Consent, Submit, Forest, Trees
Kip Esquire has a good post, “On ‘Consenting’ versus ‘Submitting’ to a Search.” The upshot is:
If you happen to be stopped for a search such as this, you should not say “Yes I consent” or “Sure, go ahead.” Rather try saying something like “I consent to nothing, but if you are requiring me to submit to a search, then I will comply.” That may sound a little too “Borg drone,” but it should preserve your Fourth Amendment rights.
I got this wrong in a comment, and I want to discuss that a little.
I don’t believe that our Constitutional rights were intended to, or ought to, turn on a turn of phrase, or slip of tongue. They ought to be more robust than that. This brings to mind a good post at Prawfsblog, where Hillel Levin discusses missing the forest for the trees, and ends, “Missing the Quarter-Pounder for the French Fry,” which ends:
If this analysis sounds familiar to you, it is probably because I have applied the same reasoning in the past. Sometimes we lawyers are so locked into doctrinal minutia and the role of the court that we lose sight of the quarter-pounder for the french fry.
I think that Thomas’ comment in Kelo sums it up best: “Something has gone seriously awry with this court’s interpretation of the