100 Iowa L. Rev. 1327 (2015)

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Abstract

More than 40 years ago, the United States Supreme Court decided Schneckloth v. Bustamonte. The decision, imposing a “totality of the circumstances” test to evaluate the voluntariness of consent to a search, remains the binding federal standard and the subject of pervasive criticism. In addition, consent continues to be law enforcement’s most common method to evade the constitutional requirements of both a warrant and probable cause. In its wake, state supreme courts remain free to independently interpret analogous state provisions and to either adhere to, or provide greater search protection than, the “totality of the circumstances” standard. Iowa has not yet resolved which standard Article I, Section 8 of the Iowa Constitution necessitates. This Note argues that five recent Iowa Supreme Court decisions considering the relationship between the federal and state search provisions demonstrate a perceptible shift away from the federal model. The analytical faults of Schneckloth, coupled with the numerous benefits and increased protections that a heightened standard provides, further dictate that the Iowa Supreme Court should adopt a “knowing” standard. Under this test, a suspect must know of his right to refuse consent to a search. Finally, this Note suggests that written consent forms, which either the legislative or executive branch could implement, provide the most effective method of enforcing this heightened standard of proof.