police offi cers does not counteract whatever other indica- tions of compulsion might exist under the circumstances? . . . Th ere’s a policeman in the front of the bus. Who cares? He . . . has made it very clear that he’s asking for your permis- sion.” 14 To answer Justice Scalia’s facetious question, the bus passengers are the ones who care, because they could not help notice the following: the driver and tickets were absent, one police offi cer was now in the driver’s seat, the police had eff ectively commandeered the bus, and the bus was apparently going nowhere until the police got what they wanted. But Justice Scalia and the rest of the majority in Drayton appear to see things diff erently. Pragmatic implicature falls to the wayside, and instead an offi cer’s asking of permission “counteract[s] . . . other indications of compulsion.” According to this view, the authority of armed police offi cers simply fades away when they express their desire to search in the form of a question. Ever since Drayton , lower courts have had no choice but to follow the lead of the US Supreme Court. In doing so, those courts routinely and mechanically point to the police offi cer’s polite tone of voice as a key basis for fi nding that the defendant voluntarily consented to being searched. 15 Drayton portrayed the questioning police offi cer as 13 Note that the US Supreme Court’s consent search decisions have not been unanimous, and some judges of the Court do recognize the coercive eff ects of powerful contextual factors. For example, Justice Souter, in his dissent in U.S. v Drayton , argued that the fact that the police asked politely and said “Do you mind” is irrelevant, concluding that “a police offi cer who is certain to get his way has no need to shout,” Drayton, 536 U.S. at 212. 14 Offi cial Transcript of Oral Argument, U.S. v Drayton 2002 U.S. Trans LEXIS 37 at 46. 15 United States v Awoussi , 2009 U.S. Dist. LEXIS 45680 (consent to search apartment was voluntary in part because offi cers were polite); State v Rathjen , 16 Neb. App. 799 (2008) (consent to search locked toolbox in pickup truck was voluntary in part because offi cer was “cordial and polite” when he requested consent); United States v Johnson , 2005 U.S. Dist. LEXIS 712 (2005) (consent to search car was voluntary in part because offi cers were polite); People v Palomares , 2008 Cal. App. Unpub. LEXIS 1452 (“[t]he tone of the encounter was conversational, not accusatory”).  language and criminal law courteous and courtly: “He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter. . . . Th ere was . . . no threat, and no command, not even an authoritative tone of voice.” 16 Indeed, lower courts now seem hesitant to ever fi nd that the defendant’s grant of consent to search was coerced, unearthing voluntariness even when the offi cer issues a direct command. In one recent case, the police pulled over a car and arrested the driver for driving without a license. Th e offi cer then asked the passenger if he had any drugs, and asked, “Well, do you mind if I check?” Th e passenger did not answer and did not gesture. Th e offi cer ordered the passenger out of the car. Th e passenger complied, plac- ing his hands in the air. Th e police offi cer then searched the passenger and found drugs. Unbelievably, the court held that the passenger had consented voluntarily to the search by raising his hands in the air. 17 Apparently, when the offi cer uttered the magic words, “Well, do you mind if I check?” this rendered the remainder of the encounter voluntary. Although lower courts applying the Fourth Amendment have little choice but to rou- tinely fi nd consent searches voluntary under the tightly constrained precedent that the US Supreme court has constructed, each state has its own constitution with its own ver- sion of the Fourth Amendment. A few states interpret their own constitutions to be more restrictive than the US Constitution on matters relating to government searches and seizures. New Jersey courts, for example, have interpreted their state constitution to require a higher level of scrutiny for consent searches. 18 Under this standard, the prosecution must prove that the person consenting knew that she had a choice in the matter. Further, a police offi cer making a traffi c stop is prohibited from requesting consent to search unless he or she has a “reasonable and articulable suspicion” to believe that a crime is occurring. 19 Th e New Jersey Supreme Court acknowledged that “many persons, per- haps most, would view the request of a police offi cer to make a search as having the force of law.” 20 Several other states follow a similar rule for traffi c stops. 21 Th e Supreme Court of Hawaii has gone further and applies a similar “reasonable suspicion” rule for requesting consent during any police encounter, not just traffi c stops. 22 Th e highest courts of these states have each acknowledged that when a police offi cer says, “Do you mind if I search?” the pragmatic implicature is oft en that cooperation is not just requested but required. 16 United States v Drayton , 536 U.S. at 204. 17 People v Tupper , 2009 Cal. App. Unpub. LEXIS 4908. 18 State v Carty , 170 N.J. 632, 639 (2002). 19 State v Carty , 170 N.J. at 647. 20 State v Carty , 170 N.J. at 644. 21 Th ese states include Indiana ( State v Washington , 875 N.E.2d 278 (Ind. App. 2007) ); Minnesota ( State v Fort , 660 N.W.2d 415 (Minn. 2003) ); and North Carolina ( State v McClendon , 350 N.C. 630, 517 S.E.2d 128 (N.C. 1999) ). 22 State v Quino , 840 P.2d 358 (1992). the language of consent in police encounters  23.5 Empirical evidence regarding the language of consent in police encounters Given the nature of police authority and the context of the citizen–police encounter, it is highly likely that police requests to search are oft en interpreted as commands to permit the search to take place. But the extent to which citizens feel compelled to accede to a police request is an empirical question ( Nadler 2003 ). Not much empirical evidence is available to help answer that question. But there is some, which we will review next. First, consider an illustration used by courts as the paradigmatic example of when no seizure takes place: a police offi ce approaches a citizen on a sidewalk and asks a question. Recall that if a police offi cer unlawfully seizes someone, then any subsequent search is deemed invalid. Th e US Supreme Court has characterized this kind of sidewalk encoun- ter as a “perfect example of police conduct that supports no colorable claim of seizure.” 23 Th at is to say, the Court assumes the citizen in that situation clearly feels free to termi- nate the encounter or to leave. But do people in fact feel free to terminate that type of sidewalk encounter? Kessler ( 2009 ) conducted a survey to fi nd out, and it turns out the answer is mostly, no. Respondents read a scenario in which they are walking on the sidewalk when a police offi cer approaches and says, “I have a few questions to ask you.” Respondents indicated how free they would feel to walk away or decline to talk with the offi cer. About half of the respondents indicated that they would not feel free to leave in this situation. 24 Remarkably, only about 20 percent of respondents indicated that they felt free to leave or decline. 25 Th us, most people do not in fact feel free to terminate the very type of police encounter that the Supreme Court considers the clearest example of a completely con- sensual conversation. It is clear that the Court’s conception of the level of coercion present in ordinary citizen–police encounters is greatly at odds with the conception of ordinary people when they think hypothetically about interacting with police. Moving from the hypothetical to the actual, consider next Lichtenberg’s (1999) survey of Ohio motorists who had been stopped recently by police for traffi c violations and asked for their consent to search. Of the 54 drivers interviewed, 49 reported that they had agreed to the request to search. Of these 49, all but two said they consented because they were afraid of what would happen if they said no. Th eir fears included having their trip unduly delayed, being searched anyway, incurring property damage to their car if they refused, being arrested, being beaten, or being killed. Some of these concerns were 23 Drayton , 536 U.S. at 209 (Souter, J, dissenting). 24 Th e response scale ranged from 1 to 5, where 1 was labeled “Not free to leave or say no,” 3 was labeled “Somewhat free to leave or say no,” and 5 was labeled “Completely free to leave or say no.” For each scenario (sidewalk and bus), about 50 of respondents chose 1 or 2. Kessler ( 2009 ) repeated this with a scenario in which the respondent is on a bus when the offi cer approaches, and the results were the same. 25 Th at is, only about 20 of respondents selected 4 or 5.